Carr v. Saul

Summary

Principles of issue-exhaustion do not require Social Security disability claimants to argue at the agency level that the administrative law judges hearing their disability claims were unconstitutionally appointed.

Text

PRELIMINARY PRINT 
Volume 593 U. S. Part 1 
Pages 83–97 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
April 22, 2021 
REBECCA A. WOMELDORF 
reporter of decisions 
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the bound volume is published. Users are requested to notify the Reporter 
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OCTOBER TERM, 2020 83 
Syllabus 
CARR et al. v. SAUL, COMMISSIONER OF SOCIAL 
SECURITY 
certiorari to the united states court of appeals for 
the tenth circuit 
No. 19–1442. Argued March 3, 2021—Decided April 22, 2021* 
Petitioners are six individuals whose applications for disability benefts 
were denied by the Social Security Administration (SSA). They each 
unsuccessfully challenged their respective adverse beneft determina-
tion in a hearing before an SSA administrative law judge (ALJ). The 
SSA Appeals Council denied discretionary review in each case. There-
after, this Court decided Lucia v. SEC, 585 U. S. –––, which held that 
the appointment of Securities and Exchange Commission ALJs by lower 
level staff violated the Constitution's Appointments Clause. Because 
the SSA ALJs who denied petitioners' claims were also appointed by 
lower level staff, petitioners argued in federal court that they were en-
titled to a fresh administrative review by constitutionally appointed 
ALJs. In each case, the Court of Appeals held that petitioners could 
not obtain judicial review of their Appointments Clause claims because 
they failed to raise those challenges in their administrative proceedings. 
Held: The Courts of Appeals erred in imposing an issue-exhaustion re-
quirement on petitioners' Appointments Clause claims. Pp. 88–96. 
(a) Administrative review schemes commonly require parties to give 
the agency an opportunity to address an issue before seeking judicial 
review of that question. Such administrative issue-exhaustion require-
ments are typically creatures of statute or regulation. But where, as 
here, no statute or regulation imposes an issue-exhaustion requirement, 
courts decide whether to require issue exhaustion based on “an analogy 
to the rule that appellate courts will not consider arguments not raised 
before trial courts.” Sims v. Apfel, 530 U. S. 103, 108–109. “[T]he de-
sirability of a court imposing a requirement of issue exhaustion depends 
on the degree to which the analogy to normal adversarial litigation ap-
plies in a particular administrative proceeding.” Id., at 109. In Sims, 
which declined to apply an issue-exhaustion requirement to SSA Ap-
peals Council proceedings, the Court explained that “the rationale for 
requiring issue exhaustion is at its greatest” when “the parties are ex-
pected to develop the issues in an adversarial administrative proceed-
*Together with No. 20–105, Davis et al. v. Saul, Commissioner of So-
cial Security, on certiorari to the United States Court of Appeals for the 
Eighth Circuit.

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84 CARR v. SAUL 
Syllabus 
ing,” but is “much weaker” when “an administrative proceeding is not 
adversarial.” Id., at 110. Although Sims dealt with administrative re-
view before the SSA Appeals Council, much of the opinion's rationale 
applies equally to SSA ALJ proceedings. Pp. 88–91. 
(b) Even assuming that ALJ proceedings are comparatively more 
adversarial than Appeals Council proceedings, the question remains 
whether the ALJ proceedings here were adversarial enough to support 
the “analogy to judicial proceedings” that undergirds judicially created 
issue-exhaustion requirements. Sims, 530 U. S., at 112 (plurality opin-
ion). Pp. 91–96. 
(1) In the specifc context of petitioners' Appointments Clause chal-
lenges, two considerations tip the scales decidedly against imposing an 
issue-exhaustion requirement. First, agency adjudications are gener-
ally ill suited to address structural constitutional challenges, which usu-
ally fall outside the adjudicators' areas of technical expertise. See, e. g., 
Free Enterprise Fund v. Public Company Accounting Oversight Bd., 
561 U. S. 477, 491. Second, this Court has consistently recognized a 
futility exception to exhaustion requirements. See, e. g., Bethesda Hos-
pital Assn. v. Bowen, 485 U. S. 399, 405–406. Both considerations apply 
fully here: Petitioners assert purely constitutional claims about which 
SSA ALJs have no special expertise and for which they can provide no 
relief. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 
distinguished. Pp. 92–95. 
(2) The Commissioner's contention that petitioners cannot obtain 
new hearings because they did not “timely challenge” their adjudicators' 
appointments presumes what the Commissioner has failed to prove: that 
petitioners' challenges are, in fact, untimely. The Commissioner's reli-
ance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. –––, 
is misplaced, as neither decision had occasion to opine on what would 
constitute a “timely” objection in an administrative review scheme like 
the SSA's. Pp. 95–96. 
961 F. 3d 1267 and 963 F. 3d 790, reversed and remanded. 
Sotomayor, J., delivered the opinion of the Court, in which Roberts, 
C. J., and Alito, Kagan, and Kavanaugh, JJ., joined, in which Thomas, 
Gorsuch, and Barrett, JJ., joined as to Parts I, II–A, and II–B–2, and 
in which Breyer, J., joined as to Parts I, II–B–1, and II–B–2. Thomas, 
J., fled an opinion concurring in part and concurring in the judgment, in 
which Gorsuch and Barrett, JJ., joined, post, p. 96. Breyer, J., fled 
an opinion concurring in part and concurring in the judgment, post, p. 97. 
Sarah M. Harris argued the cause for petitioners in 
No. 19–1442. With her on the briefs were Lisa S. Blatt and 
Charles L. McCloud. Kannon K. Shanmugam fled a brief

