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  • Writer's pictureElizabeth Slattery

Dahle v. Kijakazi

This petition was denied on January 8, 2024.


Why do we care?

The President is accountable to the American people for actions taken by officials in his or her administration. The Federal Vacancies Reform Act of 1998 (FVRA) is a stop-gap measure to ensure that someone temporarily will be in place to keep executive departments and agencies running, even without a presidentially appointed and Senate confirmed head. Dahle v. Kijakazi concerns the Social Security Administration (SSA), which has been run by acting officials for the better part of the past ten years.

What's the background?

Principal officers of the United States, such as cabinet officials and agency heads, must be appointed by the President and confirmed by the Senate.

First assistant to the Commissioner is not to be confused with assistant to the regional manager.

The FVRA allows certain individuals to temporarily fill principal officer positions. The law allows the "first assistant" to the principal officer or another officer or employee selected by the President to serve in an acting capacity for 210 days after the vacancy occurs or while a nomination is pending in the Senate. In NLRB v. SW General, Inc., the Court clarified that the same person may not be nominated and serve as the acting official while that nomination is pending.


Tell me more.

On December 23, 2016, President Obama issued a memo on SSA's order of succession, detailing that in the event that both the Commissioner (a principal officer) and Deputy Commissioner (first assistant) offices were vacant, the Deputy Commissioner for Operations would serve as Acting Commissioner. Both offices were vacant in January 2017, so Deputy Commissioner for Operations Nancy Berryhill began serving as Acting Commissioner. The Government Accountability Office notified President Trump in March 2018 that Berryhill exceeded the FVRA's time limit and she stopped serving as Acting Commissioner. Trump submitted a nomination for SSA Commissioner to the Senate in April 2018, and Berryhill resumed service as Acting Commissioner.

In June 2018, the Supreme Court held in Lucia v. SEC that SEC's administrative law judges are officers of the United States who must be appointed by the President, courts, or department heads, consistent with the Appointments Clause of the Constitution. The SSA employs around 1,500 administrative law judges. In July 2018 (while Trump's nominee was still pending in the Senate), Acting Commissioner Berryhill ratified the appointment of all SSA administrative law judges to head off concerns about the constitutionality of their appointment.


Brian Dahle was denied SSA disability benefits by an administrative law judge. He appealed that denial to the United States District Court for the District of Minnesota, challenging the administrative law judge's authority to decide his claim on the theory that the judge was not properly appointed and Acting Commissioner Berryhill had no power to ratify the appointment.

How did this case get to SCOTUS?

The district court agreed with Dahle, explaining that Berryhill was not properly serving as Acting Commissioner at the time she ratified the administrative law judges' appointments. The court remanded to the SSA for a new hearing before a properly appointed administrative law judge.

The SSA appealed to the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit reversed, concluding that Berryhill's first stint as Acting Commissioner exceeding the 210-day limit did not preclude her resuming service as Acting Commissioner after Trump sent a nomination to the Senate. The panel also rejected Dahle's argument that Obama's succession order could not carry over to the next administration. Dahle has petitioned the Supreme Court for review.

What are the questions presented to the Court ?

  1. Whether the FVRA's time limit on acting service is a 210-day grant of time and a tolling provision that extends the grant only if the President submits a nomination before the grant expires.

  2. Whether the FVRA requires the President's affirmative approval of any acting officer who is appointed during the President's administration.

Click here to view the docket.

DISCLAIMER: Anastasia's employer, the Cato Institute, filed an amicus brief in support of the petitioner.


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