Davison v. Bisignano: § 405(g) Exhaustion Must Be Pleaded in the Complaint; Objections and Inadequate Appellate Briefing Cannot Cure Jurisdictional Defects

Introduction

In Davison v. Bisignano (10th Cir. Sept. 17, 2026), Daniel Joseph Davison, proceeding pro se, appealed the District of Colorado’s dismissal of his amended complaint against the Social Security Administration (SSA), the Commissioner, and the United States. Mr. Davison alleged he was seriously injured in 2006 and claimed he was entitled to substantial retroactive Social Security Disability Insurance benefits for a “Childhood Disability” dating back to 2006, alleging the SSA owed him $165,796 in retroactive pay.

He attempted to proceed in federal district court by invoking diversity jurisdiction under 28 U.S.C. § 1332 and asserted claims styled as Federal Tort Claims Act claims and a breach of contract claim. The central jurisdictional question was whether the district court could hear the dispute outside the Social Security Act’s judicial review provision, 42 U.S.C. § 405(g), and whether Mr. Davison properly alleged (and later adequately briefed on appeal) the facts necessary to invoke that limited jurisdiction.

Summary of the Opinion

The Tenth Circuit affirmed the dismissal without prejudice for lack of subject matter jurisdiction. The court agreed that:

• Diversity jurisdiction was unavailable because the United States is not a citizen for diversity purposes and federal agencies/administrators cannot be sued in diversity.
• Federal question jurisdiction under 28 U.S.C. § 1331 was unavailable because § 405(g) is the exclusive route for judicial review of claims arising under the Social Security Act, and Mr. Davison’s amended complaint did not allege administrative exhaustion necessary to invoke § 405(g).
• Assertions in objections to the magistrate judge’s recommendation that he completed the administrative process could not substitute for allegations missing from the operative amended complaint.
• On appeal, Mr. Davison’s briefing did not meaningfully engage the district court’s jurisdictional reasoning; inadequately developed arguments were treated as waived.

Analysis

Precedents Cited

1. James v. Wadas, 724 F.3d 1312 (10th Cir. 2013)

The panel cited James v. Wadas for the familiar rule that courts liberally construe pro se filings but do not serve as the litigant’s advocate. This principle framed the opinion’s approach: Mr. Davison received liberal construction, but the court still required him to satisfy jurisdictional pleading requirements and appellate briefing rules.

2. Smith v. Berryhill, 587 U.S. 471 (2019)

The court relied on Smith v. Berryhill to describe the “modern-day” four-step administrative process generally required before judicial review: (1) initial determination, (2) reconsideration, (3) ALJ hearing, (4) Appeals Council review. The case supplied the doctrinal content of “administrative exhaustion” in Social Security litigation and underscored why a complaint must plausibly allege completion of these steps (or some legally recognized basis to excuse them) to invoke § 405(g).

3. Heckler v. Ringer, 466 U.S. 602 (1984)

The magistrate judge (and district court) invoked Heckler v. Ringer for the key jurisdictional proposition that § 405(g), to the exclusion of 28 U.S.C. § 1331, is the sole avenue for judicial review for all claims arising under the Social Security Act. This precedent is the backbone of the decision: even if a plaintiff labels claims as tort or contract theories, the court looks to substance—if the claim is in essence about entitlement to benefits or the agency’s benefits decision, the Social Security Act channels review through § 405(g).

4. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005)

The panel cited Garrett v. Selby Connor Maddux & Janer for two related points: (1) pro se litigants must follow the same procedural rules as other litigants, and (2) appellate briefs must do more than assert generalized error; they must provide developed argument with supporting authority. This authority directly supported the holding that Mr. Davison’s appellate presentation was inadequate to secure review of the district court’s dismissal.

5. United States v. Pinson, 584 F.3d 972 (10th Cir. 2009)

United States v. Pinson reinforced the boundary of liberal construction: it “stops” when the court would be forced to act as an advocate. In practical terms, the court would not craft jurisdictional arguments or reconstruct a compliant pleading or appellate brief for Mr. Davison.

6. Adams v. Fed. Aviation Admin., 168 F.4th 1271 (10th Cir. 2026)

The panel relied on Adams v. Fed. Aviation Admin. for the rule that arguments inadequately briefed in the opening brief are waived. This provided the decisive appellate mechanism: even if an appellant believes the district court erred, failure to develop a reasoned challenge to the dispositive grounds for dismissal typically ends the appeal.

7. Ohlsen v. United States, 998 F.3d 1143 (10th Cir. 2021)

The court cited Ohlsen v. United States to decline review of Mr. Davison’s recusal claim. Because he did not move for recusal in the district court and only indirectly mentioned it in objections (while withholding his asserted basis), the issue was not adequately presented below; consistent with Ohlsen, the panel declined to consider it for the first time on appeal.