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Opinion of the Court 
for petitioners in No. 20–105. With him on the briefs were 
William T. Marks, Joel S. Johnson, and Mahesha P . 
Subbaraman. 
Austin L. Raynor argued the cause for respondent in both 
cases. With him on the brief were Acting Solicitor General 
Prelogar, Acting Assistant Attorney General Boynton, Dep-
uty Solicitor General Kneedler, Vivek Suri, Mark B. Stern, 
Joshua M. Salzman, and Daniel Aguilar.† 
Justice Sotomayor delivered the opinion of the Court. 
When the Social Security Administration (SSA) denies a 
claim for disability benefts, a claimant who wishes to contest 
that decision in federal court must frst seek a hearing before 
an administrative law judge (ALJ). The petitioners here 
did just that: They each unsuccessfully challenged an adverse 
benefts determination in ALJ proceedings, and they now 
ask for judicial review. Specifcally, petitioners argue that 
they are entitled to new hearings before different ALJs 
because the ALJs who originally heard their cases were 
not properly appointed under the Appointments Clause of 
the U. S. Constitution. The question for the Court is 
whether petitioners forfeited their Appointments Clause 
challenges by failing to make them frst to their respective 
ALJs. The Court holds that petitioners did not forfeit 
their claims. 
†Briefs of amici curiae urging reversal in both cases were fled for the 
Institute for Justice by Robert E. Johnson and Anthony Sanders; for the 
National Association of Disability Representatives by Chanakya A. Sethi 
and Rakesh N. Kilaru; for the National Organization of Social Security 
Claimants Representatives et al. by Carolyn A. Kubitschek, Barbara R. 
Silverstone, Barbara Jones, Thomas D. Sutton, and Robert E. Rains; 
for the New Civil Liberties Alliance et al. by Jared McClain, Richard 
Samp, and Ilya Shapiro; for the Pacifc Legal Foundation by Brian T. 
Hodges and Oliver J. Dunford; and for Social Security Scholars et al. by 
Jon C. Dubin. 
Alan B. Morrison and Richard J. Pierce, Jr., fled a brief in both cases 
for the Collective of Social Security Administration Administrative Law 
Judges.

