Smith v. Commissioner, SSA

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 20, 2024
• Docket: 24-6118
• Status: Unpublished

Opinion

Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SUSAN M. SMITH,

Plaintiff - Appellant,

v. No. 24-6118 (D.C. No. 5:22-CV-00282-SLP) COMMISSIONER, SSA, (W.D. Okla.)

Defendant - Appellee,

and

ALLAN D. BERGER; CHRISTINA J. VALERIO,

Defendants. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________

Susan M. Smith appeals the district court’s June 11, 2024 docket notice

striking her motion entitled “Requesting Authorization To File Vexatious And/Or

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 2

Frivolous Claim.” She also filed additional motions on appeal, seeking various forms

of relief. We affirm the district court’s docket notice and deny the pending motions.

I. BACKGROUND

The Commissioner denied Ms. Smith’s application for disability-insurance

benefits (DIB)—a decision that Ms. Smith has continually litigated. First, in April

2019, Ms. Smith sought judicial review of the Commissioner’s determination that she

was not disabled. The district court affirmed, and Ms. Smith voluntarily dismissed

her subsequent appeal to this court. Mem. Op. & Order, Smith v. Comm’r, No. 5:19-

cv-00300-SM (W.D. Okla. Dec. 26, 2019), ECF No. 39; Mandate, Smith v. Comm’r,

No. 20-6008 (10th Cir. Jan. 29, 2020), ECF No. 6. In February 2020, Ms. Smith

again sought judicial review of the Commissioner’s decision. The district court

dismissed the action based on res judicata, adopting a magistrate judge’s report and

recommendation that Ms. Smith had not challenged. Order, Smith v. Comm’r, No.

5:20-cv-00124-SM (W.D. Okla. Sept. 1, 2020), ECF No. 20. Ms. Smith appealed, and

we affirmed, applying the firm waiver rule. Smith v. Comm’r, 846 F. App’x 737, 739

(10th Cir. 2021) (unpublished) (“Smith I”).

In the case underlying this appeal, Ms. Smith filed a complaint that sought

monetary damages under 42 U.S.C. § 1983 and again challenged the denial of DIB.

See Smith v. Comm’r, No. 22-6115, 2023 WL 2945858, at *1 (10th Cir. Apr. 14,

2023) (unpublished) (“Smith II”), cert. denied sub nom. Smith v. O’Malley, 144 S. Ct.

820 (2024). The district court dismissed Ms. Smith’s complaint sua sponte and with

prejudice under Federal Rule of Civil Procedure 12(b)(6). Id. Ms. Smith appealed,

2 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 3

and we affirmed. Id. at *3. We held that the district court correctly dismissed the

§ 1983 damages claim because Ms. Smith had not alleged state action and because

“the Social Security Act provides the exclusive remedy for the denial of social

security benefits.” Id. at *2. We further held that to the extent Ms. Smith continued to

litigate her entitlement to DIB, those claims were prevented by the doctrine of res

judicata. Id.

After we rejected her appeal, Ms. Smith filed a petition for writ of certiorari,

which the Supreme Court denied. Smith v. O’Malley, 144 S. Ct. 820 (2024).

Ms. Smith then continued to submit filings in the district court, including a Motion

for Summary Judgment. The district court denied the Motion for Summary Judgment

as “procedurally improper and otherwise wholly unsupported.” ROA at 57. The court

also explained that Ms. Smith’s repeated and “meritless filings have needlessly

caused judicial resources to be directed to her closed case and have interfered with

[the court’s] efficient administration of its cases.” Id. The court thus admonished

Ms. Smith “that any future filings based on arguments that have been rejected by [the

district court] or the Tenth Circuit Court of Appeals will be stricken and/or

summarily denied” and that “continued frivolous or vexatious motion practice or

other filings in this case may result in the imposition of monetary sanctions, filing

restrictions, or both.” Id. at 58.

Months later, Ms. Smith filed her motion “Requesting Authorization To File

Vexatious And/Or Frivolous Claim.” Id. at 5. The district court struck this motion in

a June 11, 2024 docket notice, referencing its prior warning. Ms. Smith appealed

3 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 4

from the district court’s docket notice. In addition to her opening brief, Ms. Smith

filed four motions on appeal, entitled “Motion-Right to Trial by Jury,” “Motion to

Dismiss,” “Motion for Recusal of Judge,” and “Opposition to Appellees [sic] Notice

of Withdrawal of Opening Brief.”

II. DISCUSSION

Because Ms. Smith is proceeding pro se, we construe her filings liberally.

