24-2335-cv Shackleford v. Bisignano
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 3 the City of New York, on the 18th day of November, two thousand twenty-five. 4 5 PRESENT: 6 JOHN M. WALKER, JR., 7 SUSAN L. CARNEY, 8 WILLIAM J. NARDINI, 9 Circuit Judges. 10 _____________________________________ 11 12 Dave D. Shackleford, 13 14 Plaintiff-Appellant, 15 16 v. 24-2335 17 18 Frank J. Bisignano, Commissioner of Social 19 Security, 20 21 Defendant-Appellee. * 22 23 _____________________________________ 24 25
*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the Clerk of Court is respectfully directed to amend the caption as reflected above.
1 FOR PLAINTIFF-APPELLANT: DAVE D. SHACKLEFORD, 2 pro se, Stamford, CT. 3 4 FOR DEFENDANT-APPELLEE: MOLLY E. CARTER, Special 5 Assistant U.S. Attorney, 6 Baltimore, MD (Suzanne 7 M. Haynes, Acting 8 Associate General 9 Counsel, on the brief), 10 Social Security 11 Administration, for Marc 12 H. Silverman, Acting 13 United States Attorney for 14 the District of Connecticut. 15
16 Appeal from a judgment of the United States District Court for the District of 17 Connecticut (Shea, J.).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 19 AND DECREED that the judgment of the district court is AFFIRMED. 20 Dave D. Shackleford, proceeding pro se, appeals from the district court’s judgment 21 in favor of the Commissioner of the U.S. Social Security Administration (“SSA”). 22 Shackleford commenced this action under 42 U.S.C. § 405(g), seeking judicial review of 23 an administrative law judge’s denial of his claims under both Title II and Title XVI of the 24 Social Security Act. The Commissioner moved to dismiss the complaint, or 25 alternatively, for summary judgment, arguing that Shackleford had not yet obtained a
3
1 final administrative decision subject to judicial review. Shackleford opposed the 2 motion. The district court granted summary judgment in favor of the Commissioner, 3 concluding that Shackleford failed to exhaust his administrative remedies because his 4 case remained pending with the Appeals Council, and that waiver of the exhaustion 5 requirement was not warranted. Dave S. v. O’Mally, 24-cv-718 (MPS), 2024 WL 3718344 6 (D. Conn. Aug. 7, 2024). We assume the parties’ familiarity with the underlying facts, 7 the procedural history of the case, and the issues on appeal. 1 8 “We review de novo a district court’s decision to grant summary judgment, 9 construing the evidence in the light most favorable to the party against whom summary 10 judgment was granted and drawing all reasonable inferences in that party’s favor.” Bey 11 v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021). “Summary judgment is appropriate 12 only if ‘there is no genuine dispute as to any material fact and the movant is entitled to 13 judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “[W]e liberally 14 construe pleadings and briefs submitted by pro se litigants, reading such submissions to
1 On appeal, Shackleford raises various new allegations of discrimination, including that he filed a civil rights complaint with the SSA that was dismissed. However, “[i]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”
Green v. Dep’t of Educ. of City of N.Y., 16 F.4th 1070, 1078 (2d Cir. 2021) (per curiam) (citation omitted). Shackleford also moves for reconsideration of this Court’s denial of his motion for copies of medical records and transcripts of administrative proceedings, as well as for “default judgment” and “judicial prejudice.” In light of our resolution of this appeal, we deny those motions at this juncture.