86 CARR v. SAUL 
Opinion of the Court 
I 
The six petitioners in these consolidated cases each applied 
for disability benefts between 2013 and 2015. 1 After their 
applications were denied, petitioners followed the prescribed 
steps for seeking administrative review. They sought re-
consideration of the agency's initial determination, received 
a hearing before an ALJ, and requested review by the SSA's 
Appeals Council. See 20 CFR § 404.900(a). Petitioners 
were unsuccessful at every stage, concluding with the Ap-
peals Council, which denied discretionary review. 
This Court then held in Lucia v. SEC, 585 U. S. ––– (2018), 
that ALJs within the Securities and Exchange Commission 
(SEC) had been unconstitutionally appointed. Under the 
Appointments Clause, only the President, “Courts of Law,” 
or “Heads of Departments” may appoint “Offcers of the 
United States.” Art. II, § 2, cl. 2; see Lucia, 585 U. S., 
at –––. The Lucia Court determined that SEC ALJs were 
“Offcers” rather than mere employees because they held “a 
continuing offce established by law,” exercised “ `signifcant 
discretion' when carrying out . . . `important functions,' ” 
and often had the last word in SEC proceedings. Id., 
at ––– – –––. Consequently, the appointment of SEC ALJs 
by SEC staff violated the Constitution. Id., at –––, –––. 
Like the SEC ALJs at issue in Lucia, SSA ALJs had been 
selected by lower level staff rather than appointed by the 
head of the agency. On July 16, 2018, a few weeks after 
Lucia was decided, the SSA's Acting Commissioner pre-
emptively “address[ed] any Appointments Clause questions 
involving Social Security claims” by “ratif[ying] the appoint-
ments” of all SSA ALJs and “approv[ing] those appointments 
1 The Social Security Act provides disability benefts under two pro-
grams, Title II and Title XVI. Some petitioners sought benefts under 
Title II only, some under Title XVI only, and some under both. The dis-
tinctions between the two programs are irrelevant for present purposes. 
For ease of reference, this opinion cites only to the regulations governing 
Title II, found at 20 CFR pt. 404 (2020). 
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Opinion of the Court 
as her own.” 84 Fed. Reg. 9583 (2019). The following year, 
the SSA issued a ruling stating that the Appeals Council 
should, in response to timely requests for Appeals Council 
review, vacate preratifcation ALJ decisions and provide 
fresh review by a properly appointed adjudicator. Ibid. 
That remedy was only available, however, to claimants who 
had raised an Appointments Clause challenge in either their 
ALJ or Appeals Council proceedings. Ibid. Claimants who 
had not objected to the ALJs' appointments in their adminis-
trative proceedings would receive no relief. See ibid. 
Petitioners fell into this latter category. By the time the 
SSA issued its ruling, their administrative proceedings had 
concluded, and they were seeking review of the SSA's deci-
sions in federal court. Following Lucia, each petitioner 
asked the Federal District Court (or, in some cases, the Fed-
eral Magistrate Judge) for a new hearing before a constitu-
tionally appointed ALJ. The Commissioner did not dispute 
that the ALJs who decided petitioners' cases were unconsti-
tutionally appointed, but contended instead that petitioners 
had forfeited their Appointments Clause challenges by fail-
ing to raise them before the agency. 
In three separate decisions (covering all six petitioners), 
the U. S. Courts of Appeals for the Eighth and Tenth Cir-
cuits adopted the Commissioner's forfeiture argument. In 
those Circuits' view, petitioners could not obtain judicial re-
view of their Appointments Clause claims because they had 
not pressed those challenges in their administrative proceed-
ings. 963 F. 3d 790, 793 (CA8 2020); 964 F. 3d 759, 763 (CA8 
2020); Carr v. Commissioner, SSA, 961 F. 3d 1267, 1268 
(CA10 2020). The Third, Fourth, and Sixth Circuits have all 
held the opposite. In those Circuits, claimants may chal-
lenge the constitutionality of an SSA ALJ's appointment for 
the frst time in federal court. See Cirko v. Commissioner 
of Social Security , 948 F. 3d 148, 152 (CA3 2020); Probst v. 
Saul, 980 F. 3d 1015, 1020 (CA4 2020); Ramsey v. Commis-
sioner of Social Security , 973 F. 3d 537, 546 (CA6 2020). 
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88 CARR v. SAUL 
Opinion of the Court 
The Court granted certiorari to resolve this confict. 592 
U. S. ––– (2020). 
II 
Administrative review schemes commonly require parties 
to give the agency an opportunity to address an issue before 
seeking judicial review of that question. The source of this 
requirement (known as issue exhaustion) varies by agency.
2 
Typically, issue-exhaustion rules are creatures of statute or 
regulation. Sims v. Apfel, 530 U. S. 103, 107–108 (2000); see 
United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 
33, 36, n. 6 (1952) (collecting statutes). Where statutes and 
regulations are silent, however, courts decide whether to re-
quire issue exhaustion based on “an analogy to the rule that 
appellate courts will not consider arguments not raised be-
fore trial courts.” Sims, 530 U. S., at 108–109. The Com-
missioner concedes that no statute or regulation obligated 
petitioners to raise their Appointments Clause challenges in 
administrative proceedings. See Brief for Respondent 12, 
35, n. 2; Tr. of Oral Arg. 39. Instead, the Commissioner asks 
this Court to impose a judicially created issue-exhaustion re-
quirement in these cases. 
A 
