MEMORANDUM-DECISION ORDER

NEAL P. MCCURN, Senior United States District Judge

Procedural Background

Presently before the court is defendant's motion to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction due to plaintiff's failure to exhaust his administrative remedies. Plaintiff, Anthony J. Scott, a former recipient of Supplemental Security Income ("SSI") benefits under Title 16 of the Social Security Act, is seeking judicial review of matters surrounding defendant's determination and recoupment of two alleged SSI overpayments. Defendant, Commissioner of the Social Security Administration ("the Commissioner"), is charged by Congress with the duty to ascertain SSI entitlements and to determine and recoup SSI overpayments. See 42 U.S.C. § 1381a, 1383(b). The Commissioner is the proper defendant in any action seeking judicial review under the Social Security Act. See Keesing v. Apfel, 124 F. Supp.2d 134, 135 (N.D.N.Y. 2000), (citing 42 U.S.C. § 405(g), 1383(c)(3)).

There is a preliminary matter the court will address before turning to the central issue of defendant's motion. The Commissioner indicates in her brief that she will not address allegations regarding plaintiff's wife's benefits since the present action is filed solely on plaintiff's behalf. See Br. for Def., at 1. Mr. Scott's complaint enumerates three causes of action. First, he requests an investigation of the disposition of approximately $13,000 in SSI benefits directly deposited to his former wife's bank account from 1986 through 1989 because, he claims, he never personally received any of these funds. See Comp., at ¶ 5. Second, Mr. Scott requests a similar investigation regarding $588 in SSI benefits purportedly directly deposited into his current wife's bank account. He alleges both the $588 and the approximately $13,000 in overpaid funds were actually stolen by a Social Security Administration ("SSA") employee. See id. Finally, Mr. Scott requests a refund of all SSI benefits erroneously recouped from his monthly SSI payments as well as $292 in federal income tax he alleges were withheld to repay the overpayment.

Presumably, the Commissioner misinterprets plaintiff's second cause of action regarding "the $588 [directly deposited] into [his] wife's savings account" as addressing plaintiff's wife's benefits. See id. According to Mr. Scott, the $588 in question were his SSI funds allegedly directly deposited into his current wife's account in December 1998. See Compl., at ¶ 4. All three causes of action allege wrongs solely against plaintiff. Therefore, the court will construe defendant's motion as petitioning for dismissal of all three of plaintiff's causes of action.

Factual Background

According to plaintiff, he was incarcerated August 1986 through May 1996. Plaintiff alleges that he twice informed SSA in writing of his incarceration: first, when he was held at the Syracuse Public Safety Building, and again upon his transfer to prison. See Compl. at ¶ 4. SSA alleges that it has no record of Mr. Scott reporting his incarceration, and further that he signed a redetermination of eligibility form indicating that he lived alone and was not in an institution. See Decl. of Diane H. Grooms, Aug. 8, 2002, at ¶ 4; Def.'s Exhibits (Ex.) 4B and 4C. It is unclear from the record exactly how or when SSA learned of Mr. Scott's incarceration. However, it appears SSA purportedly issued Mr. Scott's SSI benefits by directly depositing funds into a credit union account belonging to Mr. Scott and his then wife, Francis Scott, during a portion of the time Mr. Scott was incarcerated. Once SSA discovered that Mr. Scott had in fact been incarcerated, his SSI payments were terminated and an overpayment was established on his benefit record.

Plaintiff claims that he was first informed of his overpayment in May 1996, after his release from prison, when he went to the SSA District Office ("DO") to seek reinstatement of his SSI benefits. See Compl., at ¶ 4. According to SSA, Mr. Scott was notified in writing on April 24, 1996 that he was overpaid $13,230.83 in SSI benefits for the period November 1986 through August 1989 as he was not entitled to receive SSI while incarcerated. See Decl., at ¶ 2; Ex. 2. SSA also states that in this same letter Mr. Scott was informed of his right to appeal its determination and/or request a waiver of collection of the overpayment. See Decl., at ¶ 2; Ex. 2. SSA claims that Mr. Scott requested a waiver of the overpayment on April 24, 1996, which it denied in writing on June 5, 1996. See Decl., at ¶¶ 3 and 4; Ex. 3 and 4A. Mr. Scott does not acknowledge that he requested a waiver of this overpayment in April 1996 and states only that he was "informed that 10% would be deducted from [his] SSI check each and every month" and that thereafter "over $50.00 was taken from [his] check each month." See Compl., at ¶ 4. According to SSA, Mr. Scott appealed the waiver denial by requesting reconsideration on June 10, 1996. See Decl., at ¶ 5; Ex. 5. On June 14, 1996, SSA claims it denied Scott's reconsideration and notified him of such denial in writing. See Decl., at ¶ 6; Ex. 6. Although SSA claims to have advised Mr. Scott of his appeal rights in both the waiver denial letter of June 5 and the reconsideration denial letter of June 14, it alleges having no record of him requesting a hearing regarding the June 14 denial. See Decl., at ¶¶ 4, 6, and 7.