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Nevertheless, her pro

se “status does not excuse” her obligation “to comply with the fundamental

requirements of the Federal Rules of Civil and Appellate Procedure.” Id.

We first address Ms. Smith’s challenge to the June 11, 2024 docket notice. We

then resolve the motions pending on appeal.

A. June 11, 2024 Docket Notice

Ms. Smith challenges the June 11, 2024 docket notice striking her motion

“Requesting Authorization To File Vexatious And/Or Frivolous Claim.” ROA at 5.

We conclude the district court did not abuse its discretion by striking the motion.

“The power of district courts to manage their dockets is deeply ingrained in

our jurisprudence.” United States v. Schneider, 594 F.3d 1219, 1226 (10th Cir. 2010);

see also Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (referencing “the

control necessarily vested in courts to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases”). We accordingly review the docket

notice striking Ms. Smith’s motion for abuse of discretion. In re Young, 91 F.3d

1367, 1377 (10th Cir. 1996); see also Hornsby v. Evans, 328 F. App’x 587, 588 (10th

4 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 5

Cir. 2009) (unpublished) (reviewing a district court’s order striking a motion for

abuse of discretion).1 “A district court abuses its discretion when its decision is

arbitrary, capricious or whimsical or falls outside the bounds of permissible choice in

the circumstances.” Dansie v. Union Pac. R.R. Co., 42 F.4th 1184, 1198 (10th Cir.

2022) (quotation marks omitted).

Ms. Smith contends the district court erred because her filings “were submitted

in good faith” and were not meant “to harass the defendants in any way.” Appellant’s

Br. at 1. She further contends that Defendants “are the frivolous and/or vexatious

litigants.” Id. But the record does not support Ms. Smith’s contentions. Rather, the

record demonstrates that Ms. Smith has extensively litigated the denial of DIB,

including through two unsuccessful appeals. See Smith I, 846 F. App’x at 737–38;

Smith II, 2023 WL 2945858, at *1. After her second appeal failed, Ms. Smith

continued to submit unmeritorious filings, leading the district court to warn her that

“future filings” based on already-rejected arguments would “be stricken and/or

summarily denied.” ROA at 58.

Given the history of this case, the district court acted well within its discretion

in striking Ms. Smith’s motion. See Hornsby, 328 F. App’x at 589 (holding district

court did not abuse its discretion by striking motion because plaintiff had “already

received more than [his] fair share of scarce judicial resources” (alteration in

1 We cite unpublished decisions for their persuasive value only and do not treat them as binding precedent. 10th Cir. R. 32.1(A).

5 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 6

original) (quotation marks omitted)); Kahler v. Wal-Mart Stores, Inc., No. 24-1023,

2024 WL 2151594, at *2 (10th Cir. May 14, 2024) (unpublished) (same). We thus

reject Ms. Smith’s challenge to the June 11, 2024 docket notice.

B. Motions Filed on Appeal

1. Motion-Right to Trial by Jury

In her Motion-Right to Trial by Jury, Ms. Smith challenges various rulings

made by the district court in the underlying case. We lack appellate jurisdiction to

consider these challenges.

Federal Rule of Appellate Procedure 3 states that a notice of appeal must,

among other things, “designate the judgment—or the appealable order—from which

the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). We “liberally construe the

requirements of Rule 3.” Smith v. Barry, 502 U.S. 244, 248 (1992). So even if a

litigant’s filing technically varies from Rule 3, we “may nonetheless find that the

litigant has complied with the rule if the litigant’s action is the functional equivalent

of what the rule requires.” Id. (quoting Torres v. Oakland Scavenger Co., 487 U.S.

312, 317 (1988)). But the “principle of liberal construction” does not “excuse

noncompliance with the Rule.” Id. This is because “Rule 3’s dictates are

jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.”

Id. Thus, “noncompliance” with Rule 3 “is fatal to an appeal.” Id.

In her notice of appeal, Ms. Smith designated the order on appeal as “Judge

Palk’s order on June 11-2024, [sic] denying her request for authorization to file a

vexatious AND/ or frivolous claim.” ROA at 59. She did not designate any other

6 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 7

order. Even with liberal construction, an intent to appeal from an order other than the

June 11, 2024 docket notice cannot be inferred. See Sines v. Wilner, 609 F.3d 1070,

1074–75 (10th Cir. 2010) (holding Rule 3(c) was not satisfied when the notice of

appeal designated only a different order from the challenged order). As a result, our

jurisdiction is confined to arguments challenging the June 11, 2024 docket notice.

