Opinion
No. CV-15-00344-PHX-DGC
11-02-2016
Michael A McCoy, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
ORDER
Defendant moves to dismiss this action for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Doc. 21. Plaintiff files a response. Doc. 22. No party requests oral argument. The Court will grant the motion.
I. Background.
On August 17, 2010, Defendant denied Plaintiff's claim for disability insurance benefits. Id. at 2. On December 9, 2011, at Plaintiff's reconsideration hearing, an administrative law judge reversed and forwarded Plaintiff's claim for processing. Id. On June 16, 2012, Defendant sent Plaintiff a Notice of Award informing him he was entitled to disability insurance benefits. Id. Upon Plaintiff's request, Defendant conducted a review of Plaintiff's benefits calculation. Id. On July 22, 2012 Plaintiff received notice that upon review, Defendant found the first decision's calculation to be correct.. Id. The July 22, 2012 notice also informed Plaintiff that, if he disagreed with the decision, he had the right to request a hearing before an ALJ and he had 60 days from the date he received the letter to make the request. Id. No evidence suggests Plaintiff made such a request. Id. On February 25, 2015, Plaintiff filed this action. Doc. 1.
II. Analysis.
"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. Where, as here, Defendant factually challenges the assertion of jurisdiction, the court may consider evidence extrinsic to the complaint. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). Plaintiffbears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Id.
A federal district court has jurisdiction to review a final decision of Defendant made after a hearing to which the plaintiff was a party. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). No findings of fact or decision by Defendant may be reviewed except as provided under 42 U.S.C. § 405(g). 42 U.S.C. § 405(h). If the requirements of § 405(g) are not satisfied, a federal district court may have subject jurisdiction only over a "colorable constitutional claim" asserted by the plaintiff. Califano v. Sanders, 430 U.S. 99, 109 (1977). Plaintiff has made no constitutional claim.
Plaintiff has made no assertion and presented no evidence that Defendant has made a reviewable final decision. See Docs. 1, 22. Plaintiff has made no assertion and presented no evidence that he requested a hearing to challenge the determination of the amount of his benefits. Id. Plaintiff's one-page response states only that "Rule 103 on evidence in SSA attorney letter dating July 22 2016, which I never received, did not give me the chance to go before a administrative law judge to question the amount of benefit paid to me." Doc. 22.
Plaintiff has failed to meet his burden of establishing subject matter jurisdiction by a preponderance of the evidence. Robinson, 586 F.3d 685. Accordingly, the Court will grant Defendant's motion to dismiss.
IT IS ORDERED: Defendant's motion to dismiss for lack of subject matter jurisdiction (Doc. 21) is granted. The Clerk is directed to terminate this matter.
Dated this 2nd day of November, 2016.
/s/_________
David G. Campbell
United States District Judge