Legal Reasoning

1. No diversity jurisdiction under 28 U.S.C. § 1332. The operative defendants were federal: the SSA, the Commissioner, and the United States. Diversity jurisdiction requires “citizens” of different states; the United States is not a state citizen for diversity purposes, and federal agencies/officers sued in their official capacities do not create diversity. This foreclosed the jurisdictional basis Mr. Davison invoked.
2. § 405(g) is the exclusive channel for benefits-related claims. Under Heckler v. Ringer, claims “arising under” the Social Security Act must proceed through § 405(g). Mr. Davison’s requested relief—retroactive disability benefits and alleged underpayment—squarely implicated the Act’s benefits adjudication scheme, regardless of his choice to plead tort and contract labels.
3. Failure to plead exhaustion in the amended complaint defeats § 405(g) jurisdiction. The district court required allegations showing completion of the administrative steps described in Smith v. Berryhill. Mr. Davison insisted (in objections) that he completed them, but his amended complaint did not allege such facts. Because subject matter jurisdiction must be established on the operative pleadings and the plaintiff bears the burden of demonstrating it, the absence of exhaustion allegations supported dismissal under Rule 12(b)(1).
4. Objections to a recommendation are not a proper vehicle to amend the operative complaint. The district court treated Mr. Davison’s attempt to add exhaustion facts through objections as procedurally improper. The Tenth Circuit did not disturb that conclusion; instead, it noted Mr. Davison did not meaningfully challenge this reasoning on appeal.
5. Inadequate appellate briefing results in waiver. Applying Garrett v. Selby Connor Maddux & Janer and Adams v. Fed. Aviation Admin., the panel held that generalized assertions that the magistrate judge and government were “wrong,” coupled with failure to engage the district court’s specific jurisdictional grounds, amounted to inadequate briefing. With no developed argument demonstrating reversible error, the court declined substantive review and affirmed.
6. Recusal issue not preserved. Under Ohlsen v. United States, the recusal claim was forfeited because it was not properly raised in the district court by motion, and the panel found no compelling reason to address it for the first time on appeal.

Impact

Although the decision is designated as a nonprecedential “Order and Judgment,” it is significant for its practical, recurring lessons in Social Security litigation—especially for pro se claimants:

• Pleading discipline in § 405(g) cases: Claimants must allege (not merely believe or later assert) facts showing completion of the administrative process—or otherwise explain a legally cognizable basis for jurisdiction. Courts will not infer exhaustion when the complaint is silent.
• Channeling and re-labeling: Attempting to repackage benefits disputes as FTCA or contract claims is unlikely to avoid the Social Security Act’s exclusive review route under Heckler v. Ringer.
• Procedure matters as much as substance: Even if a claimant could ultimately show exhaustion, failing to place the necessary allegations in the operative complaint can lead to dismissal—though here, importantly, without prejudice, preserving the possibility of refiling with proper jurisdictional allegations.
• Appellate briefing as a gatekeeper: The opinion underscores that appellate courts will affirm when appellants do not confront the district court’s dispositive reasoning with developed argument and authority, even when filings are liberally construed.

Complex Concepts Simplified

Subject matter jurisdiction

The court’s legal power to hear a particular type of dispute. If jurisdiction is missing, the case must be dismissed even if the plaintiff might otherwise have a valid grievance.

Diversity jurisdiction (28 U.S.C. § 1332)

A basis for federal jurisdiction when opposing parties are citizens of different states and the amount in controversy is met. The United States and its agencies are not “citizens” for diversity purposes.

Federal question jurisdiction (28 U.S.C. § 1331) vs. § 405(g)

Federal question jurisdiction is broad, but in Social Security benefits disputes Congress provided a specific, limited pathway—42 U.S.C. § 405(g)—that generally displaces § 1331 for claims “arising under” the Act.

Administrative exhaustion (the four-step process)

Before a federal court can review a benefits dispute, claimants usually must pursue the agency process through an initial determination, reconsideration, an ALJ hearing, and Appeals Council review. Completion of these steps is what typically generates a reviewable “final decision.”

Rule 12(b)(1) dismissal

A motion arguing the court lacks subject matter jurisdiction. Such dismissals are commonly without prejudice because the court is not reaching the merits.

Waiver for inadequate briefing

On appeal, courts generally consider only issues that are clearly argued, supported by reasoning, and (typically) supported by legal authority. A bare assertion that the lower court was wrong is usually not enough.

Issue preservation / raising issues for the first time on appeal

Appellate courts typically do not consider arguments not properly presented to the district court. Recusal arguments, in particular, are ordinarily raised by motion when the issue arises.

Conclusion

Davison v. Bisignano reinforces two procedural pillars in Social Security litigation and appellate practice: (1) benefits-related claims must proceed through § 405(g) and require well-pleaded allegations showing administrative exhaustion, and (2) on appeal, even pro se litigants must develop arguments that directly confront the district court’s dispositive reasoning, or risk waiver and affirmance. The dismissal without prejudice preserves the claimant’s ability to refile, but only if he can properly plead a jurisdictional basis consistent with the Social Security Act’s exclusive review scheme.