13-1873

Thomas v. Social Security Administration

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, held

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 24th 3 day of January, two thousand fourteen.

4

5 PRESENT:

6 Dennis Jacobs,

7 Denny Chin,

8 Christopher F. Droney,

9 Circuit Judges.

10 _____________________________________

11

12 Eugene Thomas,

13

14 Plaintiff-Appellant,

15

16 v. 13-1873

17

18 Social Security Administration,

19

20 Defendant-Appellee.

21 _____________________________________

22

23

24 FOR PLAINTIFF -APPELLANT: Eugene Thomas, pro se, Brooklyn, NY.

25

26 FOR DEFENDANT -APPELLEE: Arthur Swerdloff (Varuni Nelson, Kathleen A.

27 Mahoney, on the brief), for Loretta E. Lynch,

28 United States Attorney, Eastern District of New

29 York, Brooklyn, NY.

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1 Appeal from a judgment of the United States District Court for the Eastern District of

2 New York (Brodie, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is AFFIRMED. 

5 Appellant Eugene Thomas, pro se, appeals the judgment of the United States District

6 Court for the Eastern District of New York (Brodie, J.) granting summary judgment in favor of

7 the Commissioner of Social Security (“the Commissioner”) on Thomas’ claim under the

8 Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a). At oral argument in the district court,

9 Thomas additionally complained that the Social Security Administration (“SSA”) improperly

10 appointed a representative payee prior to the issuance of a court order. Construing the pro se

11 complaint liberally, see, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10 (1980), the district court

12 considered this additional claim, and dismissed it for lack of subject matter jurisdiction. We

13 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

14 the issues on appeal.

15 We review de novo a grant of summary judgment in a FOIA case. See Brennan Ctr. for

16 Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 193 (2d Cir. 2012).

17 “Summary judgment is appropriate if there is no genuine dispute as to any material fact and the

18 moving party is entitled to judgment as a matter of law.” Gonzalez v. City of Schenectady, 728

19 F.3d 149, 154 (2d Cir. 2013). When an agency presented with a FOIA request claims that it

20 cannot locate the requested documents, the agency has the burden of showing that it conducted

21 an “adequate” search – that is, a search “reasonably calculated” to produce the requested

22 documents. Weisberg v. U. S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Here, the

23 SSA was unable to locate the requested court order notwithstanding multiple searches. 

2
1 Moreover, a search of the docket and file associated with Thomas’ guardianship proceedings in

2 the Kings County Supreme Court revealed that no court order had been entered prior to October

3 1, 1999. Because the search was adequate, the district court properly granted summary judgment

4 to the Commissioner.

5 In reviewing the dismissal of a claim for lack of subject matter jurisdiction, we review

6 factual findings for clear error and legal conclusions de novo. Liranzo v. United States, 690 F.3d

7 78, 84 (2d Cir. 2012). The SSA may distribute benefits “for [a beneficiary’s] use and benefit to

8 another individual or entity as the beneficiary’s representative payee.” Wash. Dep’t of Soc. &

9 Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 376 (2003) (alteration in

10 original) (internal citations omitted). A plaintiff may seek federal judicial review of the SSA’s

11 appointment of a representative payee pursuant to 42 U.S.C. § 405(g) only after presenting the

12 claim to the SSA and exhausting all administrative remedies. See Califano v. Sanders, 430 U.S.

13 99, 101–02 (1977); Smith v. Schweiker, 709 F.2d 777, 779-80 (2d Cir. 1983); 20 C.F.R. §

14 404.981. Because Thomas submitted no evidence that he filed a claim with the SSA and

15 exhausted his administrative remedies, the district court lacked subject matter jurisdiction to

16 review the claim. Schweiker, 709 F.2d at 780. 

17 We have considered all of Thomas’ arguments and find them to be without merit. 

18 Accordingly, we AFFIRM the judgment of the district court.

19

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

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