Mr. Scott states that he remarried in November 1998 and went into the SSA DO to report his change in status. According to Mr. Scott, an SSA employee explained that he was no longer eligible for SSI because of the funds in his new wife's bank account. Thereafter, Mr. Scott claims, he was imprisoned for 21 months due to a parole violation. Upon his release in August 2000, Mr. Scott states that he again went to the SSA DO to seek reinstatement of his SSI and was then informed of an additional overpayment of $588 purportedly incurred by him in December 1998. Mr. Scott alleges that although he was told that the $588 overpayment was directly deposited to his current wife's account, there is no entry on her December 1998 bank statement indicating that any funds were directly deposited that month. See Compl., at ¶ 4.

SSA is currently in receipt of another request for waiver of Mr. Scott's overpayment incurred from November 1986 through August 1989, which it claims is a duplicate of the waiver request allegedly submitted by him on April 24, 1996. See Decl., at ¶ 9. This latest request, dated September 17, 2001, has not yet been processed, although SSA is "planning on rectifying this omission as soon as possible". See Decl., at ¶ 9; Br. for Def., at 6 n. 3. Mr. Scott states that he was verbally informed by an SSA employee during his visit to the DO on April 19, 2002 that this waiver request was denied. See Compl., at ¶ 4. On April 29, 2002, Mr. Scott filed this lawsuit.

Discussion

Appearing pro se, Anthony J. Scott, in this action brought pursuant to 42 U.S.C. § 1983, is seeking judicial review of matters surrounding SSA's determination and recoupment of his overpaid SSI benefits. Presently before the court is a motion by the Commissioner to dismiss Mr. Scott's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction based on his failure to first exhaust all administrative remedies available to him. Defendant's Notice of Motion clearly advises Mr. Scott that he was to submit opposition papers on or before September 12, 2002. Despite that unequivocal language, to date Mr. Scott has not filed any papers in opposition to the Commissioner's motion. In his complaint, however, plaintiff asserts several possible bases for this court's subject matter jurisdiction: (1) 28 U.S.C. § 1331 (federal question), (2) 1343(3) and (4) (civil rights), and (3) 2201 (declaratory judgment). See Compl., at ¶ 1.

A case may be properly dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court lacks statutory or constitutional authority to adjudicate it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When deciding whether to grant a 12(b)(1) motion to dismiss, the court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to [the] plaintiff". See McGinty v. State, 193 F.3d 64,68 (2d Cir. 1999). In addition, when a plaintiff such as Mr. Scott appears pro se, the court must read the complaint liberally. See Shah v. N.Y. Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999), (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596 (1972)). The court may also refer to evidence outside the pleadings and the plaintiff carries the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See Makarova, 201 F.3d at 113, (citing Kamen v. American Tel. Tel. Co., 791 F.2d 1006,1011 (2d Cir. 1986); Malik v. Meissner, 82 F.3d 560,562 (2d Cir. 1996)).

Defendant maintains that 42 U.S.C. § 405(g) and (h) provide the exclusive jurisdictional basis for judicial review of cases arising under the Social Security Act (the "Act"). The Commissioner is overlooking, however, the fact that this court may exercise jurisdiction over such claims pursuant to § 405(g) or the Mandamus Act, 28 U.S.C. § 1361. Section 405(g) allows for judicial review by commencement of a civil action within sixty days of a "final decision of the Commissioner of Social Security" and § 405(h) specifically bars judicial review except as otherwise provided in the Act, including suits against the Commissioner under 28 U.S.C. § 1331 or § 1346. This exhaustion requirement may be waived by the Commissioner when deemed futile, however. See Heckler v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 2023 (1984). Moreover, in "certain special cases", the court may deem it inappropriate to defer to the Commissioner's discretion and it may exercise jurisdiction despite a lack of exhaustion. See Heckler, 466 U.S. at 618, 104 S.Ct. at 2023. The Supreme Court has held that such a case exists where a plaintiff makes a "procedural challenge . . . wholly `collateral' to his claim for benefits, and where he [makes] a colorable showing that his injury [can] not be remedied by the retroactive payment of benefits after exhaustion of his administrative remedies."

