Galvez v. Bisignano -- A Rare COSS Appeal to the Ninth Circuit

On September 10, 2025, the Ninth Circuit published the opinion in Galvez v. Bisignano. The federal reporter fourth citation is pending as of the writing of this piece. 

The facts are simple. Galvez has been to the district court before. The case has been around for a very long time. The period at issue is 2008 to 2018. Eventually everyone grids out. A case that old implies or requires the inference that some of the older decisions are tainted by the appointments clause problem at issue in Carr v. Saul, 593 U.S. 83, 88–96 (2021). The Ninth Circuit extended Carr to hold that an ALJ that heard the case while not properly appointed may not hear the case on remand after being properly appointed. Cody v. Kijakazi, 48 F.4th 956 (9th Cir. 2022). In Galvez, a different ALJ incorporated at least some of the rationale stated by the prior ALJ. The district court held that incorporating the current ALJ may not use nearly identical or verbatim passages from the tainted ALJ decision. Lydia G. v. O'Malley. The district court reversed and remanded. The COSS appealed.

We win cases in the district courts. We win cases that the Office of General Counsel fought tooth and nail. Those cases don't get appealed. Why? Appealing a decision on the facts is not what Justice will allow OGC to do. OGC needs permission from the Solicitor General to file an appeal in federal court, particularly if the COSS has lost a case in a lower court. The Solicitor General's office within the Department of Justice has centralized authority over all federal government litigation and appeals. Garden variety fact-based decisions will not catch the eye of the SG. Where the district court errs on a matter of statutory interpretation on in this case on the Constitution, well we know that the SG greenlighted the appeal on this case. 

The clerk's office summary describes the holding of the case succinctly:

the new ALJ’s opinion, which incorporated part of a prior, tainted opinion, was not tainted by an Appointments Clause violation. Some similar, or even identical, text in a subsequent decision is not automatically disqualifying.

 Carr holds that an ALJ must have a proper appointment. 

Cody holds that an ALJ that heard the case without proper appointment cannot later rehear the case after proper appointment. 

Galvez holds that a properly appointed ALJ may decide the case and adopt parts of the invalid decision if "it reflects the newly assigned judge's independent view of the case." Slip op. at 4, see also 12, 19, 20. 

Galvez will get another crack at the most recent denial of benefits, this time on the merits. Galvez may still win. She has capable representation. James Tree is the counsel for the appellant in Stubbs-Danielson and Gatliff as well a ton of experience. If and when Galvez wins on the merits, the EAJA fees for fighting DOJ on appeal will become available. The prevailing private party need not prevail on every issue to get paid on every reasonable hour expended. 

Time for no quarter. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Galvez v. Bisignano -- A Rare COSS Appeal to the Ninth Circuit, California Social Security Attorney (October 24, 2025, 2025) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.