Opinion
CAUSE NO. 1:03-CV-13
May 5, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
The Plaintiff Carolyn Blevin-Moore ("Plaintiff") brings this action against the Defendant, Commissioner of Social Security (the "Commissioner"), seeking not only a writ of mandamus, pursuant to 28 U.S.C. § 1361, mandating that this case be remanded to Social Security so she can be given a meaningful opportunity to show "good cause" for her failure to attend her own administrative hearing, but also judicial review over the final decision of the Commissioner, pursuant to 42 U.S.C. § 405(g), for an alleged due process violation.
Currently before the Court, is the Commissioner's March 13, 2003, motion to dismiss the Plaintiff's Complaint for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). The Plaintiff submitted a response brief on April 7, 2002, and, after an extension of time, the Commissioner replied on May 1, 2003. For the following reasons, the Commissioner's motion to dismiss will be GRANTED in part and DENIED in part.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
II. PROCEDURAL AND FACTUAL BACKGROUND
After the Plaintiff failed to appear for her own administrative hearing four times in a row, the Administrative Law Judge Bryan Bernstein (the "ALJ") dismissed her request for a hearing, effectively sounding the death knell on her claim for disability benefits. More to the point, the Plaintiff's fourth hearing was scheduled for July 2, 2002, and while she admittedly received adequate notice of the hearing, she failed to appear and instead faxed a note to the ALJ stating:
The Plaintiff proceeded pro se through the administrative stages of her case.
The first three hearings were set for October 17, 2001, January 17, 2002, and April 30, 2002, and each were continued after the ALJ found "good cause" to reschedule them. (See Stone Decl. ¶¶ 3(a)-(f), Exs. 3-11.)
I am unable to attend this morning because I am very, very weak My liver enzymes are high, which could be the cause of my weakness.
I had not anticipated [that] I would be so weak this morning, or I would have contacted you sooner.
I don't know what is suppose[d] to be done now? [sic] I pray you will not be angry with me, for this is out of my control. I made sure I got lots of sleep yesterday, in preparation for today . . . but it did not help.
Please let me know what happens now.
(Stone Decl., Ex. 11) (ellipses in original).
The ALJ, apparently frustrated with the Plaintiff's chronic non-attendance, issued an order finding that the Plaintiff's allegation of being "very, very weak" did not constitute good cause to reschedule the hearing, particularly in light of her "history of reluctance to come to [the] hearing." (Stone Decl., Ex. 12 at 3.) The Appeals Council subsequently denied the Plaintiff's request to review the ALJ's dismissal. (Stone Decl. ¶ 3(f), Ex. 14.) In her motion to dismiss, the Commissioner argues that 42 U.S.C. § 405(g) ("§ 405(g)") of the Social Security Act does not confer this Court with jurisdiction to consider this claim because that statute only allows us to review the "final decision of the Commissioner . . . made after a hearing," but here, there was no hearing, and thus, no final decision. Id. (emphasis added).
The Plaintiff, in contrast, points out that Count I of her Complaint is one sounding in mandamus, whose jurisdiction is conferred by 28 U.S.C. § 1361 rather than the Social Security Act. She also contends that Count II should not be dismissed because she is alleging a due process violation.
III. STANDARD OF REVIEW
A motion under Rule 12(b)(1) may be used to challenge the facial sufficiency of the pleadings, or the factual substance of the jurisdictional allegations. See, e.g., United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). "When considering a motion to dismiss for lack of subject matter jurisdiction, [the] court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. . . . [But in doing so, t]he court may look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003).
IV. DISCUSSION
The Commissioner's keystone argument is that § 405(g) does not confer jurisdiction on this Court to hear the Plaintiff's claim for judicial review of the dismissal of her request for an administrative hearing.
Indeed, "[§ 405(g)] has been narrowly construed to authorize federal courts to review only `final' decisions of the [Commissioner] `made after a hearing.'" Johnson v. Sullivan, 936 F.2d 974, 975 (7th Cir. 1991) (quoting Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986 (1977)); Giacone v. Schweiker, 656 F.2d 1238, 1242 (7th Cir. 1981) ("Section 405(g) confers jurisdiction to review an administrative denial of Social Security benefits only when the claimant had obtained a `final decision by the Secretary after a hearing.' [Califano], 430 U.S. at 108"). As the Supreme Court notes, § 405(g) "clearly limits judicial review to a particular type of administrative action." Califano, 430 U.S. at 108. Here, since there was never a hearing, the Commissioner has not entered a "final decision," depriving this Court of jurisdiction to review this case under § 405(g). See Califano, 430 U.S. at 108; Johnson, 936 F.2d at 975; Giacone, 656 F.2d at 1242.
However, this analysis only carries force with respect to Count II of the Complaint. There, the Plaintiff alleged that this Court has jurisdiction under § 405(g) to review the ALJ's decision to determine whether the ALJ violated due process when he dismissed her request for a hearing violation. However, since, as discussed above, the Commissioner has not entered a final decision in this case, we necessarily lack jurisdiction under § 405(g) to consider Count II, and dismissal is warranted on that claim. See id.
The Plaintiff claims that the Commissioner's motion effectively "concedes" this Court has subject matter jurisdiction over Count II. (Pl.'s Resp. at 5.) However, our review of the Commissioner's brief reveals no such concession, and even if it conceded the point, parties cannot stipulate to subject matter jurisdiction. See Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th Cir. 2001) (quoting United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000)) ("[n]o court may decide a case without subject-matter jurisdiction, and neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction.").
As for Count I of the Complaint, the Commissioner's argument begins with the faulty premise that § 405(g) provides the sole jurisdictional basis for the Court to review the decision of the ALJ. (See Def.'s M. to Dismiss at 3.) Although it is true that 42 U.S.C. § 405(h) states that "[n]o action against . . . the Commissioner . . . shall be brought under [ 28 U.S.C. §] 1331 or 1346," it is well established that 28 U.S.C. § 1361 provides mandamus jurisdiction in cases challenging the procedures used in administering Social Security benefits. See Burnett v. Bowen, 830 F.2d 731, 738 (7th Cir. 1987) ("Congress' failure to express disapproval of the use of mandamus jurisdiction in Social Security cases when it amended other jurisdictional provisions [i.e., 42 U.S.C. § 405(h)] is evidence that Congress intended to preserve mandamus jurisdiction for claims that are procedural in nature under the Social Security Act.") Here, Count I of the Plaintiff's complaint sounds in mandamus, and specifically invokes this Court's mandamus jurisdiction to correct an alleged procedural error. (See Compl. ¶ 1) ("The jurisdiction of this Court on Count I is invoked pursuant to 28 U.S.C. [§] 1361 to compel the . . . Commissioner to perform a duty owed to the Plaintiff.") Accordingly, the Court clearly has subject matter jurisdiction over Count I of the Plaintiff's Complaint. See Burnett, 830 F.2d at 738.
CONCLUSION
For the foregoing reasons, Commissioner's motion to dismiss for lack of subject matter jurisdiction is hereby GRANTED as to Count II of the Complaint, but DENIED as to Count I. Further, because the parties' arguments have, to some extent, implicated the merits of the mandamus claim, the Court hereby sets this matter for a status/scheduling conference on May 15, 2003, at 4:00 p.m., to discuss an anticipated motion (or cross-motions) for summary judgment.
SO ORDERED.