No. 22-1601 ___________________________

Brian T. Dahle

lllllllllllllllllllllPlaintiff - Appellee

v.

Kilolo Kijakazi, Acting Commissioner of Social Security

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: December 14, 2022 Filed: March 7, 2023 ____________ Before LOKEN, MELLOY, and KOBES, Circuit Judges. ____________ MELLOY, Circuit Judge.

Brian Dahle applied for and was denied disability benefits from the Social Security Administration (“SSA”). Dahle appealed the decision to the District of Minnesota arguing in part that the Administrative Law Judge (“ALJ”) who oversaw the case lacked authority because SSA Acting Commissioner Nancy Beryhill was not properly serving as Acting Commissioner when she ratified the ALJ’s appointment. The district court agreed. Because we find Berryhill was properly serving as Acting Commissioner when she ratified the appointment, we reverse.

I.

The Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3345–3349d, permits certain individuals to serve temporarily in “principal officer” positions which normally require Presidential nomination and Senate confirmation. The FVRA allows the “first assistant” to the principal officer to serve in an acting capacity or “the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity . . . .” 5 U.S.C. § 3345(a). Section § 3346(a) places time limitations on individuals serving under § 3345:

[T]he person serving as an acting officer as described under section 3345 may serve in the office– (1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

The parties agree the Commissioner of Social Security is a principal officer who must be appointed by the President and confirmed by the Senate. Additionally, the parties agree the Deputy Commissioner acts as the first assistant to the Commissioner for purposes of the FVRA. In accordance with the FVRA, President Obama issued a memorandum order in late 2016 establishing an order of succession for the SSA. The memo specified that if the Commissioner and Deputy Commissioner positions were both vacant, the Deputy Commissioner for Operations would serve as Acting Commissioner. See Providing an Order of Succession Within the Social Security Administration, 81 Fed. Reg. 96,337 (Dec. 23, 2016).

-2- Carolyn Colvin, who had been appointed and confirmed as the Deputy Commissioner for Social Security, resigned as Acting Commissioner in January 2017. At that time the offices of Commissioner and Deputy Commissioner became vacant. Consistent with President Obama’s succession memo, Deputy Commissioner for Operations Nancy Berryhill began serving as Acting Commissioner. She served until the Government Accountability Office indicated she was in violation of the FVRA time restrictions, at which time she ceased serving as Acting Commissioner. In April 2018, President Trump submitted a nomination for SSA Commissioner to the Senate. Berryhill resumed serving as Acting Commissioner after the nomination was sent to the Senate pursuant to §