Fisher v. Saul

Court: Court of Appeals for the Fifth Circuit
Date filed: 2022-11-28
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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   opinion should not be published and is not precedent except under the limited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.
Case: 21-11124      Document: 00516558434            Page: 2    Date Filed: 11/28/2022




                                      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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Case: 21-11124      Document: 00516558434           Page: 3   Date Filed: 11/28/2022




                                     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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