Administrative – Social Security Disability – Acting Commissioner – Term Lengths – ALJ Appointments

As relevant to this case, the Federal Vacancies Reform Act (FVRA) allows an acting Social Security commissioner to serve (1) for a period of days or (2) while a nomination of a commissioner is pending in the Senate. The wording of 5 U.S.C. § 3346 allowed Nancy Berryhill to serve as acting commissioner twice: (1) first, under § 3346(a)(1) and § 3349a(b), for 300 days when there was a vacancy at the end of the Obama administration and (2) second, under § 3346(a)(2), when the Trump administration’s nomination for a commissioner was pending in the Senate.

We affirm the rejection of plaintiffs’ claims for social security disability benefits, made by ALJs whose appointments were ratified by Berryhill.

This appeal concerns the proper interpretation of § 3346. It reads, in relevant part, “(a) Except in the case of a vacancy caused by sickness, the 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.” Pursuant to 5 U.S.C. § 3349a(b), the 210-day period in subsection one can be extended to 300 days when the vacancy occurs at the beginning of a presidential transition.

When two statutory provisions are joined by an “or,” each provision should typically be accorded its independent and ordinary significance. The most natural interpretation of subsection (a)(2) is that it authorizes an independent period of acting service while a nomination is pending regardless of whether the nomination occurred during (or, as here, after) the subsection (a)(1) period. In line with this interpretation, (a)(2) delineates its own beginning and ending independent of (a)(1)—authorizing acting service “from the date of such nomination” until the nomination is no longer “pending in the Senate.”

Appellants’ interpretation of (a)(2) as exclusively a tolling provision subordinate to (a)(1) would deprive (a)(2) of its independent and ordinary significance and would contravene the most natural reading of the statute’s disjunctive “or.”

Moreover, the word “or” has an inclusive sense (A or B, or both) as well as an exclusive one (A or B, not both), and is generally used in the inclusive sense. When a waiter offers a patron “coffee or dessert,” an ordinary English speaker understands that he can have both coffee and dessert if he so chooses. Without compelling context to the contrary, an acting officer may serve under § 3346(a)(1), § 3346(a)(2), or both. Berryhill’s prior service under § 3346(a)(1) therefore did not preclude her from serving under § 3346(a)(2).

Affirmed.

Rush v. Kijakazi (Lawyers Weekly No. 001-048-23, 17 pp.) (Harvie Wilkinson, J.) No. 22-1797. Appealed from USDC at Statesville, Asheville and Charlotte, N.C. (Kenneth Bell & Graham Mullen, JJ.) Mahesha Subbaraman and George Piemonte for appellants; Anna Manchester Stapleton and Joshua Salzman for appellee. 4^th Cir.