United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 23, 2018*

Decided February 8, 2019

Before

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 17‐3186

ANDREW SLABON,

Plaintiff‐Appellant,

v.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant‐Appellee.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 16‐CV‐10605

Sharon Johnson Coleman,

Judge.

O R D E R

Andrew Slabon argues that the Social Security Administration violated his right

to due process when it suspended and then terminated his Supplemental Security

Income while he was incarcerated. The district court granted summary judgment for the

agency on this claim. Because Slabon cannot prevail under any of the remedies

provided in the Social Security Act, we affirm the judgment of the district court.

                                                 

* We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. Fed. R. App. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 17‐3186    Page 2

Slabon applied in 2009 for SSI benefits, which are available to disabled

individuals with limited income and assets. See 42 U.S.C. § 1381; 20 C.F.R. § 416.110.

The agency approved the application a year later.  

Slabon was arrested in January 2014 and later convicted at trial of aggravated

battery. One month after Slabon’s arrest, the agency learned that he was in jail and

suspended his SSI benefits under 42 U.S.C. § 402(x) (“no monthly benefits shall be

paid ... to any individual ... while such individual ... is confined in a jail”) and

20 C.F.R. § 416.1325. Although the agency’s usual practice is to send notice of

suspension to a recipient at the place of incarceration, it sent Slabon’s notice to his home

address. Because he was incarcerated, Slabon did not receive this letter. He remained

incarcerated pending trial, and in February 2015, the agency terminated his benefits

because they had been suspended for twelve consecutive months. 42 U.S.C. § 1383(j);

20 C.F.R. § 416.1335.   

Slabon sued the acting commissioner for constitutional violations, mistakenly

invoking 42 U.S.C. § 1983, which applies to persons acting under color of state law, not

federal law. He alleged that he was deprived of property without due process of law

when the agency sent the notice of suspension to his home address rather than the jail,

thereby depriving him of the opportunity to challenge the suspension and eventual

termination of his benefits. If he had received the notice, he says, he could have avoided

this termination by accepting a plea agreement that would have assured his immediate

release. He also asserted an equal protection claim based on the manner in which

§ 402(x) singles out incarcerated persons. Finally, he alleged that the agency

intentionally caused him emotional distress by terminating benefits that he needed to

pay the property taxes on his late mother’s home.  

The district court initially dismissed Slabon’s claims for denial of equal

protection and intentional infliction of emotional distress and later granted summary

judgment on the remaining due‐process claim. In the court’s view, any error on the

agency’s part in sending the notice to the wrong address was harmless because Slabon

had no right to benefits while he was in custody. The agency was required to suspend

his benefits so long as he was incarcerated for more than one month. 20 C.F.R. § 1325(b).  

On appeal Slabon argues that the agency violated his right to due process by

failing to provide him adequate notice that the agency (1) had suspended his benefits

and (2) would terminate his benefits if they were suspended for more than twelve

months.  

As an initial matter, the only basis under which Slabon may bring this suit is

42 U.S.C. § 405(g). Although he styles his suit as arising under 42 U.S.C. § 1983 and
No. 17‐3186    Page 3

brought against the acting commissioner in her official capacity, he may not bring a

§ 1983 action against federal officials who are acting under federal law. District of

Columbia v. Carter, 409 U.S. 418, 424–25 (1973); Case v. Milewski, 327 F.3d 564, 567 (7th

Cir. 2003). Nor may Slabon bring an action for damages against the acting

commissioner or any other Social Security official under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), because Congress has already

provided a comprehensive scheme under the Social Security Act to appeal the

revocation of benefits. See Schweiker v. Chilicky, 487 U.S. 412, 414, 424, 426 (1988).

Faced with a nearly identical set of facts, the Ninth Circuit recharacterized a pro

se plaintiff’s Bivens claim as one under 42 U.S.C. § 405(g). See Butler v. Apfel, 144 F.3d

622, 624 (9th Cir. 1998). Although we construe a pro se plaintiff’s pleadings liberally, see

Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017), recharacterizing

Slabon’s suit as one under § 405(g) would not help him. Although § 405(g) permits

judicial review of agency decisions, the Social Security Act does not authorize claims for

money damages against officials even if their unconstitutional conduct leads to the

wrongful denial of benefits. Chilicky, 487 U.S. at 242. Further, Slabon’s incarceration

between January 2014 and February 2016 disqualified him from receiving benefits for

that period. See 42 U.S.C. § 402(x); 20 C.F.R. § 416.1325. That means that whether Slabon

received the notice or not, he would not be entitled to benefits beyond those he already

has received. See Schweiker v. Wilson, 450 U.S. 221, 224 (1981); Codd v. Velger, 429 U.S.

624, 628 (1977) (due process did not require a hearing if plaintiff could not show “that

he was harmed by the denial of a hearing”). And his attempt to blame the lack of notice

for his decision not to plead guilty, which in turn resulted in incarceration for more

than one year and to the termination of his SSI benefits, stretches the legal concepts of

duty and causation beyond recognition.

Slabon’s other claims were also rightly dismissed. First, the suspension of his

benefits while he was incarcerated did not violate his right to equal protection.

See Milner v. Apfel, 148 F.3d 812, 813–15 (7th Cir. 1998). To the extent that he challenges

the constitutionality of the provisions that require termination of suspended benefits

after twelve months, 42 U.S.C. § 1383(j); 20 C.F.R. § 416.1335, a rational basis exists for

Congress to justify this policy—namely, maintaining administrative efficiency.

See Califano v. Jobst, 434 U.S. 47, 53 (1977), citing Weinberger v. Salfi, 422 U.S. 749, 770

(1975). Requiring termination of benefits that have been suspended for more than

twelve months simplifies recordkeeping and reduces administration costs. See United

States v. Carroll, 110 F.3d 457, 462 (7th Cir. 1997); see also Estate of Landers v. Leavitt,

545 F.3d 98, 112 (2d Cir. 2008), as revised (Jan. 15, 2009).  
No. 17‐3186    Page 4

The district court also properly dismissed Slabon’s claim for intentional infliction

of emotional distress. Plaintiffs must exhaust their administrative remedies before they

may file suit against the United States under the Federal Torts Claims Act. See 28 U.S.C.

§ 2675; see also 28 C.F.R. § 14.2; 20 C.F.R. §§ 429.101–110; Smoke Shop, LLC v. United

States, 761 F.3d 779, 786 (7th Cir. 2014), and Slabon acknowledges in his appellate brief

that he did not engage in any administrative process for this claim.

The judgment of the district court is therefore

AFFIRMED.