                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 16-2470
                                         ___________

                                     LUZ E. GONZALEZ,
                                                 Appellant

                                               v.

                          COMMISSIONER SOCIAL SECURITY
                         ____________________________________

                       On Appeal from the United States District Court
                            for the Middle District of Pennsylvania
                            (D.C. Civil Action No. 3-15-cv-02131)
                       District Judge: Honorable William J. Nealon, Jr.
                        ____________________________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     September 1, 2016

            Before: AMBRO, GREENAWAY, JR. and GARTH ♦, Circuit Judges

                               (Opinion filed: October 26, 2016)
                                        ___________

                                          OPINION *
                                         ___________

PER CURIAM


♦
  The Honorable Leonard I. Garth joined in the opinion of the Court but passed away
prior to the filing of the opinion.
*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Luz E. Gonzalez appeals the District Court’s order granting a motion to dismiss

filed by the Commissioner of Social Security in an action involving a claim for disability

insurance benefits (DIB) and supplemental security income (SSI). For the reasons below,

we will affirm the District Court’s order.

       In 2012, Gonzalez protectively filed an application for DIB and SSI under Titles II

and XVI of the Social Security Act. Her application was denied at the initial level of

administrative review. Gonzalez appealed, and an Administrative Law Judge (ALJ)

concluded that she was not disabled. Thereafter, the Appeals Council denied Gonzalez’s

request for review. In May 2015, Gonzalez sought review in the United States District

Court for the Middle District of Pennsylvania. The District Court issued a Standing

Practice Order in Social Security Appeals, which states, in relevant part, that “[w]ithin

forty-five (45) days after service of the defendant’s answer, the plaintiff shall serve and

file a brief containing the following: statement of the case, statement of errors, argument

and conclusion.” The Order also provides that “failure of the plaintiff to comply with

[those requirements] will result in dismissal of the case for failure to prosecute and abide

by a court order . . . without any further warning from the court.” The Commissioner

filed an answer on July 7, 2015, but Gonzalez did not file a brief. Consequently, the

District Court dismissed the action by order entered October 30, 2015, because Gonzalez




constitute binding precedent.

                                              2
failed to timely file her supporting brief as required by the Standing Practice Order.

Gonzalez did not appeal.

       Gonzalez filed another action in the District Court against the Commissioner in

November 2015, again complaining about the denial of her requests for DIB and SSI.

The Commissioner filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), arguing that Gonzalez’s action was barred by res judicata. The District Court

agreed, granted the Commissioner’s 12(b)(6) motion, and dismissed the action. Gonzalez

timely appealed. 1

       Res judicata bars claims that were actually litigated or could have been litigated in

the prior action. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).

For res judicata to apply, a defendant must show that there has been “(1) a final judgment

on the merits in a prior suit involving (2) the same parties or their privies and (3) a

subsequent suit based on the same causes of action.” United States v. Athlone Indus.,

Inc., 746 F.2d 977, 983 (3d Cir. 1984). The Commissioner has demonstrated that all

three requirements are met here. First, Gonzalez’s prior action was dismissed for failure

to prosecute, which constitutes a decision “on the merits.” Napier v. Thirty or More

Unidentified Fed. Agents, 855 F.2d 1080, 1087 (3d Cir. 1988). Second, Gonzalez named

the Commissioner both here and in the prior action. Finally, the present action and the


1
 We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the District
Court’s dismissal on res judicata grounds. Morgan v. Covington Twp., 648 F.3d 172,
177 (3d Cir. 2011).

                                              3
prior suit both arise from the same denial of Gonzalez’s request for DIB and SSI.

Gonzalez has not attempted to distinguish the causes of action. Under these

circumstances, we conclude that res judicata bars Gonzalez’s claims.

      For these reasons, we will affirm the District Court’s judgment.




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