                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            NOV 15 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
PHILLIP G. BROWN,                                No.   18-35839

              Plaintiff-Appellant,               D.C. No. 2:17-cv-01470-RBL

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted October 24, 2019
                               Seattle, Washington

Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,** District Judge.

      Phillip Brown appeals the district court’s decision affirming the Social

Security Commissioner’s denial of his application for disability insurance benefits



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
and supplemental security income. The district court had jurisdiction under 42

U.S.C. § 405(g), and we have jurisdiction under 28 U.S.C. § 1291.

      We first consider Brown’s claim that the administrative law judge (ALJ) is

generally biased against persons with Brown’s characteristics, and therefore was

biased in his case. In connection with this bias claim, Brown argues that the

Commissioner’s rules and internal guidance documents preclude meaningful

consideration or judicial review of his general bias claim, and therefore his

constitutional due process right to an impartial adjudication of his eligibility for

benefits was violated. To support this argument, Brown points to the Hearings,

Appeals, and Litigation Law Manual (HALLEX) I-2-1-24, which prohibits the

consideration of “information from another claim(s) file or with another person’s

information, or . . . other information specifically about the ALJ” when

determining whether an ALJ has a pattern of bias, 2016 WL 1427087, at *2 (Apr.

11, 2016), and notes the ALJ’s ruling that HALLEX I-2-1-24 precluded him from

considering the materials submitted by Brown to establish his general bias. Brown

further argues that the ALJ’s unfavorable decision is not subject to review by the

Appeals Council, because Social Security Rule (SSR) 13-1p indicates that “an

allegation that an ALJ shows ‘general bias’ or a pattern of bias or misconduct

against a group or particular category of claimants” is an issue that is beyond the


                                           2
scope of the Appeals Council’s authority to review, and directs the Appeals

Council to refer allegations of general bias to an internal agency office that is not

subject to judicial review.1 SSR 13-1p, 2013 WL 633939, at *4 (Jan. 29, 2013).

      We disagree that the Commissioner has precluded meaningful consideration

of a general bias claim, because the government has represented in oral argument

that the Appeals Council can consider Brown’s evidence of general bias as part of

its evaluation of a claimant’s appeal of an ALJ’s ruling. The government interprets

the portion of SSR 13-1p that states that “the Appeals Council will process the

request for review” of a claim “that an ALJ shows ‘general bias’ or a pattern of

bias or misconduct against a group or particular category of claimants” to mean

that the Appeals Council can consider evidence relating to the ALJ’s conduct and

rulings in other hearings and can rule on the claim that the ALJ is generally biased

against persons with specified characteristics.2 Further, the government states that


      1
         SSR 13-1p provides that “if the Appeals Council receives an allegation
about another issue that is beyond the scope of its authority, such as an allegation
that an ALJ shows ‘general bias’ or a pattern of bias or misconduct against a group
or particular category of claimants, the Appeals Council will process the request
for review and acknowledge the allegation in the notice, order, or decision . . .
[and] will refer the allegation to the Division of Quality Service.” Id.
      2
        See Oral Argument for Brown v. Saul, United States Court of Appeals for
the Ninth Circuit (Oct. 24, 2019),
https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000016373
(relevant discussion is from 18:25–26:00).
                                           3
the relevant regulations permit a claimant to submit evidence of general bias to the

Appeals Council pursuant to 20 C.F.R. § 404.970(a)(5), which provides that the

Appeals Council will receive additional evidence “that is new, material, and relates

to the period on or before the date of the hearing decision.” Although Brown did

not appeal the ALJ’s ruling to the Appeals Council in this case, he did not forfeit

his right to such an appeal because he could reasonably conclude, based on the

language of SSR 13-1p, that such an appeal would have been futile.

      Under “[f]undamental principles of administrative law . . . a federal court

generally goes astray if it decides a question that has been delegated to an agency if

that agency has not first had a chance to address the question.” Smith v. Berryhill,

139 S. Ct. 1765, 1779 (2019). Accordingly, we remand to the district court with

instructions to remand to the Commissioner to consider Brown’s claim of general

bias and the supporting evidence in the first instance. See 42 U.S.C. § 405(g)

(sentence six). Although Brown also challenges the ALJ’s decision on the merits,

we refrain from addressing his claims pending a determination on his challenge to

the ALJ’s impartiality. Instead, we will retain jurisdiction over Brown’s appeal

and, in accordance with § 405(g), the Commissioner shall “file with the court any

such additional and modified findings of fact and decision, and, in any case in

which the Commissioner has not made a decision fully favorable to the individual,


                                          4
a transcript of the additional record and testimony upon which the Commissioner’s

action in modifying or affirming was based.”

      REMANDED with instructions.3




      3
          Each party shall bear its own costs.
                                            5
