                                     NOT PRECEDENTIAL
        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 09-4149
                     _____________

               MICHAEL A. CARROLL,

                             Appellant,

                            v.

             MICHAEL J. ASTRUE,
       COMMISSIONER OF SOCIAL SECURITY
                _______________

      On Appeal from the United States District Court
               for the District of Delaware
                    (D.C. No. 08-cv-960)
          District Judge: Hon. Sue L. Robinson
                     _______________

        Submitted Under Third Circuit LAR 34.1(a)
                    October 6, 2010

Before: FUENTES, JORDAN and ALDISERT, Circuit Judges.

                 (Filed: October 21, 2010)
                     _______________

               OPINION OF THE COURT
                   _______________
JORDAN, Circuit Judge.

         Appellant Michael Carroll appeals the order of the United States District Court for

the District of Delaware granting the Commissioner’s motion to dismiss Carroll’s suit for

review of the denial of his disability benefits. For the reasons that follow, we will affirm.

I.       Background

         Carroll filed an application for disability insurance benefits on November 1, 1994.1

That application was denied on October 15, 1997, but Carroll succeeded in challenging

the denial and his case was remanded by the District Court on September 1, 1999, for

further administrative consideration. Carroll’s application was again denied on

February 14, 2001, and again remanded on December 5, 2003. Contemporaneous with

that second remand, Carroll filed a new application for both social security disability

insurance and supplemental security income.2 Pursuant to 20 C.F.R. §§ 404.952 and

416.1452, the remanded claim (the “Remanded Claim”) and the new claims (the “New

Claims”) were consolidated for administrative review, and on August 12, 2008, an

administrative law judge (“ALJ”) issued a single opinion denying both claims. The




     1
   Because the Appellate Record does not include Carroll’s applications for disability,
we take these facts from the District Court’s opinion.
     2
   While both supplemental security income (“SSI”) and social security disability
insurance (“SSDI”) provide benefits to disabled persons, under SSI, eligibility for
benefits and the amount of benefits are based on financial need, 20 C.F.R. § 416.1100,
whereas, for SSDI, eligibility and the amount of benefits are based on credits earned for
prior Social Security taxable work. 20 C.F.R. § 404.101.

                                              2
ALJ’s decision was mailed to Carroll on August 18, but, because he was transient at the

time, he did not receive it until September 11, 2008.

       Along with the ALJ’s decision, Carroll received notice of his appeal rights. He

was informed that he could file exceptions to the decision with the Appeals Council

within thirty days and that the Appeals Council could also, on its own motion, review his

claim within sixty days. If neither happened, however, the decision of the ALJ would

“become the final decision of the Commissioner after remand on the 61st day after the

date of this notice.” The notice went on to say that Carroll would then have the right,

during the next sixty days, to file an action in federal court seeking review of the ALJ

decision.

       Carroll did not file written exceptions to the decision, and the Appeals Council did

not choose to exercise review. As a result, on October 12, 2008, the ALJ’s decision

became final, and Carroll had until December 11, 2008, to bring a civil action in federal

district court.3

       On December 19, 2008, Carroll filed a civil action in the District Court. On June

10, 2009, the Commissioner filed a motion to dismiss, arguing that the action was filed

eight days late, and was, therefore, barred. The District Court agreed, and on August 13,

2009, granted the Commissioner’s motion to dismiss.



  3
   There is a discrepancy between the calculation of the sixty-day period by the parties
and by the District Court. We adopt the District Court’s calculation, but note that the
choice has no impact on the outcome of our decision.

                                             3
       On September 3, 2009, Carroll filed a motion for reargument in the District Court,

which was denied on March 12, 2010. On October 21, 2009, he filed an appeal with this

Court, which was stayed pending disposition of his motion for reargument in the District

Court. That motion having been denied, we now consider Carroll’s appeal.

II.    Discussion

       On appeal, Carroll raises two arguments. First, he says that his suit was not late

because, among other reasons, he did not receive the ALJ’s decision until September 11,

2008, thus delaying the trigger for the 60 day filing period. Second, he argues that claims

after remand follow a different appeal procedure than new claims, but that, even though

his New Claims were at issue along with his Remanded Claim, he was only offered the

appeal procedure for claims after remand. Accordingly, he argues that “he should be

allowed to [appeal the New Claims] whether or not the appeal regarding the timeliness of

the complaint is decided against him.” (Appellant’s Opening Brief at 11.) That second

argument was not raised before the District Court during its consideration of the motion

to dismiss but was raised for the first time during Carroll’s motion for reargument.

       With respect to Carroll’s first argument, because we agree with the District Court’s

analysis, we affirm without further discussion the holding that Carroll’s action was, in

fact, filed late. We therefore restrict our discussion to Carroll’s second argument – not

initially raised before the District Court – that he should still be permitted to appeal the

New Claims because he was not offered the appropriate appeals procedure.



