Librace v. Social Security Administration

Filing 14

RECOMMENDED DISPOSITION recommending that 8 Motion to Dismiss be granted and the case dismissed, with prejudice. Objections due within 14 days of the filing of the Recommendation. Signed by Magistrate Judge Jerome T. Kearney on 10/8/2019. (kdr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
DAVID LIBRACE
v.

PLAINTIFF
Case No. 2:19-cv-00078 BSM-JTK

ANDREW SAUL, Commissioner
Social Security Administration

DEFENDANT

RECOMMENDED DISPOSITION
I.

Procedure for Filing Objections
This Recommended Disposition (“Recommendation”) has been sent to Judge Brian S. Miller.

A party to this suit may file written objections with the Clerk of Court within fourteen (14) days of
filing of the Recommendation. Objections must be specific and must include the factual or legal
basis for the objection. An objection to a factual finding must identify the finding of fact believed
to be wrong a d describe the evidence that supports that belief.
By not objecting, any right to appeal questions of facts may be jeopardized. And, if no
objections are filed, Judge Miller can adopt this Recommendation without independently reviewing
the record.
II.

Introduction
David Librace filed this lawsuit to appeal the decision of the Commissioner of the Social

Security Administration denying his claim for disability insurance benefits (DE #2, p. 2). He filed
an application for benefits under Title II on May 14, 2010 (DE #9-1, p. 2). The application was
denied at the initial and reconsideration levels. On or about January 12, 2016, Plaintiff filed an
action in federal court (Case No. 2:16-cv-00007-PSH-DPM). The Complaint was dismissed without
prejudice on November 15, 2016, but later amended to be a dismissal with prejudice on April 26,

2017. The Eighth Circuit Court of Appeals affirmed the decision. Librace v. Berryhill, 709 Fed.
App’x 418 (8th Cir. 2018). The United States Supreme Court denied certiorari. On December 7,
2016, Librace filed a second federal action (Case No. 2:16-cv-00166-BD-KGB). That matter was
dismissed with prejudice on June 25, 2018.
Librace filed this third federal action on July 8, 2019. Pending before the Court is
Defendant’s Motion to Dismiss (DE #9). Defendant contends this action should be dismissed
because there is no order that is subject to judicial review under 42 U.S.C. § 405(g). Plaintiff did
not file a response to the motion. For the reasons that follow, the Motion to Dismiss is GRANTED.
III.

Discussion
Plaintiff bases his new Complaint on new evidence submitted to the agency regarding

unreported wages while he was in the witnesses protection program. He claims the Commissioner
stated “I was never in the witness protection program and demanded I provide some type of proof”
(DE #2, p. 3). He states he has asked for Court assistance but the Court has failed to review this new
evidence. The Commissioner states Plaintiff has made similar claims in the past, and has not
exhausted his administrative remedies (DE #9). Further, the Commissioner avers Plaintiff has failed
to show why he could not have presented this new evidence in any of the prior proceedings, as he
did not produce this evidence at the administrative level or in any pleading filed with the district
court or the Eighth Circuit. Id.
A federal district court’s jurisdiction to review decisions regarding disability benefits is
governed by 42 U.S.C. § 405(g). Under § 405(g), the court lacks subject-matter jurisdiction until
“the claimant . . . present[s] a claim for benefits to the Secretary and then exhaust[s] the
administrative remedies prescribed by the Secretary.” Titus v. Sullivan, 4 F.3d 590, 592 (8th Cir.

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1993) (citation omitted). In order to establish exhaustion, § 405(g) generally requires a “final
decision of the Commissioner of Social Security made after a hearing.”
Here, the Commissioner states Librace has not exhausted his administrative remedies to have
a valid cause of action where a federal district court has jurisdiction to review the matter. The
record makes clear Plaintiff has not submitted any new final decision, from an ALJ, or the Appeals
Council, for our review. More importantly, however, this Court finds the matter precluded for the
same reasons found in Librace v. Social Security Admin., Case No. 2:16cv-166-BD-KGB—
administrative and judicial claim preclusion. The current matter arises from the same alleged facts
as before. A preclusion analysis generally turns on whether the claims arise out of the “same
nucleus of operative facts.” United States v. Gurley, 43 F.3d 1188, 1195 (8th Cir. 1994) (quoting
Lane v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990)). The Court found Plaintiff did not qualify for
benefits because he could not show the requisite earnings. The Eighth Circuit affirmed that decision,
and the United States Supreme Court denied the request for review. Librace v. Berryhill, 139 S. Ct.
338, (Oct. 9, 2018). This matter is precluded, first, because social security regulations preclude one
from seeking benefits for an alleged disability based on the same facts and issues the Commissioner
has already found insufficient for an award of benefits, see Hillier v. Social Security Admin., 486
F.3d 359, 364-365 (8th Cir. 2007), and second, because the matter has already been litigated and
decided, see In re Anderberg-Lund Printing Co., 109 F.3d 1343, 1346 (8th Cir. 1997). Librace v.
Social Security Admin., Case No. 2:16-cv-00166-BD-KGB.

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IV.

Conclusion
The Motion to Dismiss, DE #9, should be granted and the case DISMISSED, with prejudice.
SO ORDERED this 8th day of October, 2019.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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