We thus do not consider the arguments raised in Ms. Smith’s Motion-Right to Trial

by Jury.2

2. Motion to Dismiss

Ms. Smith filed a Motion to Dismiss, citing Tenth Circuit Rule 27.5(A)(9),

which authorizes the Clerk of Court to act for the court on a motion “by appellant to

dismiss an appeal.” We deny this motion because it is unclear whether Ms. Smith

actually seeks to dismiss her appeal.

Under Federal Rule of Appellate Procedure 27, “[a] motion must state with

particularity the grounds for the motion, the relief sought, and the legal argument

necessary to support it.” Fed. R. App. P. 27(a)(2)(A). Ms. Smith’s Motion to Dismiss

does not satisfy this requirement because it is unclear what relief she seeks. Although

Ms. Smith begins her motion by stating she wants “a dismissal,” she later states that

this court has jurisdiction and that she is “demanding” to exercise “her Seventh

Amendment Constitutional Right for a Trial by Jury to decide if the defendants [are]

2 Although unclear, the Motion-Right to Trial by Jury appears to raise some arguments relevant to the June 11, 2024 docket notice. But we already rejected those arguments, so we do not address them again here. See supra Section II.A.

7 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 8

liable or not.” Mot. to Dismiss at 1–2. Ms. Smith also quotes Federal Rule of

Appellate Procedure 42, which discusses voluntary dismissals, and states that the

“parties did not meet the requirements according to Rule 42(b) for this dismissal in

this case.” Id. at 1. Although it is unclear whether “this case” refers to the instant

appeal,3 Ms. Smith’s contention that Rule 42(b) has not been satisfied adds further

ambiguity.

Even with liberal construction, it is unclear what relief Ms. Smith seeks in her

Motion to Dismiss. We thus deny the motion for failure to comply with Rule

27(a)(2)(A).

3. Motion for Recusal of Judge

Next, Ms. Smith asks us to remove District Judge Scott L. Palk from her case.

Ms. Smith does not contend she raised this issue before the district court, and based

on our review of the record, we conclude this issue is raised for the first time on

appeal. See 10th Cir. R. 28.1(A) (“For each issue raised on appeal, all briefs must cite

the precise references in the record where the issue was raised and ruled on.”).

Because Ms. Smith raises this issue for the first time on appeal, she must

satisfy all elements of plain error review. Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1127–28 (10th Cir. 2011). But she has not made any attempt to argue for plain

3 The Motion to Dismiss states, “Appellant voluntarily dismissed the original case 20-6008. The parties did not meet the requirements according to Rule 42(b) for this dismissal in this case.” Mot. to Dismiss at 1. By “this case,” Ms. Smith may be referring to her first appeal, which was numbered 20-6008.

8 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 9

error review. This failure means her recusal argument is waived, and we accordingly

deny her Motion for Recusal of Judge. See United States v. Leffler, 942 F.3d 1192,

1196 (10th Cir. 2019) (“When an appellant fails to preserve an issue and also fails to

make a plain-error argument on appeal, we ordinarily deem the issue waived (rather

than merely forfeited) and decline to review the issue at all—for plain error or

otherwise.”); see also ClearOne, Inc. v. Chiang, Nos. 20-4105 & 20-4108, 2021 WL

2879015, at *5 (10th Cir. July 9, 2021) (unpublished) (declining to reach a recusal

claim because the appellant failed to raise the issue before the district court and failed

to argue for plain error review).

4. Opposition to Appellee’s Notice of Withdrawal of Opening Brief4

Ms. Smith’s final motion begins by challenging the Commissioner’s waiver of

the right to file an appellate brief, but it devolves into challenging the district court’s

order denying her Motion for Summary Judgment. She identifies the relief sought as

a jury trial.

Ms. Smith does not identify any authority permitting her to challenge the

Commissioner’s decision not to file an appellate brief. See Fed. R. App. P.

27(a)(2)(A) (requiring a motion to state the “legal argument necessary to support” the

motion). She cites only Tenth Circuit Rule 27.6(B), which discusses motions to

extend time to file a brief. And as already explained, we do not have appellate

4 Although Ms. Smith labeled this filing as an “Opposition,” we liberally construe it as a motion because it requests relief. 9 Appellate Case: 24-6118 Document: 26-1 Date Filed: 09/20/2024 Page: 10

jurisdiction to consider arguments concerning orders other than the June 11, 2024

docket notice. See supra Section II.B.1. For these reasons, we deny this motion.

III. CONCLUSION

We AFFIRM the district court’s June 11, 2024 docket notice and DENY

Ms. Smith’s motions filed on appeal. We caution Ms. Smith that additional filings in

this matter may result in sanctions.

Entered for the Court

Carolyn B. McHugh Circuit Judge