                                               4
       As we have often explained, “[o]ur Circuit adheres to ‘a well established principle

that it is inappropriate for an appellate court to consider a contention raised on appeal that

was not initially presented to the District Court.” Lloyd v. HOVENSA, LLC, 369 F.3d

263, 272-73 (3d Cir. 2004); see also Medical Protective Co. v. Watkins, 198 F.3d 100,

105 n.3 (3d Cir. 1999); Gass v. Virgin Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir.

2002); Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994). A similar rule

applies where the argument is first raised during a motion for reargument. See Pittston

Co. Ultramar Am. Ltd. v. Alliance Ins. Co., 124 F.3d 508, 519 (3d Cir. 1997) (declining,

on appeal, to consider an argument first raised during a motion for reargument); see also

Kiewit Eastern Co., Inc. v. L & R. Const. Co. Inc., 44 F.3d 1194, 1204 (3d Cir. 1995)

(explaining that “[c]ourts often take a dim view of issues raised for the first time in post-

judgment motions” and that it is in the District Court’s sound discretion to refuse

consideration).

       Despite the general rule, we have discretion to hear an otherwise waived argument,

but we do so “only in ‘exceptional circumstances’ such as where ... ‘manifest injustice

would result from the failure to consider such issues.’” Huber v. Taylor, 469 F.3d 67, 84

(3d Cir. 2006) (quoting In re Gen. DataComm Indus., 407 F.3d 616, 624 n.13 (3d Cir.

2005)). We have previously held that “where there is a denial of due process, there is

‘manifest injustice’ as a matter of law.” United States v. Crusco, 536 F.2d 21, 26 (3d Cir.

1976). Thus, while Carroll does not frame his argument in due process terms, we



                                              5
consider briefly whether the alleged failure to allow him separate appeal procedures for

his New Claims and his Remanded Claim amounts to a due process violation.

       While it is not clear whether the Social Security Administration’s regulations

actually provide for separate appeals procedures in circumstances like Carroll’s,4 for the

sake of considering a possible due process violation, we assume that they do. We

conclude, however, that even if a separate procedure should have been applied to

Carroll’s New Claims, the Commissioner’s failure to offer that procedure is not a due

process violation because the procedure the Commissioner did offer meets the minimum

requirements for due process.

       The Supreme Court has stated that due process requires “notice and an opportunity

to be heard before the Government deprives [a person] of property.” United States v.

James Daniel Good Real Prop., 510 U.S. 43, 48 (1993). Under the procedure for

appealing remanded claims – offered to Carroll – an applicant is given thirty days to file

exceptions to an ALJ’s decision. 20 C.F.R. § 404.984(b)(1). If they do not do so, and if

the Appeals Counsel does not review the decision on its own motion, then the decision

becomes final and the applicant is given the opportunity to seek review from a federal

district court. 42 U.S.C. § 405(g). The notice sent to Carroll clearly informed him of

  4
   While Carroll correctly notes that the Social Security Administration regulations
provide separate procedures for appealing denial of a claim after remand and for
appealing denial of a new claim, compare 20 C.F.R. § 404.967, with 20 C.F.R. § 404.984,
the regulations also allow consolidation of such claims. 20 C.F.R. §§ 404.952, 416.1452.
They are silent, however, on whether the appeal of consolidated claims is likewise
consolidated and, if so, which appeal procedure it follows.

                                             6
those procedures. There can be no doubt, therefore, that Carroll was given “notice

reasonably calculated, under all the circumstances, to apprise [him] of the pendency of the

action and [to] afford [him] an opportunity to present [his] objections.” 5 Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Carroll simply failed to

exercise that right in a timely manner. We are likewise influenced by Carroll’s failure to

present any evidence or even to argue that he was unable to file exceptions within thirty

days or that, despite his failure to file exceptions within thirty days, he would have

appealed within sixty days had he known he could.

       In sum, Carroll was notified of when the decision would become final, of how to

present objections to that decision, and, even if it was technically the wrong procedure, he

has offered no rationale for concluding that he was in any way prejudiced by the error.

As a result, there has been no due process violation giving rise to manifest injustice, and

we decline to consider whether Carroll should, in fact, have been offered a separate

appeal procedure for his New Claims.

  5
    We do not mean to suggest that the two appeals procedures are substantively identical.
It appears that the procedure for new claims allows consideration of relevant evidence
outside the record, whereas the procedure for remanded claims does not. Compare 20
C.F.R. § 404.979, with 20 C.F.R. § 404.984(a). New claims can also be appealed within
sixty days, see 20 C.F.R. § 404.968(a)(1), whereas cases on remand require exceptions to
be filed within thirty days. See 20 C.F.R. § 404.984(b)(1). There are other substantive
differences, but in both procedures, the applicant has the opportunity to express
objections to the ALJ’s decision and the Appeals Council has the discretion to issue a
new decision. Compare 20 C.F.R. § 404.979, with 20 C.F.R. § 404.984(a). Likewise, in
both procedures, the Commissioner’s final decision can be appealed to the district court.
42 U.S.C. 405(g). Thus, while the procedures have some differences, both meet the
minimum requirements for due process.

                                              7
III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s decision granting the

Commissioner’s motion to dismiss.




                                             8