4
1 raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 2 154, 156 (2d Cir. 2017) (per curiam) (citation omitted). 3 The district court correctly granted the Commissioner’s motion for summary 4 judgment. First, the district court was correct that Shackleford failed to exhaust his 5 administrative remedies. Under 42 U.S.C. § 405(g), the federal district courts may 6 review “any final decision of the Commissioner of Social Security made after a hearing[.]” 7 “This provision . . . contains two separate elements: first, a jurisdictional requirement that 8 claims be presented to the agency, and second, a waivable requirement that the 9 administrative remedies prescribed by the Secretary be exhausted.” Smith v. Berryhill, 10 587 U.S. 471, 478 (2019) (alterations accepted, internal quotation marks and citation 11 omitted). “Modern-day claimants must generally proceed through a four-step process 12 before they can obtain review from a federal court.” Id. at 475–76. “First, the claimant 13 must seek an initial determination as to his eligibility.” Id. at 476. “Second, the 14 claimant must seek reconsideration of the initial determination.” Id. “Third, the 15 claimant must request a hearing, which is conducted by an ALJ.” Id. “Fourth, the 16 claimant must seek review of the ALJ’s decision by the Appeals Council.” Id. (citing 20 17 CFR § 416.1400). 18 Here, Shackleford presented his claims to the agency, but had yet to exhaust his
5
1 administrative remedies when he filed suit in federal court. The Commissioner 2 submitted evidence reflecting that Shackleford had filed exceptions to an ALJ’s 3 unfavorable decision with the Appeals Council, and those exceptions remained pending. 4 Shackleford did not dispute this fact, but rather acknowledged that the Appeals Council 5 had yet to issue a decision. 6 Second, the district court was correct that waiver of the administrative exhaustion 7 requirement was not warranted here. “While § 405(g) delegates to the SSA the authority 8 to dictate which steps are generally required [for administrative exhaustion], exhaustion 9 of those steps may not only be waived by the agency, but also excused by the courts.” 10 Smith, 587 U.S. at 478 (internal citations omitted). The factors governing judicial waiver 11 of an exhaustion requirement are “(1) whether the claim is collateral to a demand for 12 benefits; (2) whether exhaustion would be futile; and (3) whether the plaintiffs would 13 suffer irreparable harm if required to exhaust their administrative remedies before 14 obtaining relief.” Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir. 1992); see also Skubel v. Fuoroli, 15 113 F.3d 330, 334 (2d Cir. 1997). 16 Here, none of the three factors supported waiver. 17 Shackleford’s complaint was not “collateral” to his demand for benefits. He was 18 “challenging the lawfulness of the denial [of benefits], and not seeking relief other than
6
1 that sought in the administrative proceeding.” See Pavano v. Shalala, 95 F.3d 147, 150 (2d 2 Cir. 1996). Shackleford admits that he is seeking a review of the denial of his benefits 3 and asks the court to calculate his benefits under Titles II and XVI. The district court is 4 correct that waiver is not warranted here based on a claim for collateral relief. 5 Nor did Shackleford show that exhaustion would be futile. Exhaustion of 6 administrative remedies “may be unnecessary where it would be futile, either because 7 agency decisionmakers are biased or because the agency has already determined the 8 issue.” Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019). Shackleford argued that the 9 SSA would not render a fair and impartial decision in his case because his former counsel 10 referred to him in a filing as “Isis,” Appellant Br. 28, and because the agency was giving 11 him false and “mislead[ing]” information about the status of his case, id. at 38. However, 12 Shackleford references no statements or adverse actions by SSA employees or 13 decisionmakers that suggest bias or partiality. 14 The district court was also correct that Shackleford did not demonstrate a risk of 15 irreparable harm. This Court has reasoned that “if the delay attending exhaustion 16 would subject claimants to deteriorating health, because the Secretary has altogether 17 denied them benefits, then waiver may be appropriate.” Abbey, 978 F.2d at 46. Here, 18 Shackleford asserted that he was experiencing difficult medical issues and physical and
7
1 financial stress, but he did not allege the deterioration of health, or risk thereof, that we 2 have found in the past to constitute irreparable harm. See State of New York v. Sullivan, 3 906 F.2d 910, 918 (2d Cir. 1990) (finding “a colorable claim of irreparable harm” when 4 denial of benefits “potentially subjected claimants to deteriorating health”). In 5 summary, as the district court found, the relevant factors did not weigh sufficiently in 6 favor of excusing administrative exhaustion in this case. 7 We have considered Shackleford’s remaining arguments and find them to be 8 without merit. We note, however, that the Commissioner concedes that were 9 Shackleford to “withdraw his pending exceptions” in writing, he could then “obtain 10 judicial review of the ALJ’s decision before the district court.” Appellee Br. 11. Should 11 Mr. Shackleford maintain the exceptions, counsel for the Commissioner represented at 12 oral argument that upon the resolution of this appeal, the Appeals Council would resume 13 consideration of those exceptions. 14 Accordingly, we AFFIRM the judgment of the district court.
15 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court