See id, (citing Matthews v. Eldridge, 424 U.S. 319, 330-332, 96 S.Ct. 893, 900-901 (1976)). An alternative basis for subject matter jurisdiction is the Mandamus Act, which states that a "district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361 (emphasis added). Although the Supreme Court has declined to address the issue, see Heckler, 466 U.S. at 616, 104 S.Ct. at 2022, the Second Circuit has held that 42 U.S.C. § 405(h) does not foreclose the court's exercise of mandamus jurisdiction pursuant to 28 U.S.C. § 1361. See Dietsch v. Schweiker, 700 F.2d 865, 867-68 (2d Cir. 1983).

Mandamus jurisdiction exists where plaintiff is challenging "otherwise unreviewable procedural issues not related to the merits of a claim for benefits" and where plaintiff has no other available avenues for relief. See Dietsch, 700 F.2d at 868. The Supreme Court has held that mandamus "is intended to provide a remedy for plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." See Heckler, 466 U.S. at 616, 104 S.Ct. at 2022.

The result in this case turns upon the court's interpretation of plaintiff's complaint. In motions to dismiss pro se cases such as this, especially those addressing civil rights violations, the Second Circuit held that plaintiff's complaint must be read liberally and should be interpreted to raise the strongest arguments it suggests. See Weixel v. Board of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002), (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)).

Giving plaintiff Scott's complaint the most liberal reading possible, the court must, his request for an "investigation" into the disposition of his SSI funds allegedly electronically deposited into the bank accounts of both his current and former wives may be interpreted as a request for a pre-recoupment hearing. There is some authority, albeit not binding on this court, suggesting that the defendant's motion to dismiss based on lack of subject matter jurisdiction should be denied where plaintiff's complaint challenges SSA's decision not to afford him a pre-recoupment hearing, as the court would have jurisdiction under both § 405(g) and mandamus. See Bronstein v. Apfel, 158 F. Supp.2d 1208, 1214 (D.Colo. 2001). The Bronstein court held that 42 U.S.C. § 405(g) did not bar jurisdiction, reasoning that the final decision at issue was not SSA's decision to recoup the overpayment, but instead its decision not to provide a pre-recoupment hearing. See id. Alternatively, the court in Bronstein found jurisdiction under the Mandamus Act, since plaintiff was making a procedural challenge unrelated to the merits of his entitlement to SSI benefits. See id. Another district court, relying on the Supreme Court's decision in Califano v. Yamasaki, held that denial of a 12(b)(1) motion to dismiss based on lack of exhaustion is proper where a plaintiff who requested waiver of an SSI overpayment was not allowed an opportunity to request a personal conference with a decision maker before such waiver was denied. See Page v. Schweiker, 571 F. Supp. 872, 878-79 (M.D.Pa. 1983), (citing Yamasaki, 442 U.S. 682, 695, 99 S.Ct. 2545, 2555 (1979)). The Page court rejected plaintiff's claim that it lacked subject matter jurisdiction, stating that SSA's regulations and procedures regarding waiver of SSI overpayments represented the final position of the Secretary and that in any event defendant "asserted at least a `colorable' constitutional claim." See Page, 571 F. Supp. at 874 n. 6. Based on this language, it appears the court in Page found it had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g), or that alternatively it should waive § 405(g)'s exhaustion requirement because plaintiff made a `colorable' constitutional claim. See id; Heckler, 466 U.S. at 618, 104 S.Ct. at 2023.

