Opinion
Case No. 6:18-cv-00384-YY
05-23-2019
TIMOTHY M., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATIONS :
Timothy M. ("plaintiff") has filed a petition seeking reinstatement of Title II Disability Insurance Benefits ("DIB"), which he contends were improperly terminated by the Social Security Administration in June 2015. Compl., ECF #1. Plaintiff filed his petition on March 2, 2018, while he was incarcerated, seeking to have his benefits reinstated immediately upon his anticipated release in July 2018. Id. Plaintiff was released in July 2018 (ECF #13) and his benefits were reinstated in November 2018.
Because plaintiff failed to exhaust administrative remedies, this court does not have jurisdiction to review the Commissioner's decision. Additionally, plaintiff seeks other relief (e.g., premarital counseling with his fiancé) that do not constitute valid claims under the Social Security Act ("SSA"). Accordingly, the Commissioner's Motion to Dismiss (ECF #42), to which plaintiff has filed no response, should be GRANTED.
BACKGROUND
Plaintiff applied for Title II benefits on September 11, 2009, and his application was denied initially and on reconsideration. Decl. of Christianne Voegele ("Voegele Decl.") 3, ECF #42-1. After a hearing, an administrative law judge ("ALJ") issued a favorable decision on July 30, 2010. Id., Ex. 1, ECF #42-1, at 4. On June 19, 2015, plaintiff was notified that he was no longer entitled to further disability benefits. Id., Ex. 3, ECF #42-1, at 13.
Plaintiff filed this action with the court on March 2, 2018. Compl., ECF #1. In a revised determination dated November 16, 2018, plaintiff's disability was determined to be continuing and his benefits were reinstated. Voegele Decl., Ex. 4, ECF #42-1, at 16.
FINDINGS
I. Failure to Exhaust and Subject Matter Jurisdiction
The Commissioner moves for dismissal pursuant to FRCP 12(b)(1), asserting that the court lacks subject matter jurisdiction because plaintiff failed to exhaust administrative remedies.
"Federal courts are courts of limited jurisdiction," and there is a presumption "that a cause [of action] lies outside this limited jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court must dismiss a claim if at any time it determines that it lacks subject matter jurisdiction. FRCP 12(h)(3).
A defendant may move to dismiss for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1). "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); see Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 n.2 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004). A facial attack is an assertion that the allegations in the complaint are insufficient to invoke federal jurisdiction. Id. A factual attack is "where 'the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'" Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997) (noting a factual challenge "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency") (citation and quotation marks omitted). When a defendant factually challenges the plaintiff's assertion of jurisdiction, the court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Safe Air for Everyone, 373 F.3d at 1039. "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage, 343 F.3d at 1039 n.2.
B. Social Security Exhaustion Requirement
"[T]he United States, as sovereign, is immune from suit, save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain suit." United States v. Dalm, 494 U.S. 596, 608 (1990) (citations and quotation marks omitted); Hercules, Inc. v. United States, 516 U.S. 417, 422 (1996). Congress may prescribe the procedures and conditions under which the federal courts may review administrative decisions. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958). Congress has expressly provided that under the SSA, an individual may only bring suit after a "final decision of the Commissioner of Social Security." 42 U.S.C. § 405(g). A final decision requires "complete exhaustion of administrative remedies." Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003) (citing Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1992)). Furthermore, Section 405(g) provides the sole jurisdictional basis for judicial review of any claim arising under the Social Security Act. 42 U.S.C. § 405(h).
Under SSA regulations, an individual who is dissatisfied with the Social Security Administration's initial determination must seek administrative reconsideration within 60 days. 20 C.F.R. § 404.909. An individual dissatisfied with a reconsidered determination similarly must seek an administrative hearing within 60 days. 20 C.F.R. §§ 404.930, 404.933. An individual who remains dissatisfied after an administrative hearing decision must file a timely request for Appeals Council review of the decision. 20 C.F.R. §§ 404.967-68. If the Appeals Council denies review of the hearing decision, or grants review and issues its own decision, the administrative review process is complete, and the claimant then may seek judicial review of an adverse decision. 20 C.F.R. § 404.981.
C. Analysis
Here, the Commissioner asserts a factual challenge to jurisdiction and offers evidence that plaintiff failed to exhaust his administrative remedies before the agency. The Commissioner has submitted a declaration from Christianne Voegele, the Chief of Court Case Preparation and Review Branch 1 of the Office of Appellate Operations of the Social Security Administration, Voegele Decl., ECF #42-1, at 1, and administrative records from plaintiff's official file. Id., Exs. 1-4. Because the Commissioner makes a factual challenge, Voegele's declaration and other administrative record evidence are properly before the court. Savage, 343 F.3d at 1039 n.2.
