This is the second and last of a multi-part series regarding the implications that Constitutional Appointment Clause challenges have for prior and current administrative hearings before the Department of Labor.
As Appointments Clause Challenges Continue to Rise, Should Employers and Insurance Companies be Concerned about Re-litigating the Decisions Where an ALJ has Denied Benefits?
Despite the rise in Appointments Clause challenges after Lucia, it is unlikely that a motion for reconsideration will be granted for prior decisions. Appointments Clause challenges are non-jurisdictional. This means that the challenges are subject to forfeiture and waiver. Challenges subject to forfeiture and waiver must be raised in a timely manner during the underlying case, or else the challenge will be deemed forfeited or waived. Although Lucia changed the way ALJs must be appointed, it did not change the law on forfeiture and waiver.
Furthermore, Judges have the discretion to decide whether to grant a motion for reconsideration based on an Appointments Clause challenge. Almost unanimously, courts have ruled that if the claimant failed to raise the Appointments Clause challenge at the administrative level, the challenge is forfeited. This is true, even if the original administrative hearing was decided before Lucia. Once a challenge is forfeited, it is time barred from being heard by the appellate court, thereby preventing a claimant from using an Appointments Clause challenge to get an unfavorable administrative ruling reheard by another ALJ.
For now, it appears that most courts and agencies are content with resolving Appointments Clause challenges to hearings pre-Lucia on procedural grounds. This does not mean, however, that future Appointments Clause challenges are meritless. For example, the ratifications made by Secretary Acosta do not necessarily remedy the appointment problem. Although, at the time of this writing, no one has challenged the Secretary’s blanket ratification of ALJs, such a challenge is not inconceivable.
Given this uncertainty, employers and insurance companies currently involved in DOL hearings may wish to keep the Appointments Clause challenge in mind. If used strategically, challenging a DOL ALJ appointment may prove essential in obtaining a new hearing. However, as the aftermath of Lucia shows, if you fail to raise the challenge in the initial hearing, you could lose on procedural grounds!
Navigating the administrative hearing process, like other aspects of Workers Compensation and Labor law, requires a careful understanding of DOL policies and other laws governing agency practice.