Kevin Stanfield v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 2023
• Docket: 21-35042
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEVIN A. STANFIELD, No. 21-35042

Plaintiff-Appellant, D.C. No. 3:20-cv-05355-DWC

v. MEMORANDUM * KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Submitted May 8, 2023** Seattle, Washington

Before: W. FLETCHER, CLIFTON, and IKUTA, Circuit Judges.

Kevin A. Stanfield appeals pro se the district court’s dismissal of his

complaint challenging the Commissioner of Social Security’s denial of his

application for disability insurance benefits under Title II of the Social Security

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Act and supplemental security income under Title XVI of the Act. 1 We have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo

whether the magistrate judge had jurisdiction over the Administrative Law Judge

(“ALJ”)’s decision. See Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012).

We also review de novo an order of dismissal for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Redlin v. United States, 921 F.3d 1133,

1138 (9th Cir. 2019). We affirm.

The magistrate judge had jurisdiction to conduct proceedings and enter a

final judgment in this action. See 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73. Pro se

litigants may consent to magistrate jurisdiction by failing to return a declination-of-

consent form “issued under the general orders and local rules of the Western

District of Washington.” See Washington v. Kijakazi, No. 22-35320, slip op. at 7

(9th Cir. July 3, 2023) (holding that a pro se plaintiff impliedly consented to

magistrate jurisdiction). Stanfield was sent and failed to return a declination-of-

consent form with language almost identical to the form in Washington.

Subsequently, the district court confirmed that the parties had consented to proceed

before a magistrate judge, and Stanfield filed merits briefing before the magistrate

judge without objection. He therefore impliedly consented to magistrate

1 Stanfield also alleged a 42 U.S.C. § 1983 claim, but the district court properly held that he did not identify a claim for deprivation of rights or due process separate from his claim for social security benefits.

2 jurisdiction because he was apprised of his “need for consent and the right to

refuse it, and still voluntarily appeared to try the case before the” magistrate judge.

Id. at 14 (quoting Roell v. Withrow, 538 U.S. 580, 590 (2003)).

The district court properly dismissed Stanfield’s complaint related to the

2012 ALJ decision as untimely. Stanfield filed his complaint approximately seven

years after the expiration date of the sixty-day limitations period. See 42 U.S.C.

§ 405(g); 20 C.F.R. § 422.210(c). He fails to argue that an extraordinary

circumstance excuses his failure to seek review of the Commissioner’s decision,

and thus is not entitled to equitable tolling. See Banta v. Sullivan, 925 F.2d 343,

345–46 (9th Cir. 1991).

The district court properly dismissed Stanfield’s remaining claims for failure

to exhaust his administrative remedies. See Bass v. Soc. Sec. Admin., 872 F.2d

832, 833 (9th Cir. 1989) (per curiam) (stating elements of exhaustion).

Stanfield is unable to identify a final decision regarding his alleged 2017 and 2018

disability applications, which renders him ineligible for judicial review. See 42

U.S.C. § 405(g).

AFFIRMED.