“[T]he desirability of a court imposing a requirement of 
issue exhaustion depends on the degree to which the analogy 
to normal adversarial litigation applies in a particular admin-
istrative proceeding.” Sims, 530 U. S., at 109. In conduct-
ing this inquiry, courts must take care not to “refexively 
`assimilat[e] the relation of . . . administrative bodies and the 
courts to the relationship between lower and upper courts.' ” 
Id., at 110 (quoting FCC v. Pottsville Broadcasting Co., 309 
2 Issue exhaustion should not be confused with exhaustion of administra-
tive remedies. There is no dispute in these cases that petitioners ex-
hausted their administrative remedies, meaning that they proceeded 
through each step of the SSA's administrative review scheme and received 
a “fnal decision” before seeking judicial review. See 42 U. S. C. § 405(g). 
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Cite as: 593 U. S. 83 (2021) 89 
Opinion of the Court 
U. S. 134, 144 (1940)). Instead, “[t]he inquiry requires 
careful examination of `the characteristics of the particular 
administrative procedure provided.' ” 530 U. S., at 113 
(O'Connor, J., concurring in part and concurring in judg-
ment) (quoting McCarthy v. Madigan, 503 U. S. 140, 146 
(1992)). The critical feature that distinguishes adversarial 
proceedings from inquisitorial ones is whether claimants 
bear the responsibility to develop issues for adjudicators' 
consideration.
3 
With respect to the nature of the SSA proceedings at issue 
here, our inquiry starts from the baseline set by Sims v. 
Apfel. There, this Court held that issues not raised before 
the Appeals Council (the fnal stage of administrative review 
within the SSA) are nonetheless preserved for judicial re-
view. In so holding, the Court explained that “the rationale 
for requiring issue exhaustion is at its greatest” when “the 
parties are expected to develop the issues in an adversarial 
administrative proceeding,” but “the reasons for a court to 
require issue exhaustion are much weaker” when “an admin-
istrative proceeding is not adversarial.” 530 U. S., at 110. 
The plurality went on to explain that “[t]he differences be-
tween courts and agencies are nowhere more pronounced 
3 The Commissioner invokes the “general rule,” recognized in cases such 
as L. A. Tucker Truck Lines, that “orderly procedure and good adminis-
tration require that objections to the proceedings of an administrative 
agency be made while it has opportunity for correction in order to raise 
issues reviewable by the courts.” United States v. L. A. Tucker Truck 
Lines, Inc., 344 U. S. 33, 37 (1952); see also Hormel v. Helvering, 312 U. S. 
552, 557 (1941); Unemployment Compensation Comm'n of Alaska v. Ara-
gon, 329 U. S. 143, 154–155 (1946). That general rule, however, originated 
in cases that “each involved an adversarial proceeding.” Sims v. Apfel, 
530 U. S. 103, 110 (2000). Where claimants are not expected to develop 
certain issues in ALJ proceedings, it is generally inappropriate to treat 
those issues as forfeited. See id., at 109 (“[C]ourts require administrative 
issue exhaustion `as a general rule' because it is usually `appropriate under 
[an agency's] practice' for `contestants in an adversary proceeding' before 
it to develop fully all issues there” (quoting L. A. Tucker Truck Lines, 344 
U. S., at 36–37)). 
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90 CARR v. SAUL 
Opinion of the Court 
than in Social Security proceedings,” where administrative 
“proceedings are inquisitorial rather than adversarial.” Id., 
at 110–111. Regulations governing SSA proceedings “ex-
pressly provide that the SSA `conduct[s] the administrative 
review process in an informal, nonadversary manner' ” and 
assures claimants that the SSA “ `will consider at each step 
of the review process any information you present as well as 
all the information in our records.' ” Id., at 111 (quoting 20 
CFR § 404.900(b) (1999)). At the Appeals Council level, “the 
Council's review is plenary unless it states otherwise.” 
Sims, 530 U. S., at 111 (plurality opinion). Rather than ap-
pear “as a litigant opposing the claimant,” the Commissioner 
serves “just as an adviser to the Council.” Ibid. Claimants 
are not required to fle a brief; indeed, the SSA's standard 
form “provides only three lines for [a claimant's] request for 
review.” Id., at 112. A notice “accompanying the form es-
timates that it will take only 10 minutes to `read the instruc-
tions, gather the necessary facts and fll out the form.' ” 
Ibid. Thus, in the context of Appeals Council review, the 
plurality observed that the “adversarial development of is-
sues by the parties . . . on which [the judicial-proceedings] 
analogy depends simply does not exist.” Ibid. 
Justice O'Connor concurred in the judgment. In her view, 
“the agency's failure to notify claimants of an issue exhaus-
tion requirement” provided a “suffcient basis” for refusing 
to impose one by judicial decree. Id., at 113. “Requiring 
issue exhaustion is particularly inappropriate,” she ex -
plained, “where the regulations and procedures of the [SSA] 
affrmatively suggest that specifc issues need not be raised 
before the Appeals Council.” Ibid. 
Much of what the Sims opinions said about Appeals Coun-
cil review applies equally to ALJ proceedings. The Sims 
plurality itself noted that “[i]t is the ALJ's duty to investi-
gate the facts and develop the arguments both for and 
against granting benefts” and that “[t]he Commissioner has 
no representative before the ALJ to oppose the claim for

