PS1-063                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3767
                                       ___________

                                  DAVID B. CASSELL,
                                              Appellant

                                             v.

        THE SOCIAL SECURITY ADM., RELOCATED TO 40TH/MARKET,
                           15 MARKET STREET
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:16-cv-04851)
                      District Judge: Honorable Mark A. Kearney
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 9, 2017

              Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

                           (Opinion filed: February 13, 2017 )
                                      ___________

                                        OPINION*
                                       ___________
PER CURIAM

       Appellant David Cassell appeals from an order of the District Court dismissing his

complaint. For the following reasons, we will affirm.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       On September 9, 2016, Cassell sought to file a complaint in forma pauperis,

alleging injuries incurred from the denial of Social Security benefits and seeking $30

million in damages. Cassell alleged that the Social Security Administration (“SSA”)

misdiagnosed him as mentally retarded, subsequently discontinued his benefits, violated

his human rights, and tortured him. The District Court granted Cassell in forma pauperis

status but dismissed the complaint pursuant to 28 U.S.C. § 1915(e). It concluded that his

claims were barred by sovereign immunity. Cassell now appeals.1

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223 (3d

Cir. 2000).

       We agree with the District Court that the United States enjoys sovereign immunity

and may not be sued without its consent. See United States v. Mitchell, 463 U.S. 206,

212 (1983). To the extent that Cassell sought to bring an action pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), such an

action cannot be maintained against a federal agency. See F.D.I.C. v. Meyer, 510 U.S.

471, 486 (1994). Additionally, the District Court correctly determined that, to the extent

the complaint sought damages under the Federal Tort Claims Act (“FTCA”) for injuries

sustained as a result of the SSA’s decision, the agency was not subject to suit under the

FTCA. See 42 U.S.C. § 405(h) (providing that 42 U.S.C. § 405(g) is the only remedy for


1
  Cassell also filed a motion to compel Appellee, who is not participating in the appeal, to
respond.
                                            2
a party seeking review of a decision under the Medicare Act denying a monetary benefit);

see also Shalala v. Ill. Council on Long Term Health Care, Inc., 529 U.S. 1, 10 (2000).

       The District Court also reasonably concluded that Cassell did not seek judicial

review under 42 U.S.C. § 405(g). The District Court instead construed Cassell’s

complaint as seeking damages under the FTCA for injuries sustained as a result of the

SSA’s misdiagnosis. Although pro se complaints like Cassell’s must be liberally

construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), there was no language in

Cassell’s complaint suggesting any recent denial of benefits. To the contrary, Cassell

complained of injuries resulting from the SSA’s initial misdiagnosis of him as

intellectually disabled and its subsequent discontinuation of benefits—events that we

know (from Cassell’s prior litigation and pleadings, see Complaint, Cassell v. City of

Phila., No. 08-5460 (E.D. Pa. Nov. 26, 2008), ECF No. 3) occurred prior to 2009.

Cassell’s new complaint did not cite Section 405, refer to any agency action beyond the

long-ago misdiagnosis and discontinuation of benefits, or even imply that the SSA had

taken any new action—let alone issued a reviewable decision within the 60 days prior to

the filing of his complaint in September 2016. See 42 U.S.C. § 405(g) (providing the

time limit for seeking judicial review of SSA decisions). Moreover, in his appellate brief,

Cassell neither argues that the District Court erred in its construction of his complaint, or

hints at any error in some new denial of benefits. See United States v. Pelullo, 399 F.3d

197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue

an issue in his opening brief constitutes waiver of that issue on appeal.”). Instead,
                                              3
Cassell’s appellate brief suggests only continued dissatisfaction with the outcome of his

prior litigation. He may not re-litigate his prior complaint, however. See Duhaney v.

Attorney Gen. of U.S., 621 F.3d 340, 347 (3d Cir. 2010) (“Res judicata … bars a party

from initiating a second suit against the same adversary based on the same ‘cause of

action’ as the first suit.”).

       For the foregoing reasons, we will affirm the judgment of the District Court.

Cassell’s motion to compel Appellee to respond is denied.




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