“The Flinton Rule” – A Second-Circuit Mandate for Reassignment to a New ALJ After Any Unremedied Appointments-Clause Violation

1. Introduction

Flinton v. Commissioner of Social Security, Docket No. 23-7715-cv (2d Cir. July 2, 2025), adds a powerful new chapter to the post-Lucia jurisprudence governing federal administrative adjudications. At its core, the case concerns whether a Social Security claimant who was initially denied benefits by an improperly appointed administrative law judge (ALJ), and whose claim was remanded on other (merits-based) grounds, must nevertheless obtain a completely fresh hearing before a different, properly appointed ALJ.

The Second Circuit answered with an emphatic “yes,” aligning itself with the Fourth and Ninth Circuits and adopting what this commentary dubs “The Flinton Rule.” Under this rule, once an Appointments-Clause defect taints an adjudication, the only cure—absent the “rule of necessity”—is de novo review before a new, validly appointed adjudicator, even if the earlier decision has already been vacated for substantive errors.

2. Case Background

Parties. Plaintiff-Appellant: Mollie Marie Flinton, disability claimant. Defendant-Appellee: Commissioner of Social Security.
Timeline.
- 2015: Flinton applies for disability insurance and SSI benefits.
- March 2018: ALJ Mark Solomon (improperly appointed) denies her claim.
- June 2018: SCOTUS decides Lucia v. SEC.
- 2019–2020: District court (Flinton I) vacates the 2018 denial on merits grounds and remands.
- 2021: Same ALJ Solomon—now constitutionally ratified—conducts a second hearing and partly denies benefits (finding only a closed period of disability).
- 2022: Flinton files Flinton II, raising, inter alia, an Appointments-Clause objection for the first time.
- 2023: District court (Mag. J. Jones) affirms the agency, reasoning that the second, post-ratification decision cured any earlier structural defect.
Issue on Appeal. Whether the second adjudication, led by the same ALJ, satisfied the remedial mandate of Lucia and the Appointments Clause.

3. Summary of the Judgment

The Second Circuit (Lynch, Nardini, Lee, JJ.) vacated the district court’s judgment and remanded with instructions that Flinton’s claim be reheard by a different, validly appointed ALJ. Key holdings:

The prior, pre-ratification decision by ALJ Solomon created a “continuing structural violation.”
Lucia prescribes a two-part remedy—de novo hearing and reassignment—and contains no exception for cases already remanded on the merits.
Because Flinton never received that remedy, the 2021 decision was “presumptively tainted.”
The court joins the Fourth (Brooks) and Ninth (Cody) Circuits and expressly rejects the Eleventh Circuit’s contrary reasoning in Raper.

4. Analysis

4.1 Precedents Cited and Their Influence

Lucia v. SEC, 585 U.S. 237 (2018)
Defined SEC ALJs as “inferior officers.” Crucially, mandated reassignment to a different ALJ on remand because the original adjudicator “cannot be expected to consider the matter as though he had not adjudicated it before.” The Second Circuit treats this language as categorical absent the “rule of necessity.”
Ryder v. United States, 515 U.S. 177 (1995)
Earlier SCOTUS case establishing vacatur and new hearing as default remedy for Appointments-Clause errors. Lucia relies heavily on Ryder; the Second Circuit emphasizes that continuity.
Carr v. Saul, 593 U.S. 83 (2021)
Held that disability claimants may raise Appointments-Clause objections for the first time in federal court. Although Flinton did not do so in her first suit, the Commissioner waived any forfeiture argument, enabling the Second Circuit to reach the merits.
Cody v. Kijakazi, 48 F.4th 956 (9th Cir. 2022)
Required reassignment after an Appointments-Clause violation notwithstanding post-ratification rehearing by the same ALJ. Provided persuasive reasoning—particularly the “verbatim copying” example—that the Second Circuit adopts in spirit.
Brooks v. Kijakazi, 60 F.4th 735 (4th Cir. 2023)
Held that a merits-based vacatur does not vitiate the need for the Lucia remedy. The Second Circuit relies on Brooks for the proposition that a merits and structural error can coexist and each demands its own cure.
Raper v. Comm’r of Soc. Sec., 89 F.4th 1261 (11th Cir. 2024)
Took the opposite view: no live violation after merits-based vacatur. The Second Circuit expressly “parts ways” with Raper, deepening the circuit split.
Other structural cases: Freytag, Buckley v. Valeo—cited to reinforce the separation-of-powers rationale behind strict Appointments-Clause enforcement.

4.2 Legal Reasoning of the Court

Unified “Adjudicatory Unit.” The court treats Flinton’s multi-year administrative process as a single continuum. Because the same ALJ presided at both stages, the taint spilled over.
Literal Reading of Lucia. The panel emphasizes that SCOTUS commanded both prongs—fresh hearing and new ALJ—and intentionally rejected Justice Breyer’s narrower approach.
Purpose vs. Bright-Line Rule. Even though Lucia discussed the incentives rationale in a footnote, the Second Circuit concludes that those policy justifications are descriptive, not limiting conditions; the operative mandate is textual and absolute.
Absence of the “Rule of Necessity.” Because SSA indisputably has hundreds of ALJs, there was no practical barrier to reassignment.
Equitable Consistency. Allowing more violations (appointments + merits) to yield fewer remedies would be “warped.” Hence a claimant who shows structural error always receives the structural cure, no matter what other errors surfaced.

4.3 Potential Impact

Short-Term:

Any Social Security case in the Second Circuit where the same ALJ conducted pre-ratification and post-ratification hearings is now vulnerable, even if a merits-based remand occurred in between.
The SSA will need to evaluate pending cases for compliance; reassignment logistics (especially in smaller hearing offices) may become complex.

Long-Term:

Deepened Circuit Split. With three circuits on one side (2d, 4th, 9th) and the 11th on the other, Supreme Court review may be invited to settle the remedy question.
Administrative Economy vs. Structural Purity. Agencies may push for congressional or regulatory reforms to clarify when reassignment is dispensable, but structural separation-of-powers principles now have the upper hand.
Spill-Over to Other Agencies. Although Flinton concerns the SSA, the reasoning applies to any agency in which an improperly appointed adjudicator later receives valid appointment and re-hears cases.

5. Complex Concepts Simplified

Appointments Clause (U.S. Const. art. II, § 2, cl. 2): Determines who may appoint federal “officers.” “Principal” officers require Presidential nomination and Senate confirmation; “inferior” officers may be appointed by the President, a court, or the head of a department.
Administrative Law Judge (ALJ): An agency official who conducts formal hearings, takes evidence, and issues decisions. Post-Lucia, ALJs are “inferior officers,” not mere employees.
Residual Functional Capacity (RFC): A Social Security term describing what a claimant can still do despite impairments.
De Novo Hearing: An entirely new proceeding where no deference is afforded to earlier factual or legal findings.
Rule of Necessity: In rare instances, if no substitute decision-maker exists, the same (even tainted) official may act to prevent a complete stall in adjudication.

6. Conclusion

Flinton establishes a bright-line Second-Circuit rule: once an Appointments-Clause violation infects an SSA disability claim, the claimant must receive a new, plenary hearing before a different, constitutionally appointed ALJ, regardless of any interim merits-based vacatur. The decision reinforces both separation-of-powers doctrine and claimant incentives to police structural safeguards. Practitioners before the SSA—and, by analogy, other agencies—should scrutinize past hearing assignments and be prepared to demand reassignment wherever the Lucia remedy has not been supplied. With three circuits now in agreement and one in dissent, the Supreme Court may soon be asked to pronounce the final word on the scope of the Lucia remedy.