19-1426 O’Donoghue v. U.S. Social Security Administration, et al.

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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of October, two thousand twenty.

PRESENT: GUIDO CALABRESI, ROBERT A. KATZMANN, SUSAN L. CARNEY, Circuit Judges. _____________________________________

Wycliffe H. O’Donoghue,

Plaintiff-Appellant,

v. 19-1426

United States Social Security Administration, Center for Medicare & Medicaid Services, CMS, Hansen Reynolds LLC, Attorney John Shanahan,

Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT: Wycliffe H. O’Donoghue, pro se, Brooklyn, NY.

FOR DEFENDANTS-APPELLEES: Varuni Nelson, Arthur Swerdloff, Candace Scott Appleton, Assistant United States Attorneys, of Counsel, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY (for the United States Social Security Administration and Centers for Medicare and Medicaid Services, CMS).

Jonathan B. Nelson, Esq., Dorf & Nelson LLP, Rye, NY (for Hansen Reynolds LLC and John Shanahan).

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

York (Vitaliano, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Appellant Wycliffe H. O’Donoghue, pro se, sued the United States Social Security

Administration (“SSA”), the Centers for Medicare and Medicaid Services (“CMS”), the law firm

Hansen Reynolds LLC, and one of its attorneys, John Shanahan.

It is not disputed that Mr. O’Donoghue was the victim of mistaken identity: Mr.

O’Donoghue, who was born in the South American nation of Guyana, has the same name and

birthday as another person named Wycliffe O’Donoghue, who was born in the African nation of

Guinea. When the latter passed away, the SSA mistakenly recorded the death as associated with

the social security number assigned to Mr. O’Donoghue, the appellant here. Upon learning of the

mistake in 2006, Mr. O’Donoghue visited several Social Security offices but was unable to resolve

the issue. In 2015, he was involved in a car accident in Florida, which led to a lawsuit in Florida

state court. Hansen Reynolds represented the defendants in that action, and Mr. O’Donoghue

alleged that Shanahan—an attorney with the firm—argued that Mr. O’Donoghue’s case should be

dismissed because Social Security records indicated that the person with Mr. O’Donoghue’s social security number was dead. That suit ultimately settled. Mr. O’Donoghue filed this lawsuit in

Brooklyn federal court, asserting causes of action under

and Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

(1971), and alleging that

the defendants violated his constitutional rights by negligently or intentionally misidentifying him.

The district court (Vitaliano, J.) granted the defendants’ motions to dismiss, and this appeal

followed. We assume the parties’ familiarity with the underlying facts, the procedural history, and

the issues on appeal. 1

We review the grant of a Rule 12(b)(6) motion to dismiss de novo, accepting as true all

factual claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor. Fink

v. Time Warner Cable,

, 740–41 (2d Cir. 2013). The grant of a Rule 12(b)(1) motion

is reviewed de novo as to legal conclusions and for clear error as to factual findings. SM Kids, LLC

v. Google LLC,

(2d Cir. 2020).

The district court correctly held that Mr. O’Donoghue failed to state a § 1983 or Bivens

claim against Hansen Reynolds and Shanahan. “To state a claim under § 1983, a plaintiff must

allege that defendants violated plaintiff’s federal rights while acting under color of state law.”

McGugan v. Aldana-Bernier,

(2d Cir. 2014). 2 And to state a Bivens claim, a

plaintiff “must allege that he has been deprived of a constitutional right by a federal agent acting

under color of federal authority” and “must allege that the individual defendant was personally

1 The SSA now appears to have corrected the mistakes in Mr. O’Donoghue’s records, in large part due to the commendable efforts of Magistrate Judge Lois Bloom, who held a special conference to ensure that the errors were appropriately rectified and that Mr. O’Donoghue received confirmatory documentation to that effect. 2 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.

3 involved in the constitutional violation.” Thomas v. Ashcroft,

(2d Cir. 2006).

Private attorneys are generally not “state actors” for purposes of § 1983. See, e.g., Rodriguez v.

Weprin,

, 65–66 (2d Cir. 1997) (“[I]t is well-established that court-appointed attorneys

performing a lawyer’s traditional functions as counsel to defendant do not act under color of state

law and therefore are not subject to suit under

.”). The same logic precludes a

finding that private attorneys are federal agents for purposes of a Bivens claim. Mr. O’Donoghue

alleges that Hansen Reynolds and Shanahan served as defense counsel in a personal injury suit

between private parties. Those allegations do not establish that either the law firm or the attorney

was a state or federal actor for purposes of § 1983 or Bivens. 3

We also agree with the district court that Mr. O’Donoghue did not state a claim against

SSA and CMS. As federal entities, SSA and CMS cannot be liable under § 1983. See, e.g., Dotson

v. Griesa,

(2d Cir. 2005) (“[Section 1983] appl[ies] only to state actors, not

federal officials.”). They also cannot be held liable under Bivens. See FDIC v. Meyer,

, 483–86 (1994). And if Mr. O’Donoghue were to amend his complaint to name individual

federal employees (as opposed to agencies), we agree with the district court that no Bivens claim

would lie. The Supreme Court has recognized a Bivens remedy in limited circumstances, none of

which applies here, and has deemed the expansion of the Bivens remedy to new contexts a

3 We acknowledge that Hansen Reynolds and Shanahan argue, and the district court held, that Mr. O’Donoghue failed to make a prima facie showing of personal jurisdiction over them. We decline to address the issue because we find the allegations lacking on the merits. See Chevron Corp. v. Naranjo,

, 246 n.17 (2d Cir. 2012) (“[I]n cases such as this one with multiple defendants—over some of whom the court indisputably has personal jurisdiction—in which all defendants collectively challenge the legal sufficiency of the plaintiff’s cause of action, we may address first the facial challenge to the underlying cause of action and, if we dismiss the claim in its entirety, decline to address the personal jurisdictional claims made by some defendants.”).

4 “disfavored judicial activity.” Ziglar v. Abbasi,

(2017). Mr. O’Donoghue

alleges—and we accept as true—that the SSA’s error caused him great anguish and emotional

distress. Nevertheless, Mr. O’Donoghue’s complaint describes a bureaucratic error, not intentional

misconduct, and administrative negligence does not merit an expansion of the Bivens remedy.

Finally, Mr. O’Donoghue argues that the Court can review his constitutional claims

because SSA has denied his application for Social Security benefits. The Social Security Act

permits judicial review of a “final decision of the Commissioner of Social Security made after a

hearing,”

(g), and authorizes the Commissioner of Social Security to set out the

requirements for exhaustion,

(a). The administrative exhaustion process includes

(1) an initial determination of benefits; (2) reconsideration; (3) a hearing before an ALJ; and

(4) review by the Appeals Council. 20 C.F.R. Part 404, subpart J (disability); 20 C.F.R. Part 416,

subpart N (Supplemental Security Income). A claimant may next seek review in district court.

Smith v. Berryhill,

(2019). The complaint does not allege that Mr.

O’Donoghue exhausted his administrative remedies, and Mr. O’Donoghue does not argue

otherwise on appeal. And, in any event, Mr. O’Donoghue’s brief and complaint make clear that he

is not seeking review of a “final decision” regarding his disability benefits; rather, he seeks money

damages for alleged constitutional violations in connection with SSA’s mistake as to his identity.

The Social Security Act provides no avenue for review of such a claim.

We have considered Mr. O’Donoghue’s remaining arguments and find them to be without

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

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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