Cite as: 593 U. S. 83 (2021) 91 
Opinion of the Court 
benefts.” Id., at 111. The SSA regulations that ensure 
informal, nonadversarial proceedings and plenary review 
apply as much to ALJs as to the Appeals Council. See 20 
CFR § 404.900(b). Regulations also provide that ALJs will 
“loo[k] fully into the issues” themselves, § 404.944, and may 
“raise a new issue” at “any time . . . before mailing notice of 
the hearing decision,” § 404.946(b)(1). Like the form sup-
plied by the SSA to request Appeals Council review, the 
form to request an ALJ hearing provides roughly three lines 
for claimants to explain their disagreement with the agency's 
determination, and the SSA “estimate[s]” that it will take 
just “10 minutes to read the instructions, gather the facts, 
and answer the questions” on that form. SSA, Request for 
Hearing by Administrative Law Judge, Form HA–501–U5. 
Last, as with the Appeals Council, SSA “regulations provide 
no notice that claimants must . . . raise specifc issues before” 
the ALJ “to preserve them for review in federal court.” 
Sims, 530 U. S., at 113 (opinion of O'Connor, J.). 
B 
The parallels between ALJ and Appeals Council proceed-
ings are many, but the Commissioner correctly notes several 
differences that may make ALJ hearings relatively more ad-
versarial. For one, ALJ hearings are typically available as 
a matter of right, while Appeals Council review is discretion-
ary. Compare 20 CFR § 404.957 with § 404.967. Most 
claimants thus submit no more than a one-page request for 
review to the Appeals Council before having their request 
denied. Mandatory ALJ proceedings, by contrast, present 
far more opportunities for claimants to press issues, and the 
SSA consequently relies more heavily on those proceedings 
to “conduc[t the agency's] principal and most thorough inves-
tigation of . . . disability claim[s].” Brief for Respondent 35– 
36. Additionally, before every hearing, the SSA mails claim-
ants a “notice of hearing” that includes logistical information 
and lists the “[t]he specifc issues to be decided in [the] case.” 
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92 CARR v. SAUL 
Opinion of the Court 
§ 404.938(b)(1). Claimants must notify the ALJ in writing if 
they “object to the issues to be decided at the hearing.” 4 
§ 404.939. Similarly, SSA confict-of-interest regulations in-
struct claimants to “notify the [ALJ] at [the] earliest oppor-
tunity” if they “object to the [ALJ] who will conduct [their] 
hearing.” § 404.940. 
Even accepting that ALJ proceedings may be compara-
tively more adversarial than Appeals Council proceedings, 
the question nonetheless remains whether the ALJ proceed-
ings at issue here were adversarial enough to support the 
“analogy to judicial proceedings” that undergirds judicially 
created issue-exhaustion requirements. Sims, 530 U. S., 
at 112 (plurality opinion). In the specifc context of pe-
titioners' Appointments Clause challenges, two additional 
considerations tip the scales decidedly against imposing an 
issue-exhaustion requirement.
5 
1 
First, this Court has often observed that agency adjudica-
tions are generally ill suited to address structural constitu-
tional challenges, which usually fall outside the adjudicators' 
areas of technical expertise. See, e. g., Free Enterprise 
Fund v. Public Company Accounting Oversight Bd., 561 
U. S. 477, 491 (2010); Califano v. Sanders, 430 U. S. 99, 109 
(1977); Weinberger v. Salfi, 422 U. S. 749, 765 (1975). As 
such, it is sometimes appropriate for courts to entertain con-
stitutional challenges to statutes or other agency-wide poli-
cies even when those challenges were not raised in adminis-
trative proceedings.
6 See, e. g., Mathews v. Diaz, 426 U. S. 
4 As discussed above, see supra, at 88, the Commissioner “do[es] not 
argue that these regulations themselves impose a forfeiture rule that ap-
plies here.” Brief for Respondent 35, n. 2. 
5 Outside the context of Appointments Clause challenges, such as in the 
sphere of routine objections to individual benefts determinations, the 
scales might tip differently. 
6 Contrary to the Commissioner's assertion, Richardson v. Perales, 402 
U. S. 389 (1971), has no bearing on whether an issue-exhaustion require-
ment is appropriate in these cases. In Perales, the Court rejected a 
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Opinion of the Court 
67, 76–77 (1976). Thus, this Court observed in Mathews v. 
Eldridge, 424 U. S. 319 (1976), that, so long as a Social Secu-
rity claimant “had exhausted the full set of available admin-
istrative review procedures” (as petitioners did here), “fail-
ure to have raised his constitutional claim would not bar him 
from asserting it later in a district court.” Id., at 329, n. 10. 
Second, this Court has consistently recognized a futility 
exception to exhaustion requirements. See, e. g., Bethesda 
Hospital Assn. v. Bowen, 485 U. S. 399, 405–406 (1988); Mon-
tana Nat. Bank of Billings v. Yellowstone County, 276 U. S. 
499, 505 (1928). It makes little sense to require litigants to 
present claims to adjudicators who are powerless to grant 
the relief requested. Such a vain exercise will rarely “pro-
tec[t] administrative agency authority” or “promot[e] judicial 
effciency.” McCarthy, 503 U. S., at 145. 
Both considerations apply fully here: Petitioners assert 
purely constitutional claims about which SSA ALJs have no 
special expertise and for which they can provide no relief. 
Relying on L. A. Tucker Truck Lines, the Commissioner ar-
gues that it nevertheless would have been fruitful for peti-
tioners to raise Appointments Clause challenges in their ALJ 
hearings because “ `[r]epetition of the objection' in multiple 
cases could have led `to a change of policy.' ” Brief for Re-
spondent 45 (quoting L. A. Tucker Truck Lines, 344 U. S., at 
37). But the Commissioner misses a key distinction: In 
L. A. Tucker Truck Lines, the aggrieved litigant had the 
opportunity to object to the relevant method of appointment 
before the full Interstate Commerce Commission itself. Id., 
at 34. Repetition of such an objection in cases before the 
claimant's procedural due process challenge to the admissibility of an ad-
verse medical report, explaining (among other reasons) that “[a]lthough 
the claimant complain[ed] of the lack of opportunity to cross-examine the 
reporting physicians, he did not take advantage of the opportunity” to 
