Case: 21-11124 Document: 00516558434 Page: 1 Date Filed: 11/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-11124
FILED
Summary Calendar November 28, 2022
Lyle W. Cayce
Norris Lynn Fisher, Clerk
Plaintiff—Appellant,
versus
Andrew M. Saul, Commissioner of Social Security;
NFN McMamee, Account Representative; Employee;
Unknown Defendants, Security Administration,
Washington and Fort Worth,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC 4:21-CV-1178
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
In December 2009, Mr. Fisher was approved for social security
benefits, with payments set to begin in March 2010. But things did not quite
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-11124
go according to plan. Fisher was arrested in February 2010 for creating and
filing forged heirship affidavits and warranty deeds in an attempt to
fraudulently obtain real estate. He was sentenced to 20 years in federal
prison, and his benefits were suspended for the duration of his incarceration.
See 20 C.F.R. § 404.468(a). After serving a decade of his sentence, Fisher
was sent to home confinement as part of the Bureau of Prison’s COVID-19
response.
Now, Fisher wants the chance to receive benefits. He alleges that an
employee of the Social Security Administration (SSA) told him in a phone
conversation that he is still incarcerated, and therefore ineligible for benefits.
He brought this suit in April 2021, arguing that his home confinement should
not prevent him from reapplying for benefits.
On the recommendation of the magistrate judge, the district court
dismissed the case. The magistrate judge found that Fisher had failed to
comply with 28 U.S.C. § 405(g), which requires parties to obtain a final
decision from the SSA before bringing suit. It also noted that Fisher has
“wholly failed” to bring legally cognizable claims against any of the
defendants except for the Commissioner of the Social Security
Administration. The district court dismissed the case without prejudice.
On appeal, Fisher essentially raises two arguments as to why the
district court erred. First, he asserts that 28 U.S.C. § 405(g) only covers the
denial of benefits, whereas he seeks the opportunity to reapply for benefits.
Second, he claims that he was unable to exhaust his administrative remedies
because the SSA has ignored his filings.
This court agrees with the district court and the magistrate judge.
According to 28 U.S.C. § 405(h), “[n]o findings of fact or decision of the
Commissioner of Social Security shall be reviewed” outside of
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No. 21-11124
28 U.S.C. § 405(g)’s framework. Regardless of the remedy that Fisher seeks
from this court, his suit must comport with this requirement.
Moreover, he never properly filed with the SSA. Based on his own
allegations, he first spoke with an SSA employee over the phone, who told
him he was still incarcerated and thus ineligible for benefits. Then he spoke
with two Bureau of Prisons employees, who told him he was not incarcerated.
Afterward, Fisher contacted Senator John Cornyn’s office about the issue.
Then he filed suit. If Fisher wishes to obtain benefits, he must first properly
file formally with the SSA, and then obtain a final decision on his claim if his
application is denied. Because he has not even alleged that he has done so,
his suit must be dismissed.
The judgment below is AFFIRMED.
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