According to Voegele, plaintiff's official file reflects that he obtained a favorable decision on July 30, 2010, but the agency subsequently reviewed his disability status, determined that his disability had ended, and denied further disability payments as of June 2015. Voegele Decl. 2-3, ECF #42-1. Voegele further declares that the official file does not include any evidence that plaintiff sought reconsideration of this unfavorable decision, requested a hearing, or requested review by the Appeals Council. Id. Accordingly, Voegele's declaration establishes that plaintiff did not obtain a final decision from the agency prior to filing his claim in this court, and, therefore, failed to exhaust his administrative remedies. See 20 C.F.R. § 416.1481; Kildare, 325 F.3d at 1082; 42 U.S.C. § 405(g). Plaintiff has not "furnish[ed] affidavits or other evidence necessary to satisfy [his] burden of establishing" that he exhausted his administrative remedies. Id. Indeed, plaintiff has failed to respond at all to the Commissioner's motion to dismiss. Because plaintiff failed to exhaust administrative remedies, this court does not have jurisdiction to hear plaintiff's claim.
Plaintiff's failure to respond may be viewed as a concession of defendant's motion. See Steger v. Peters, No. 6:16-cv-02093-YY, 2018 WL 3430671, at *2 (D. Or. Jul. 16, 2018) (finding plaintiff conceded dismissal of a claim on the merits by not responding to the motion for summary judgment); Ward v. Nat'l Entm't Collectibles Ass'n, Inc., No. CV11-06358-MMM(CWx), 2012 WL 12885073, at *10 (C.D. Cal. Oct. 29, 2012) (by failing to oppose defendants' motion for summary judgment on damages claim, plaintiff abandoned right to seek such damages); Bolbol v. City of Daly City, 754 F. Supp. 2d 1095, 1115 (N.D. Cal. 2010) ("[P]laintiff fails to address this issue in her opposition brief and apparently concedes that she may not proceed on this claim. Accordingly, the court grants summary judgment in favor of defendants as to this claim").
The evidence also shows that, in November 2018, plaintiff received a favorable decision that reinstated his benefits. Voegele Decl. Ex. 4, ECF #42-1, at 16 (re-instating benefits as of November 2018). Therefore, any claim that plaintiff asserts with respect to benefits after November 2018 is moot. See Goberman v. Wertz, No. 3:14-322-SI, 2014 WL 3349677, at *3 (D. Or. Jul. 8, 2014) (holding that because the claimant, subsequent to filing the complaint, obtained a favorable decision from the agency, there was no longer a case or controversy regarding the previous unfavorable decision).
Plaintiff's claim otherwise should be dismissed without prejudice. While plaintiff failed to timely seek reconsideration, it is still possible for him to request reconsideration if he can show good cause for the late filing. See 20 C.F.R. §§ 404.909, 404.911. Otherwise stated, plaintiff could still conceivably exhaust his administrative remedies and seek review of the agency decision regarding a claim for benefits for the period of July 2018 through October 2018. Therefore, his claim for benefits for the period from July through October2018 should be dismissed without prejudice.
II. Failure to State a Claim
In addition to seeking reinstatement of his benefits, plaintiff also seeks injunctive relief as well as compensatory and punitive damages. Specifically, plaintiff requests that the court order premarital counseling for him and his fiancé; compensatory damages in the amount of $15,000 for the Commissioner's purportedly "premature cancellation" of plaintiff's disability benefits; and punitive damages in the amount of $150,000 as a "deterrent towards behavior like this in the future." Compl. 2-3, ECF #1. The Commissioner moves to dismiss these claims under FRCP 12(b)(6) for failure to state a claim.
To state a claim for relief, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" FRCP 8(a)(2). This standard "does not require 'detailed factual allegations,'" but does demand "more than an unadorned, the-defendant- unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 US 544, 555 (2007)). To survive a motion to dismiss for failure to state a claim pursuant to FRCP 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).
Court-ordered premarital counseling, compensatory damages, and punitive damages are not authorized under 42 U.S.C. 405(g). See Matlock v. Sullivan, 908 F.2d 492, 493 (9th Cir. 1990) (holding that the SSA limits judicial review to final decisions of the agency); see also Okimoto v. Soc. Sec. Admin., 2015 WL 7264827, at *3 (D. Haw. Oct. 22, 2015) (holding that Section 405(h) prohibits claims for compensatory or punitive damages arising from a denial of social security benefits) (citing Heckler v. Ringer, 466 U.S. 602, 614-15 (2013)). While a pro se pleading "must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007), "[a] pro se complaint may be dismissed with prejudice when 'it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Ismail v. Cty. of Orange, 693 F. App'x 507, 511-12 (9th Cir. 2017), cert. denied sub nom. Ismail v. Orange Cty., Cal., 138 S. Ct. 1329 (2018) (quoting Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015)). Here, it is absolutely clear that no amendment can cure the deficiencies in these claims; therefore, they should be dismissed with prejudice.
RECOMMENDATION
For the reasons discussed above, the Commissioner's motion to dismiss should be GRANTED. Plaintiff's claims for compensatory and punitive damages as well as his request for court-ordered premarital counseling should be dismissed with prejudice. His claim for benefits should be dismissed without prejudice for the period from July 2018 through October 2018, but dismissed with prejudice for any relief he seeks after his benefits were reinstated in November 2018.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, June 06, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED May 23, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge