     Case: 14-50342      Document: 00512767012         Page: 1    Date Filed: 09/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50342
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 12, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
RICHARD L. LOWE,

                                                 Plaintiff–Appellant,

versus

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-145




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*


       Although a U.S. citizen, Richard Lowe submitted an application to



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 14-50342
change his status on his Social Security card from “U.S. Citizen” to “Legal Alien
Allowed to Work.”       The Social Security Administration (“SSA”) issued an
interim decision denying his request. Because Lowe did not utilize available
administrative remedies, we affirm the district court’s dismissal for failure to
state a claim.


                                           I.
      Lowe was born in San Antonio, Texas, and is a United States citizen. In
December 2011, he submitted a Form SS-5 (Application for a Social Security
Card) to the SSA, requesting a change in his citizenship status from “U.S.
Citizen” to “Legal Alien Allowed to Work.” At some point thereafter, the SSA
issued an interim decision denying his request. That decision explains that
(1) the SSA could not approve Lowe’s request until he contacted and obtained
a ruling on his citizenship status from the United States Citizen and Immi-
gration Services (“USCIS”), and (2) at that point, Lowe could resubmit his
application.
      In spite of acknowledging receipt of the decision, Lowe did not contact
USCIS or appeal the decision. Instead, proceeding pro se, he sued the Com-
missioner of the SSA under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 702, and the Privacy Act, 5 U.S.C. § 552a. Lowe claimed that in spite of being
a “political citizen of the nation of the United States,” he remains “eligible to
elect a Form SS-5 Block 5 civil status of ‘Legal Alien Allowed to Work’ without
being a person of foreign nationality.” Accordingly, he requested the court to
order the Commissioner to update the agency’s information to reflect his
requested status of “Legal Alien Allowed to Work.” 1                In response, the



      1The suit sought declaratory relief under 28 U.S.C. § 2201–2202 and mandamus relief
under 28 U.S.C. § 1361.
                                           2
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                                       No. 14-50342
Commissioner moved to dismiss and, in the alternative, for summary judg-
ment, contending that Lowe had failed to exhaust his administrative remedies.
The district court agreed and dismissed.


                                             II.
       If a statute requires a plaintiff to exhaust administrative remedies, his
failure to do so deprives this court of subject-matter jurisdiction. 2 “[I]n the
absence of a statutory requirement of exhaustion of administrative remedies,
the jurisprudential doctrine of exhaustion controls.” Taylor, 127 F.3d at 475.
If a statute does not require exhaustion, but the jurisprudential doctrine of
exhaustion applies, unexhausted claims will fail to state a claim upon which
relief can be granted. 3


                                             III.
       Under the Privacy Act, an agency must provide a requesting party with
access to certain records. 4 The Act also requires agencies “to establish proce-
dures for reviewing a request from an individual concerning the amendment
of any record or information pertaining to the individual, for making a
determination on the request, [and] for an appeal within the agency of an


       2 See Taylor v. U.S. Treas. Dep’t, 127 F.3d 470, 475 (5th Cir. 1997) (per curiam)
(“Whenever the Congress statutorily mandates that a claimant exhaust administrative rem-
edies, the exhaustion requirement is jurisdictional because it is tantamount to a legislative
investiture of exclusive original jurisdiction in the agency.”)
       3Id. (“[I]n the absence of a statutory requirement of exhaustion of administrative
remedies, the jurisprudential doctrine of exhaustion controls.           The jurisprudential
exhaustion doctrine is not jurisdictional in nature.” (internal quotation marks and citations
omitted)).
       4  5 U.S.C. § 552a(d)(1) (“Each agency that maintains a system of records shall—upon
request by any individual to gain access to his record or to any information pertaining to him
which is contained in the system, permit him . . . to review the record and have a copy made
of all or any portion thereof in a form comprehensible to him . . . .”).
                                              3
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                                       No. 14-50342
initial adverse agency determination . . . .” 5 U.S.C. § 552a(f)(4). The SSA has
promulgated regulations, implementing the Privacy Act, which detail the pro-
cess by which an individual can (a) correct records maintained by it 5 and
(b) appeal the agency’s determination of whether a record will be corrected.
See 20 C.F.R. § 401.65. Those regulations observe that “[d]isagreements with
these determinations are to be resolved through the SSA appeal process.” Id.
       Although we have held that “[t]he Privacy Act contains no express statu-
tory requirement of exhaustion of administrative remedies,” under the juris-
prudential exhaustion doctrine, as a general matter, a litigant must still
exhaust available administrative remedies. Taylor, 127 F.3d at 476. That
doctrine “is a long settled rule of judicial administration which mandates that
no one is entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.” Id. (citations and
internal quotation marks omitted).
       Lowe does not dispute that (1) further SSA appeals were available to him
and (2) he did not pursue a ruling from the USCIS or further SSA appeals
before suing. Instead, he advances two reasons why we should entertain his
claim on the merits: (1) He claims that he never received the initial decision
from the SSA and therefore had nothing to appeal. And (2) he believes his
appeal falls within the exception to judicial exhaustion outlined in Patsy v.
Florida International University, 634 F.2d 900 (5th Cir. Jan. 1981) (en banc),
rev’d and remanded on other grounds sub nom. Patsy v. Board of Regents, 457
U.S. 496 (1982).



       5 In order to appeal a failure to correct a record, an applicant must submit a request
“to the manager identified in the notice of systems of records.” 20 C.F.R. § 401.65(a). The
applicant cannot, however, use the “correction process to alter, delete, or amend information
which is part of a determination of fact or which is evidence received in the record of a claim
in the administrative appeal process.” § 401.65(b).
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                                         No. 14-50342
       As to Lowe’s first contention, the district court found that the SSA did in
fact send him its interim decision before he sued. 6 To demonstrate error, Lowe
only points to the fact that the interim decision was not dated. That fact—
which Lowe pointed out to the district court—does not demonstrate that the
court clearly erred in its finding. Lowe’s unsupported assertion does not excuse
his failure to exhaust administrative remedies available to him.
       As to his second contention, “[w]hile courts have discretion in applying
the jurisprudential exhaustion requirement, the exercise of that discretion is
circumscribed in that a court should only excuse a claimant’s failure to exhaust
administrative remedies in extraordinary circumstances.” Taylor, 127 F.3d at
477 (citations omitted) (emphasis added). We fully agree with the district court
that Lowe “has not shown ‘extraordinary circumstances’ were present here to
excuse the SSA’s exhaustion requirements.” 7
       The judgment of dismissal is AFFIRMED.




       6“Plaintiff received an interim decision from the SSA advising him that it lacked the
agency authority to change his citizenship status and that Plaintiff would have to first con-
tact and obtain a ruling as to his citizenship status from [USCIS].”
       7   As the district court observed,
   The statutes specifically authorize the SSA to require documentary information in
   addition to the form SS-5. Beyond his assertion that he should not have to comply
   with the SSA’s procedures because the SSA would have rejected his claim anyway,
   Plaintiff presents no reason to excuse the SSA’s exhaustion requirement. Further,
   even assuming that the SSA erroneously requested additional information, he does
   not demonstrate how his dispute could not have been presented to the Commissioner
   pursuant to the SSA’s appeal process.
                                              5