subpoena the physicians. Id., at 404. Perales thus stands for the uncon-
troversial (and irrelevant) proposition that a claimant is not denied due 
process if he declines to take advantage of the adequate procedures avail-
able to him. 
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94 CARR v. SAUL 
Opinion of the Court 
full Commission might have persuaded it to change its “pre-
determined policy on th[e] subject.” Id., at 37. Here, by 
contrast, the SSA's administrative review scheme at no point 
afforded petitioners access to the Commissioner, the one 
person who could remedy their Appointments Clause chal-
lenges. Nor were the ALJs capable of remedying any de-
fects in their own appointments. After all, there were no 
Commissioner-appointed ALJs to whom objecting claimants' 
cases could be transferred, and the ALJs could not very well 
have reappointed themselves. 
Internal SSA guidance confrms as much. On January 30, 
2018, soon after this Court granted certiorari in Lucia, the 
agency issued an “emergency message” to ALJs advising 
them that “adjudicators may see challenges . . . related to 
the constitutionality of the appointment of SSA's ALJs.” 
SSA, EM–18003: Important Information Regarding Possi-
ble Challenges to the Appointment of Administrative Law 
Judges in SSA's Administrative Process, p. 2. The agency 
warned ALJs that, because the “SSA lacks the authority to 
fnally decide constitutional issues such as these,” they 
should “not discuss or make any fndings related to the Ap-
pointments Clause issue on the record.” Ibid. Instead, 
ALJs were directed to acknowledge any Appointments 
Clause objections with standardized language explaining 
that they “ `d[id] not have the authority to rule on that 
challenge.' ” Ibid. The SSA reiterated these instructions 
in a second emergency message issued shortly after 
Lucia was decided.
7 See SSA, EM–18003 REV: Important 
7 Although the agency issued its internal guidance several months after 
petitioners' ALJ hearings concluded, there is no indication that the ALJs 
would or could have adjudicated an Appointments Clause challenge at any 
time. Moreover, as a practical matter, the agency's emergency messages 
belie the Commissioner's suggestion that the SSA would have changed 
course if only it had been “ `put on notice of the accumulating risk of whole-
sale reversals.' ” Brief for Respondent 45 (quoting L. A. Tucker Truck 
Lines, 344 U. S., at 37). 
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Opinion of the Court 
Information Regarding Possible Challenges to the Appoint-
ment of Administrative Law Judges in SSA's Administra-
tive Process—UPDATE, pp. 1–2 (June 25, 2018). It was not 
until March 2019 that the Acting Commissioner fnally in-
structed the Appeals Council on how to handle preratifca-
tion Appointments Clause challenges. See 84 Fed. Reg. 
9582; supra, at 87. 
2 
Taking a somewhat different tack, the Commissioner con-
tends that petitioners are not entitled to new hearings before 
constitutionally appointed ALJs because they failed to make 
“timely challenge[s]” to their adjudicators' appointments. 
Ryder v. United States, 515 U. S. 177, 182 (1995); Lucia, 585 
U. S., at ––– (quoting Ryder). That argument, however, pre-
sumes what the Commissioner has failed to prove: that peti-
tioners' challenges are, in fact, untimely. The Commissioner 
relies on Ryder and Lucia, but neither of those decisions 
had occasion to opine on what would constitute a “timely” 
objection in an administrative review scheme like the SSA's. 
Ryder involved an appeal from a Coast Guard court-martial, 
515 U. S., at 179, an adversarial proceeding in which tradi-
tional forfeiture rules apply, see United States v. Gladue, 67 
M. J. 311, 313 (C. A. Armed Forces 2009). Lucia, meanwhile, 
arose from proceedings before the Securities and Exchange 
Commission, 585 U. S., at ––– – –––, in which a statutory 
issue-exhaustion requirement applies, see 15 U. S. C. 
§ 78y(c)(1). Where, as here, claimants are not required to 
exhaust certain issues in administrative proceedings to pre-
serve them for judicial review, claimants who raise those is-
sues for the frst time in federal court are not untimely in 
doing so. 
* * * 
Taken together, the inquisitorial features of SSA ALJ pro-
ceedings, the constitutional character of petitioners' claims, 
and the unavailability of any remedy make clear that “adver-
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96 CARR v. SAUL 
Opinion of Thomas, J. 
sarial development” of the Appointments Clause issue “sim-
ply [did] not exist” (and could not exist) in petitioners' ALJ 
proceedings. Sims, 530 U. S., at 112 (plurality opinion). 
The Courts of Appeals therefore erred in imposing an issue-
exhaustion requirement on petitioners' Appointments Clause 
claims. The judgments of the Eighth and Tenth Circuits are 
reversed, and the cases are remanded for further proceed-
ings consistent with this opinion. 
It is so ordered. 
Justice Thomas, with whom Justice Gorsuch and Jus-
tice Barrett join, concurring in part and concurring in 
the judgment. 
I join Parts I, II–A, and II–B–2 of the opinion of the Court, 
which correctly explain that the nonadversarial nature of an 
agency proceeding generally gives good reason to refrain 
from creating an issue-exhaustion requirement. See Sims 
v. Apfel, 530 U. S. 103, 109–110 (2000). Proceedings before 
an administrative law judge (ALJ) of the Social Security Ad-
ministration are plainly nonadversarial: The regulations as-
sure claimants that the agency will “conduct the administra-
tive review process in an informal, non-adversarial manner.” 
20 CFR § 404.900(b) (2020). ALJs can raise new issues 
sua sponte . §§ 404.944, 404.946. Hearings are so informal 
that lawyers, briefs, and even attendance are often optional. 
§§ 404.948–404.950. And should an ALJ err, the Appeals 
Council may review cases to correct anything from “error[s] 
of law” to “broad policy or procedural issue[s] that may affect 
the general public interest.” § 404.970(a). This decidedly 
pro-claimant, inquisitorial process is quite unlike an adver-
sarial suit in which parties are expected to identify, argue, 
and preserve all issues. 
To be sure, a few regulatory provisions direct claimants to 
advocate on their own behalf by objecting to problems, in-
cluding if the agency misidentifes issues before the hearing 
or if the ALJ is “prejudiced or partial.” §§ 404.938–404.940. 
Page Proof Pending Publication

