Phuong Doan v. Michael Astrue , 464 F. App'x 643 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 30 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PHUONG DOAN; JOSE HERNANDEZ, No. 10-55621
Plaintiffs - Appellants, D.C. No. 3:04-cv-02039-DMS-
RBB
v.
MICHAEL J. ASTRUE, Commissioner, MEMORANDUM *
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted December 8, 2011 **
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
Ethel Gutierrez, Sandor Hejja, Karen Kraintz, Vien Mai, Shelby Mittner and
Hoa Nguyen (“Appellants” or “class members”) appeal the district court’s denial
of their motion for summary judgment and its grant of the Commissioner of Social
Security’s (“Commissioner”) motions for summary judgment. In granting the
Commissioner’s motions for summary judgment, the district court found that
Hejja, Kraintz, Mai, Mittner and Nguyen had not produced sufficient evidence to
establish grounds for equitable tolling or waiver of the administrative exhaustion
requirement under 42 U.S.C. § 405(g), and that the Administrative Law Judge
(ALJ) at issue was not biased.
First, we affirm the district court’s determination that Appellants Hejja,
Kraintz, Mai, Mittner and Nguyen are not entitled to equitable tolling or waiver of
the administrative exhaustion requirement under § 405(g) and that the district court
lacked authority to decide their claims. Second, we reverse the summary judgment
ruling addressing the merits of Appellants’ bias claims and remand to the district
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court with instructions to vacate Part IV.B of its March 19, 2010 order because
Gutierrez’s claim is moot.1
I. Authority for Judicial Review under 42 U.S.C. § 405(g)
Section 405(g) of the Social Security Act provides the exclusive means to
obtain review of a decision to deny benefits. An applicant for benefits who feels
that an ALJ was biased against her must first present any claim of bias to the agency
itself, and must file an action with the federal district court within 60 days of the
Commissioner’s final decision. 42 U.S.C. § 405(g); see also Hoye v. Sullivan, 985
F.2d 990, 992 (9th Cir. 1993) (per curiam). Neither procedural bar is jurisdictional,
but if neither requirement is met and the applicant fails to demonstrate that both a
waiver of the exhaustion requirement and equitable tolling of the statute of
limitations are warranted, then the court is barred from hearing her claims. See
Johnson v. Shalala, 2 F.3d 918, 921-24 (9th Cir. 1993).
II. Equitable Tolling and Waiver of Administrative Exhaustion Requirement
All class members but one failed to file their appeals to the district court
1
For the first time on appeal, Appellants assert that District Judge Dana
Sabraw should have recused himself sua sponte from hearing their case because of
his alleged bias. “Absent exceptional circumstances, [the Ninth Circuit] will not
consider arguments raised for the first time on appeal.” Alohacare v. Hawaii Dep’t
Human Servs., 572 F.3d 740, 744 (9th Cir. 2009). No such circumstances exist
here. Appellants have therefore waived any challenge regarding Judge Sabraw’s
alleged bias.
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within 60 days of the Commissioner’s final decision in their cases, and no class
member complained to the agency of ALJ bias before bringing the claim to the
district court. The district court found that these Appellants had not presented
sufficient evidence to warrant either equitable tolling of § 405(g)’s 60-day statute of
limitations or a waiver of § 405(g)’s administrative exhaustion requirement. The
district court therefore was barred from hearing those claims.
Appellants’ opening brief does not dispute in a specific, distinct or coherent
manner the district court’s conclusion that the vast majority of their claims are time-
barred and precluded because of their failure to exhaust administrative remedies.
This court “will not ordinarily consider matters on appeal that are not specifically
and distinctly argued in appellant’s opening brief.” Miller v. Fairchild Indus., Inc.,
797 F.2d 727, 738 (9th Cir. 1986). Furthermore, arguments “not coherently
developed” in appellate briefs are waived on appeal. United States v. Kimble, 107
F.3d 712, 715 n.2 (9th Cir. 1997). With the exception of Gutierrez, Appellants have
therefore waived on appeal the issue of whether they are entitled to equitable tolling
or a waiver of administrative exhaustion requirements to pursue their bias claims,
and we are barred from hearing their claims on the merits.
III. Ethel Gutierrez’s Claim Is Moot
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The one class member whose claim was not time-barred was Ethel Gutierrez.
The district court proceeded to examine the merits of Appellants’ bias claims on
that basis. Gutierrez’s claim was, however, moot, thus depriving the district court
of jurisdiction over the merits of this case.
“To qualify as a case fit for federal-court adjudication, an actual controversy
must be extant at all stages of review, not merely at the time the complaint is filed.”
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal
quotation marks and citation omitted). If the “actual controversy” ceases to exist at
any point in the litigation, the case is moot and a federal court no longer has
jurisdiction over it. Because Gutierrez was awarded disability benefits in 2006,
dating back to the disability onset date that she had claimed in her original
application for benefits, her instant claim for benefits is moot. What Gutierrez
seeks here has already been granted. We lack jurisdiction over her claim and,
therefore, over the merits of this case.
IV. Conclusion
Because every Appellant but one was barred on procedural grounds from
pursuing their claims in federal court, and the one remaining Appellant’s claim was
moot, the district court lacked authority and jurisdiction to reach the merits of
Appellants’ bias claims.
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Therefore, (1) the summary judgment granted to the Commissioner as to the
claims of Hejja, Kraintz, Mai, Mittner and Nguyen is AFFIRMED; (2) the
summary judgment granted to the Commissioner as to Gutierrez’s claim is
REVERSED and the cause is REMANDED to the district court with instructions
to vacate Part IV.B of its March 19, 2010 order because Gutierrez’s claim is moot.
6