         13-1873
         Thomas v. Social Security Administration


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

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held
 2       at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3       York, on the 24th day of January, two thousand fourteen.
 4
 5       PRESENT:
 6                   Dennis Jacobs,
 7                   Denny Chin,
 8                   Christopher F. Droney,
 9                          Circuit Judges.
10       _____________________________________
11
12       Eugene Thomas,
13
14                                 Plaintiff-Appellant,
15
16                        v.                                                    13-1873
17
18       Social Security Administration,
19
20                         Defendant-Appellee.
21       _____________________________________
22
23
24       FOR PLAINTIFF -APPELLANT:                        Eugene Thomas, pro se, Brooklyn, NY.
25
26       FOR DEFENDANT -APPELLEE:                         Arthur Swerdloff (Varuni Nelson, Kathleen A.
27                                                        Mahoney, on the brief), for Loretta E. Lynch,
28                                                        United States Attorney, Eastern District of New
29                                                        York, Brooklyn, NY.

30
 1          Appeal from a judgment of the United States District Court for the Eastern District of

 2   New York (Brodie, J.).

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

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Eugene Thomas, pro se, appeals the judgment of the United States District

 6   Court for the Eastern District of New York (Brodie, J.) granting summary judgment in favor of

 7   the Commissioner of Social Security (“the Commissioner”) on Thomas’ claim under the

 8   Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a). At oral argument in the district court,

 9   Thomas additionally complained that the Social Security Administration (“SSA”) improperly

10   appointed a representative payee prior to the issuance of a court order. Construing the pro se

11   complaint liberally, see, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10 (1980), the district court

12   considered this additional claim, and dismissed it for lack of subject matter jurisdiction. We

13   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

14   the issues on appeal.

15          We review de novo a grant of summary judgment in a FOIA case. See Brennan Ctr. for

16   Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 193 (2d Cir. 2012).

17   “Summary judgment is appropriate if there is no genuine dispute as to any material fact and the

18   moving party is entitled to judgment as a matter of law.” Gonzalez v. City of Schenectady, 728

19   F.3d 149, 154 (2d Cir. 2013). When an agency presented with a FOIA request claims that it

20   cannot locate the requested documents, the agency has the burden of showing that it conducted

21   an “adequate” search – that is, a search “reasonably calculated” to produce the requested

22   documents. Weisberg v. U. S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Here, the

23   SSA was unable to locate the requested court order notwithstanding multiple searches.
                                                      2
 1   Moreover, a search of the docket and file associated with Thomas’ guardianship proceedings in

 2   the Kings County Supreme Court revealed that no court order had been entered prior to October

 3   1, 1999. Because the search was adequate, the district court properly granted summary judgment

 4   to the Commissioner.

 5          In reviewing the dismissal of a claim for lack of subject matter jurisdiction, we review

 6   factual findings for clear error and legal conclusions de novo. Liranzo v. United States, 690 F.3d

 7   78, 84 (2d Cir. 2012). The SSA may distribute benefits “for [a beneficiary’s] use and benefit to

 8   another individual or entity as the beneficiary’s representative payee.” Wash. Dep’t of Soc. &

 9   Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 376 (2003) (alteration in

10   original) (internal citations omitted). A plaintiff may seek federal judicial review of the SSA’s

11   appointment of a representative payee pursuant to 42 U.S.C. § 405(g) only after presenting the

12   claim to the SSA and exhausting all administrative remedies. See Califano v. Sanders, 430 U.S.

13   99, 101–02 (1977); Smith v. Schweiker, 709 F.2d 777, 779-80 (2d Cir. 1983); 20 C.F.R. §

14   404.981. Because Thomas submitted no evidence that he filed a claim with the SSA and

15   exhausted his administrative remedies, the district court lacked subject matter jurisdiction to

16   review the claim. Schweiker, 709 F.2d at 780.

17          We have considered all of Thomas’ arguments and find them to be without merit.

18   Accordingly, we AFFIRM the judgment of the district court.
19
20                                                 FOR THE COURT:
21                                                 Catherine O’Hagan Wolfe, Clerk
22
23




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