Ricardo Calderon-Lopez v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2018
• Docket: 16-17353
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 28 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO J. CALDERON-LOPEZ, AKA Nos. 16-17353 Ricardo Jose Calderon Lopez, 17-15240

Plaintiff-Appellant, D.C. No. 3:16-cv-02732-LB v.

NANCY A. BERRYHILL, Acting MEMORANDUM* Commissioner Social Security,

Defendant-Appellee.

RICARDO J. CALDERON-LOPEZ, No. 17-16152

Plaintiff-Appellant, D.C. No. 3:16-cv-07236-LB

v.

TIGRAN GUMUSHYAN; et al.,

Defendants-Appellees.

Appeals from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). Submitted December 27, 2018***

Before: PAEZ, BERZON, and R. NELSON, Circuit Judges.

Ricardo J. Calderon-Lopez, a.k.a. Ricardo Jose Calderon Lopez, appeals pro

se from the district court’s judgments, in two consolidated cases and a related case,

dismissing for lack of subject matter jurisdiction his challenge to the

Commissioner of Social Security’s termination of his disability insurance benefits

and his torts-based and constitutional claims against individual employees of the

Social Security Administration (“SSA”). We affirm.

The district court properly dismissed for lack of subject matter jurisdiction

Calderon-Lopez’s consolidated action challenging the Commissioner of Social

Security’s termination of Calderon-Lopez’s disability insurance benefits.

Calderon-Lopez failed to attend his hearing before the Administrative Law Judge

(“ALJ”) and thus failed to exhaust his administrative remedies. See Klemm v.

Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (explaining the Social Security Act

only grants the court jurisdiction to review final decisions of the Commissioner);

Subia v. Comm’r of Soc. Sec., 264 F.3d 899, 901-02 (9th Cir. 2001) (holding the

claimant failed to exhaust administrative remedies by refusing to attend the ALJ

hearing). We reject what we understand to be Calderon-Lopez’s contentions that

*** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 exhaustion of remedies was futile because of the ALJ’s alleged bias. However, our

decision today does not limit Calderon-Lopez’s opportunity to reapply for

disability benefits or to petition the agency for reopening, see, e.g., Commissioner

of Social Security's Hearings, Appeals, and Litigation Manual (HALLEX) I-2-9-40

(2017), https://www.ssa.gov/OP_Home/hallex/I-02/I-2-9-40.html.

That district court did not abuse its discretion in issuing various scheduling

orders. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807 (9th Cir. 2002) (setting

forth standard of review).

In Calderon-Lopez’s separate action against individual SSA employees, the

district court also properly dismissed for lack of subject matter jurisdiction. Again,

the Social Security Act only grants federal courts jurisdiction to review final

decisions of the Commissioner. Klemm, 543 F.3d at 1144 (citing 42 U.S.C. §

405(g)). Moreover, the Federal Tort Claims Act does not grant jurisdiction as to

individual defendants in cases arising under the Social Security Act. Hooker v.

U.S. Dep’t of Health & Human Servs., 858 F.2d 525, 529-30 (9th Cir. 1988) (citing

42 U.S.C. § 405(h)).

The district court properly denied Calderon-Lopez’s request to withdraw his

consent to proceed before a magistrate judge. A party may only withdraw such

consent for good cause or extraordinary circumstances. See Dixon v. Ylst, 990 F.2d

478, 479-80 (9th Cir. 1993). Contrary to Calderon-Lopez’s implication, the appeal

3 of a related case constitutes neither good cause nor an extraordinary circumstance.

Calderon-Lopez asserts that, as a result of the consolidation of his two other

cases, the district court had no jurisdiction over his suit against individual SSA

employees at the time that it granted the Commissioner’s motion to dismiss. There

is no legal basis for this argument. A district court retains jurisdiction over an

action until it issues a final decision. Nat’l Distrib. Agency v. Nationwide Mut. Ins.

Co., 117 F.3d 432, 433 (9th Cir. 1997).

The district court did not abuse its discretion when it denied Calderon-

Lopez’s motion for leave to file a motion for reconsideration. Calderon-Lopez did

not present an argument for reconsideration in accordance with the Northern

District of California’s Civil Local Rules, Civil L.R. 7-9(c).

Calderon-Lopez filed a number of motions regarding the consolidated cases,

case nos. 16-17353 and 17-15240. His “Motion for leave to File an Amended

Complaint,” Dkt. No. 34, “Motion for Summary Judgment,” Dkt. No. 47, request

for judicial notice, Dkt. No. 40, motion to vacate an unrelated state court order,

Dkt. No. 58, and motion to consider whether another case filed by Calderon-Lopez

should be related to this one, Dkt. No. 59, are denied. Calderon-Lopez’s “Motion

of Opposition to Adm. Orders [49, 50]; Petitioning Waiver of Oral Argument-

Expediting Reinstatement of Benefits,” Dkt. No. 52, is denied in part and granted

in part. We grant Calderon-Lopez’s motion to submit the case on the briefs, but

4 otherwise deny the motion. Pending motions identified or construed as motions to

expedite, Dkt. Nos. 35, 37, 38, 39, and 45, are granted.

Calderon-Lopez has also filed two pending motions in the related case, case

no. 17-16152. His motion for sanctions, Dkt. No. 20, is denied. We construe

Calderon-Lopez’s filing identified as “Informative Motion,” Dkt No. 26, as a letter

pursuant to Federal Rule of Appellate Procedure 28(j), which requires no response

from this court.

AFFIRMED.