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JO A N N YO U N G ,
Plaintiff-Appellant,
v.
M ICH AEL J. ASTRU E, *
Commissioner of the Social Security
Administration,
No. 06-6275
(D.C. No. CIV-05-1239-R)
(W .D. Okla.)
Defendant-Appellee.
Plaintiff Joann Young, proceeding pro se, appeals from the district courts
judgment affirming the final decision of the Commissioner of Social Security
denying her disability insurance benefits (DIB) under Title II of the Social
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Our local rule requires an appellant to include with her opening brief a
copy of a magistrate judges report and recommendation when a district court
adopts it. 10th Cir. R. 28.2(A)(1). Because M s. Young did not include a copy of
the magistrate judges report and recommendation with her opening brief, the
Commissioner w as required to include it w ith his brief. See 10th Cir. R. 28.2(B)
(If the appellants brief fails to include all the rulings required by (A), the
appellees brief must include them.). Because the Commissioner did not include
a copy of the report and recommendation, we remind him of his obligation to do
so in the future.
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M s. Youngs second issue is that she was denied her right to a jury trial in
the district court. W hether M s. Young was entitled to a jury trial is a question of
law that we review de novo. M ile High Indus. v. Cohen, 222 F.3d 845, 855
(10th Cir. 2000). The statute providing for judicial review of the Commissioners
decision, 42 U.S.C. 405(g), is a waiver of the United States sovereign
immunity. See Bowen v. City of New York, 476 U.S. 467, 479 (1986); Huie v.
Bowen, 788 F.2d 698, 705 (11th Cir. 1986). Since there is no generally
applicable jury trial right that attaches w hen the United States consents to suit,
the accepted principles of sovereign immunity require that a jury trial right be
clearly provided in the legislation creating the cause of action. Lehman v.
Nakshian, 453 U.S. 156, 162 n.9 (1981).
Section 405(g) does not clearly provide a jury trial right, and another
subsection of 405 provides that [n]o findings of fact or decision of the
Commissioner of Social Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. 42 U.S.C. 405(h). Therefore,
Congress did not clearly provide a jury trial right in the legislation creating a
cause of action for review of a social security benefits decision. Consequently,
the district court properly rejected M s. Youngs demand for a jury trial. See
Ginter v. Secy of Dept of Health, Educ., & Welfare, 621 F.2d 313, 313-14
(8th Cir. 1980) (per curiam) (holding that district courts role under 405(g) is
limited to review ing the administrative record to determine whether there is
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substantial evidence to support the findings of the [Commissioner] and that the
court cannot grant a trial de novo before either the court or a jury).
III.
The judgment of the district court is AFFIRMED.
M ichael R. M urphy
Circuit Judge
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