Reed v. SSA
Filing
23
MEMORANDUM OPINION AND ORDER: plaintiff's motion for leave to amend 21 is DENIED, without prejudice. Court will entertain a renewed motion for leave to amend if pla is able to establish that she raised the Appointments-Clause challenge during the original administrative proceeding. Signed by Judge Danny C. Reeves on 10/18/2018. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
REGINA REED,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Civil Action No. 7: 16-241-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of Plaintiff Regina Reed’s motion for leave to
file an amended Complaint. [Record No. 21] Reed seeks to amend her Complaint to add a
claim alleging that the Administrative Law Judge and the Appeals Council were appointed in
violation of the Appointments Clause of Article II of the United States Constitution. Leave to
amend may be denied where the amendment would be futile. See Yuhasz v. Brush Wellman,
Inc., 341 F.3d 559 (6th Cir. 2003). As this Court recently explained in Blackburn v. Berryhill,
Ashland Civil Action No. 0: 17-120-DCR, these claims generally are forfeited if they are not
raised at the administrative level. Accordingly, the plaintiff’s motion for leave to amend will
be denied because there is no indication that she raised the Appointments-Clause argument
below.
The plaintiff also seeks to allege that she has been denied due process based on lack of
access to her client file, which is “sitting in the seized Conn law office in Stanville, Kentucky.”
[Record No. 21-1, p. 5] However, while this appeal remains stayed pending the United States
Court of Appeals’ decision in Hicks v. Commissioner of Social Security, No. 17-5206, the
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Court has appointed Receivers to inventory and distribute the client files of former-attorney
Eric C. Conn. [See Lexington Criminal Action No. 5: 17-043-DCR, Record No. 78.] The
Receivers will file their first written report with the Court beginning December 1, 2018, and
every three months thereafter, subject to intervening orders. The United States has no further
obligation or responsibility with respect to the handling or disposition of the files.
Accordingly, the plaintiff’s request to amend her Complaint regarding access to her client file
is futile.
Based on the foregoing, it is hereby
ORDERED that the plaintiff’s motion for leave to amend [Record No. 21] is DENIED,
without prejudice. The Court will entertain a renewed motion for leave to amend if the plaintiff
is able to establish that she raised the Appointments-Clause challenge during the original
administrative proceeding.
Dated: October 18, 2018.
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