Opinion
CIV-S-07-2685 GGH.
October 31, 2008
ORDER
Defendant's motion to dismiss, filed April 17, 2008, is pending before the court. Plaintiff filed an opposition. After reviewing the papers, the court issues the following order.
The case is before the undersigned pursuant to 28 U.S.C. § 636(c) (consent to proceed before a magistrate judge).
Plaintiff filed a complaint and writ of mandamus for declaratory relief on December 11, 2007, seeking an order requiring defendant to issue a substantive determination in response to plaintiff's timely request for review of the ALJ decision. Defendant had previously dismissed the request due to untimeliness. By his motion to dismiss, defendant now states he has reconsidered and the Appeals Council has agreed to vacate its dismissal and deem plaintiff's request timely filed. Therefore, the Secretary argues that the complaint is moot. Alternatively, defendant claims that the court lacks subject matter jurisdiction because the Appeals Council has not yet granted plaintiff's request for review; therefore, plaintiff has failed to exhaust his administrative remedies, and there has been no final decision by the Commissioner. Plaintiff does not object to the Secretary's decision to deem plaintiff's request for review as timely filed; however, plaintiff is concerned that this mere promise is unenforceable. To resolve plaintiff's concerns, the action will be dismissed without prejudice should plaintiff need to return to court to enforce this promise. There being no remaining case or controversy, defendant's motion will be granted in part. Defendant's motion as it pertains to failure to exhaust administrative remedies is denied as there has been a final decision of the Appeals Council dismissing the request for review as untimely.
Accordingly, IT IS ORDERED that Defendant's motion to dismiss, filed April 17, 2008, is granted in part on mootness grounds, and this action is dismissed without prejudice.