The US Supreme Court on Monday granted certiorari in two cases challenging the appointment of Social Security Administration (SSA) judges who denied the petitioners’ requests for disability benefits. Carr v. Saul and Davis v. Saul will be consolidated to decide whether an Appointments Clause challenge needs to be raised at the administrative proceeding and not in a later federal court action.

The Circuit Courts rejected Carr and Davis’ challenge of the judges’ appointments, finding the issue should have been raised at the SSA hearings. The Tenth Circuit found that the District Court did not provide enough evidence to depart from the general principle that one must raise an issue before an agency before they can seek judicial review related to the issue. The Eighth Circuit similarly found that the Appointments Clause argument was waived when they failed to raise it at the SSA.

These cases were decided just before the Supreme Court’s 2018 decision in Lucia v. Securities & Exchange Commission (SEC). The court held that SEC judges were “inferior officers” who must be appointed in accordance with the Appointments Clause of the Constitution.

The petitioners would like to reargue their case in front of a properly constitutionally-appointed SSA judge, now that the judge defects discovered in Lucia have been cured. The SSA maintains that the Appointments Clause argument should have been raised earlier.