Opinion
Case No: 8:13-cv-2488-T-27AEP
07-28-2014
THOMAS WOLFF, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER
BEFORE THE COURT is the Report and Recommendation of the Magistrate Judge (Dkt. 14) recommending that this Court grant Defendant's Opposed Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon which Relief Can Be Granted (Dkt. 8). The Magistrate Judge concluded that 42 U.S.C. § 405(h) does not confer subject matter jurisdiction to review the merits of a decision by the SSA to disqualify or suspend a representative such as Plaintiff, and that Plaintiff's complaint failed to raise a colorable constitutional claim which might otherwise be reviewable. This Court agrees.
A district court may accept, reject or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1). In the absence of specific objections, there is no requirement that factual findings be reviewed de novo, and the court may accept, reject or modify, in whole or in part, the findings and recommendations. § 636(b)(1)(C); Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11 th Cir. 1993). Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil 397 Fed. Appx. 554, 556 (11th Cir. 2010) (citing United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982)); Cooper-Houston v. & Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
In response to the Report and Recommendation, Plaintiff filed objections (Dkts. 15 & 16). The essence of his objections is that the hearing conducted by the Administrative Law Judge was not in accord with procedural due process. Yet, as the Magistrate Judge found, Plaintiff was afforded an opportunity to participate in the hearing but was restricted in his presentation because he failed to comply with a prehearing order. As the Magistrate Judge noted, the conduct of the hearing was within the discretion of the ALJ. 20 C.F.R. §§ 404.1765(g)(4), 416.1565(g)(4).
Plaintiff's July 28, 2014 Supplement (Dkt. 17) is untimely and has therefore not been considered.
After conducting a review of the findings, conclusions, and recommendation of the Magistrate Judge, and the objections of Plaintiff, and after conducting a de novo review of the question of subject matter jurisdiction, this Court agrees with the Magistrate Judge and adopts his recommendation. Accordingly, the Report and Recommendation (Dkt. 4) is APPROVED and ADOPTED for all purposes, including appellate review. Defendant's Opposed Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon which Relief Can Be Granted (Dkt. 8) is GRANTED. Plaintiff's Complaint (Dkt. 1) is DISMISSED with prejudice. The Clerk is directed to CLOSE the file.
DONE AND ORDERED this 28th day of July, 2014.
/s/_________
JAMES D. WHITTEMORE
United States District Judge
Copies to: Counsel of record; pro se Plaintiff