Cite as: 593 U. S. 83 (2021) 97 
Opinion of Breyer, J. 
But these unsurprising reminders that a claimant should not 
sit idly on the sidelines hardly demand that the penalty for 
overlooking an argument is forfeiture. On the contrary, 
such a permanent consequence would be surprising in light 
of the fexible, “informal” mechanisms that undergird the en-
tire agency review process. § 404.900(b); see also Sims, 530 
U. S., at 110 (plurality opinion) (“The differences between 
courts and agencies are nowhere more pronounced than in 
Social Security proceedings”). 
Because these proceedings bear little resemblance to ad-
versarial litigation, I agree with the Court that there is 
no need for an exhaustion rule. I would end the analysis 
there. 
Justice Breyer , concurring in part and concurring in 
the judgment. 
I continue to believe that, “[u]nder ordinary principles of 
administrative law a reviewing court will not consider argu-
ments that a party failed to raise in timely fashion before an 
administrative agency.” Sims v. Apfel, 530 U. S. 103, 114 
(2000) (Breyer , J., dissenting). I also adhere to my prior 
view that, in the particular context of the Social Security 
Administration, a claimant “ordinarily must raise all relevant 
issues before the ALJ” and that the “nonadversarial nature” 
of the agency's procedures is generally irrelevant to whether 
the ordinary rule requiring issue exhaustion ought to apply. 
Id., at 117. Here, however, I agree with the Court that the 
Appointments Clause challenges at issue fall into the well-
established exceptions for constitutional and futile claims. 
See ante, at 92–95; see also Sims, 530 U. S., at 115 (Breyer , 
J., dissenting); Woodford v. Ngo, 548 U. S. 81, 103 (2006) 
(Breyer, J., concurring in judgment); Ross v. Blake, 578 
U. S. 632, 649 (2016) (Breyer , J., concurring in part) (recog-
nizing these traditional exceptions). I therefore join Parts 
I, II–B–1, and II–B–2 of the Court's opinion and concur in 
the Court's judgment. 
Page Proof Pending Publication