Here, unlike the plaintiff in Page, Mr. Scott is filing this lawsuit pro se. See Page, 571 F. Supp. at 873. In Page, the court had before it a clear procedural challenge by plaintiff, whereas here, the court must interpret Mr. Scott's complaint to find such a challenge. While the plaintiff in Bronstein appeared pro se, that court's decision gives little guidance regarding the interpretation issue, stating simply that plaintiff sought recovery of his SSI benefits, "claiming they had been recouped without due process because he had requested but not received a hearing before recoupment began." See Bronstein, 158 F. Supp.2d, at 1212. Unlike Mr. Bronstein, here plaintiff Scott does not allege that he ever requested a pre-recoupment hearing, much less that such request had been denied. Mr. Scott is requesting, over three years after SSA began recoupment of his overpayment, that SSA now investigate the disposition of SSI funds allegedly deposited electronically into the bank accounts of both his current and former wives because he claims never to have received such funds. See Compl., at ¶ 4. His complaint is not that SSA failed to give him an opportunity to be heard in person prior to recoupment of his overpayment, but instead that SSA never initially paid him the alleged overpaid funds. As such, Mr. Scott's claim is not a procedural one and is not "wholly collateral to his claim for benefits". Cf. Heckler, 466 U.S. at 618, 104 S.Ct. at 2023 (citing Matthews, 424 U.S. at 330-332, 96 S.Ct. at 900-901). Instead, his claim is directly related to the merits of his argument that he was not, in fact, overpaid.

Given that this court determines plaintiff's claim is not procedural in nature and not unrelated to the merits of his claim for benefits, subject matter jurisdiction is precluded under the Mandamus Act, 28 U.S.C. § 1361. See Heckler, 466 U.S. at 616, 104 S.Ct. at 2022; Dietsch, 700 F.2d at 868. Similarly, this court cannot waive the exhaustion requirement under 42 U.S.C. § 405(g). See Heckler, 466 U.S. at 618, 104 S.Ct. at 2023. Consequently, an analysis of the exhaustion requirement under § 405(g) is necessary in order to determine whether Mr. Scott's actions comply therewith.

Section 405(g) provides that this court has jurisdiction over claims arising under the Social Security Act only when a plaintiff has received a "final decision" from the Commissioner. The statute is silent regarding the meaning of "final decision," and the Commissioner is left the task of defining this term by regulation. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467 (1975). SSA regulations provide a four-step administrative review procedure for SSI recipients to utilize when challenging an agency determination. See 20 C.F.R. § 416.1400. Once an initial determination is made, the SSI recipient may appeal that determination by requesting a redetermination. See 20 C.F.R. § 416.1413b. If the outcome of the redetermination is not satisfactory, the SSI recipient may request a hearing before an Administrative Law Judge ("ALJ"). See 20 C.F.R. § 416.1430. If the ALJ's decision is also not satisfactory, the SSI recipient may request Appeals Council review. See 20 C.F.R. § 416.1467. Finally, if the SSI recipient is dissatisfied with the Appeals Council determination, judicial review may then be sought in district court. See 20 C.F.R. § 416.1481. Thus, a "final decision" subject to judicial review has been defined by regulation as a decision by the Appeals Council.

Here, SSA denied Anthony Scott's request for a waiver of his SSI overpayment. See Decl. of Diane Grooms, Aug. 8, 2002, at ¶¶ 3, 4. Whether an overpayment must be repaid is considered an initial determination subject to administrative and judicial review. See 20 C.F.R. § 416.1402(c). In accordance with the regulations delineated above, Mr. Scott requested a redetermination of his waiver denial and, following that request, was notified of SSA's decision not to reverse the initial determination, and to continue collection of his overpayment. See Decl., at ¶¶ 5, 6. SSA declares, however, that Mr. Scott did not request a hearing before an ALJ within the 60-day appeals period. See id., at ¶ 7. Plaintiff does not to rebut this allegation in his complaint. Further, Mr. Scott did not submit papers in opposition to SSA's motion to dismiss his complaint, waiving his right to dispute defendant's allegations. See N.D.N.Y. R. 7.1(b)(1)(B).

Therefore, this court finds that plaintiff failed to exhaust his administrative remedies, and as such did not obtain a "final decision" subject to judicial review under 42 U.S.C. § 405(g). Plaintiff's failure to obtain a judicially reviewable final decision precludes this court's exercise of jurisdiction over his claims pursuant to section 405(g). Likewise, mandamus jurisdiction is not available due to the nature of plaintiff's claims. See 28 U.S.C. § 1361. Therefore, defendant's motion to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) is granted.

IT IS SO ORDERED.