United States District Court, E.D. Arkansas, Eastern Division
Procedure for Filing Objections
Recommended Disposition (“Recommendation”) has
been sent to Judge Brian S. Miller. A party to this suit may
file written objections with the Clerk of Court within
fourteen (14) days of filing of the Recommendation.
Objections must be specific and must include the factual or
legal basis for the objection. An objection to a factual
finding must identify the finding of fact believed to be
wrong a d describe the evidence that supports that belief.
objecting, any right to appeal questions of facts may be
jeopardized. And, if no objections are filed, Judge Miller
can adopt this Recommendation without independently reviewing
Librace filed this lawsuit to appeal the decision of the
Commissioner of the Social Security Administration denying
his claim for disability insurance benefits (DE #2, p. 2). He
filed an application for benefits under Title II on May 14,
2010 (DE #9-1, p. 2). The application was denied at the
initial and reconsideration levels. On or about January 12,
2016, Plaintiff filed an action in federal court (No.
2:16-cv-00007-PSH-DPM). The Complaint was dismissed without
prejudice on November 15, 2016, but later amended to be a
dismissal with prejudice on April 26, 2017. The Eighth
Circuit Court of Appeals affirmed the decision. Librace
v. Berryhill, 709 Fed. App'x 418 (8th Cir. 2018).
The United States Supreme Court denied certiorari. On
December 7, 2016, Librace filed a second federal action (No.
2:16-cv-00166-BD-KGB). That matter was dismissed with
prejudice on June 25, 2018.
filed this third federal action on July 8, 2019. Pending
before the Court is Defendant's Motion to Dismiss (DE
#9). Defendant contends this action should be dismissed
because there is no order that is subject to judicial review
under 42 U.S.C. § 405(g). Plaintiff did not file a
response to the motion. For the reasons that follow, the
Motion to Dismiss is GRANTED.
bases his new Complaint on new evidence submitted to the
agency regarding unreported wages while he was in the
witnesses protection program. He claims the Commissioner
stated “I was never in the witness protection program
and demanded I provide some type of proof” (DE #2, p.
3). He states he has asked for Court assistance but the Court
has failed to review this new evidence. The Commissioner
states Plaintiff has made similar claims in the past, and has
not exhausted his administrative remedies (DE #9). Further,
the Commissioner avers Plaintiff has failed to show why he
could not have presented this new evidence in any of the
prior proceedings, as he did not produce this evidence at the
administrative level or in any pleading filed with the
district court or the Eighth Circuit. Id.
federal district court's jurisdiction to review decisions
regarding disability benefits is governed by 42 U.S.C. §
405(g). Under § 405(g), the court lacks subject-matter
jurisdiction until “the claimant . . . present[s] a
claim for benefits to the Secretary and then exhaust[s] the
administrative remedies prescribed by the Secretary.”
Titus v. Sullivan, 4 F.3d 590, 592 (8th Cir. 1993)
(citation omitted). In order to establish exhaustion, §
405(g) generally requires a “final decision of the
Commissioner of Social Security made after a hearing.”
the Commissioner states Librace has not exhausted his
administrative remedies to have a valid cause of action where
a federal district court has jurisdiction to review the
matter. The record makes clear Plaintiff has not submitted
any new final decision, from an ALJ, or the Appeals Council,
for our review. More importantly, however, this Court finds
the matter precluded for the same reasons found in
Librace v. Social Security Admin., No.
2:16cv-166-BD-KGB- administrative and judicial claim
preclusion. The current matter arises from the same alleged
facts as before. A preclusion analysis generally turns on
whether the claims arise out of the “same nucleus of
operative facts.” United States v. Gurley, 43
F.3d 1188, 1195 (8th Cir. 1994) (quoting Lane v.
Peterson, 899 F.2d 737, 742 (8th Cir. 1990)). The Court
found Plaintiff did not qualify for benefits because he could
not show the requisite earnings. The Eighth Circuit affirmed
that decision, and the United States Supreme Court denied the
request for review. Librace v. Berryhill, 139 S.Ct.
338, (Oct. 9, 2018). This matter is precluded, first, because
social security regulations preclude one from seeking
benefits for an alleged disability based on the same facts
and issues the Commissioner has already found insufficient
for an award of benefits, see Hillier v. Social Security
Admin., 486 F.3d 359, 364-365 (8th Cir. 2007), and
second, because the matter has already been litigated and
decided, see In re Anderberg-Lund Printing Co., 109
F.3d 1343, 1346 (8th Cir. 1997). Librace v. Social
Security Admin., No. 2:16-cv-00166-BD-KGB.
Motion to Dismiss, DE #9, should be granted and the case
DISMISSED, with prejudice. ORDERED ...