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 593 U. S. Part 1 Pages 83–97 OFFICIAL REPORTS OF THE SUPREME COURT April 22, 2021 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notif…

• #2

  sirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation ap- plies in a particular administrative proceeding.” Id., at 109. In Sims, which declined to apply an issue-exhaustion requirement to SSA Ap- peals Council proceedings, the …

• #3

  petitioners' challenges are, in fact, untimely. The Commissioner's reli- ance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. –––, is misplaced, as neither decision had occasion to opine on what would constitute a “timely” objection in an administrative review scheme like the SSA's. Pp. 95–96. 961 …

• #4

  Institute for Justice by Robert E. Johnson and Anthony Sanders; for the National Association of Disability Representatives by Chanakya A. Sethi and Rakesh N. Kilaru; for the National Organization of Social Security Claimants Representatives et al. by Carolyn A. Kubitschek, Barbara R. Silverstone, Barbara Jones, Th…

• #5

  1 The Social Security Act provides disability benefts under two pro- grams, Title II and Title XVI. Some petitioners sought benefts under Title II only, some under Title XVI only, and some under both. The dis- tinctions between the two programs are irrelevant for present purposes. For ease of reference, this opini…

• #6

  of Social Security , 948 F. 3d 148, 152 (CA3 2020); Probst v. Saul, 980 F. 3d 1015, 1020 (CA4 2020); Ramsey v. Commis- sioner of Social Security , 973 F. 3d 537, 546 (CA6 2020). Page Proof Pending Publication 88 CARR v. SAUL Opinion of the Court The Court granted certiorari to resolve this confict. 592 U. S. ––…

• #7

  administrative procedure provided.' ” 530 U. S., at 113 (O'Connor, J., concurring in part and concurring in judg- ment) (quoting McCarthy v. Madigan, 503 U. S. 140, 146 (1992)). The critical feature that distinguishes adversarial proceedings from inquisitorial ones is whether claimants bear the responsibility to …

• #8

  “proceedings are inquisitorial rather than adversarial.” Id., at 110–111. Regulations governing SSA proceedings “ex- pressly provide that the SSA `conduct[s] the administrative review process in an informal, nonadversary manner' ” and assures claimants that the SSA “ `will consider at each step of the review proc…

• #9

  the hearing decision,” § 404.946(b)(1). Like the form sup- plied by the SSA to request Appeals Council review, the form to request an ALJ hearing provides roughly three lines for claimants to explain their disagreement with the agency's determination, and the SSA “estimate[s]” that it will take just “10 minutes t…

• #10

  titioners' Appointments Clause challenges, two additional considerations tip the scales decidedly against imposing an issue-exhaustion requirement. 5 1 First, this Court has often observed that agency adjudica- tions are generally ill suited to address structural constitu- tional challenges, which usually fall …

• #11

  purely constitutional claims about which SSA ALJs have no special expertise and for which they can provide no relief. Relying on L. A. Tucker Truck Lines, the Commissioner ar- gues that it nevertheless would have been fruitful for peti- tioners to raise Appointments Clause challenges in their ALJ hearings because…

• #12

  fnally decide constitutional issues such as these,” they should “not discuss or make any fndings related to the Ap- pointments Clause issue on the record.” Ibid. Instead, ALJs were directed to acknowledge any Appointments Clause objections with standardized language explaining that they “ `d[id] not have the auth…

• #13

  Commission, 585 U. S., at ––– – –––, in which a statutory issue-exhaustion requirement applies, see 15 U. S. C. § 78y(c)(1). Where, as here, claimants are not required to exhaust certain issues in administrative proceedings to pre- serve them for judicial review, claimants who raise those is- sues for the frst ti…

• #14

  cluding if the agency misidentifes issues before the hearing or if the ALJ is “prejudiced or partial.” §§ 404.938–404.940. Page Proof Pending Publication Cite as: 593 U. S. 83 (2021) 97 Opinion of Breyer, J. But these unsurprising reminders that a claimant should not sit idly on the sidelines hardly demand that …