United States District Court, N.D. Texas, Dallas Division
JULIAN G. DEMEDEIROS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
D. STICKNEY UNITED STATES MAGISTRATE JUDGE.
case has been referred to United States Magistrate Judge Paul
D. Stickney. Before the Court is Motion to Dismiss
Plaintiff's Complaint [ECF No. 7] (“Motion to
Dismiss”) filed by Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration (the
“Commissioner”) on May 12, 2017. Plaintiff Julian
G. deMedeiros (“Plaintiff”) failed to timely file
a response. Therefore, on June 9, 2017, the undersigned
recommended that the District Court grant the
Commissioner's Motion to Dismiss. See Findings,
Conclusions, & Recommendation, ECF No. 8. On June 12,
2017, Plaintiff filed his Motion for 30-Day Extension of Time
to File Objections to Defendant-Respondent's Motion to
Dismiss [ECF No. 10]. The undersigned granted Plaintiff's
motion, vacated the June 9, 2017 Findings, Conclusions, and
Recommendation, and ordered Plaintiff to file his response to
the Motion to Dismiss by July 12, 2017. See
Electronic Order, ECF Nos. 11 & 12. However, as of the
date of this Findings, Conclusions, and Recommendation, which
is over five months beyond the July 12, 2017 due date for
Plaintiff's response to the Commissioner's Motion to
Dismiss, Plaintiff still has not filed the response. In
consideration of the foregoing, the undersigned recommends
that the District Court GRANT the
Commissioner's Motion to Dismiss [ECF No. 7].
January 23, 2017, Plaintiff Julian G. deMedeiros
(“Plaintiff”) filed this lawsuit alleging that
the Commissioner wrongfully suspended his benefits on the
ground that he was not lawfully present in the United State,
even though he is a permanent resident of the United States.
Compl. 5-6, ECF No. 3. Plaintiff attaches to his Complaint a
copy of his green card. Ex. 1, ECF No. 3 at 11. Plaintiff
states that he “has been diagnosed with the terminal
disease of multiple myeloma metastasized cancer of the blood
and bones all throughout his body; in the past two
years[.]” Compl. 2, ECF No. 3. Plaintiff also states
that he “has undergone heavy chemotherapy treatment
followed by a stem cell transplant and major back surgery,
and also [was] hospitalized for a pulmonary embolism and
Sepsis[.]” Compl. 2, ECF No. 3. Plaintiff further
states that he “is in need of continuing daily
chemotherapy treatment (Revlimid), monthly infusions of
Zometa (zoledronic acid), and other special medications for
the rest of his life[.]” Compl. 2, ECF No. 3.
Therefore, Plaintiff states that “[a]ny interruption of
such much needed continuing chemotherapy treatment,
infusions, blood testing and monitoring, and deprivation of
other critical medications even for short periods of time,
will cause [his] condition to rapidly deteriorate and cause
[his] early death, necessitating the Court's immediate
intervention.” Compl. 2, ECF No. 3.
courts are courts of limited jurisdiction; therefore, they
have the power to adjudicate claims only when jurisdiction is
conferred by statute or the Constitution.” Brown v.
Peterson, No. 7:03-CV-205-R, 2006 WL 349805, at *4 (N.D.
Tex. Feb. 3, 2006) (citing Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994); Stockman v. Fed.
Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998)).
“A motion to dismiss filed under Rule 12(b)(1)
challenges a federal court's subject matter
jurisdiction.” Id. “A case is properly
dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to
adjudicate the case.” Id. (citing Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998)). “The party
wishing to invoke the court's jurisdiction bears the
burden of proving that subject matter jurisdiction
exists.” Id. (citing Rodriguez v. Tex.
Comm'n on the Arts, 992 F.Supp. 876, 879 (N.D. Tex.
1998)). “When the court dismisses because the plaintiff
lacks subject matter jurisdiction, that dismissal ‘is
not a determination of the merits and does not prevent the
plaintiff from pursuing a claim in a court that does have
proper jurisdiction.'” Hamlett v.
Ashcroft, No. 3:03-CV-2202-M (BH), 2004 WL 813184, at *2
(N.D. Tex. Apr. 14, 2004) (quoting Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001)).
ruling on a motion to dismiss for lack of subject matter
jurisdiction, a court may evaluate the complaint alone, the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the courts resolution of disputed facts.”
Peterson, 2006 WL 349805, at *4 (citing Den
Norske Stats Oljeselskap As v. HeereMac V.O.F., 241 F.3d
420, 424 (5th Cir. 2001)). “There are two types of
challenges to a court's subject matter jurisdiction under
Rule 12(b)(1): ‘facial' attacks and
‘factual' attacks.” Id. (citing
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981); Brooks v. Snow, 313 F.Supp.2d 654, 658 (S.D.
Tex. 2004)). “A facial attack, which consists of a Rule
12(b)(1) motion unaccompanied by supporting evidence,
challenges jurisdiction based solely on the pleadings.”
Id. (citing Weinberger, 644 F.2d at 523).
“When ruling on a facial attack, the court must presume
that factual allegations in the complaint are true and
determine whether they establish subject matter
jurisdiction.” Id. “By contrast, a Rule
12(b)(1) motion presents a factual attack when the motion is
accompanied by supporting evidence that contradicts the
jurisdictional allegations in the complaint.”
Id. “In a factual attack, the plaintiff bears
the burden of proving by a preponderance of the evidence that
the court has subject matter jurisdiction.”
Motion to Dismiss, the Commissioner asks the Court to dismiss
this case because Plaintiff has not received a final decision
from the Commissioner as necessary to obtain judicial review
by a district court under Title 42, United States Code,
Section 405(g) (“Section 405(g)”). Mot. 1, ECF
No. 7. The Commissioner submits the declaration of Cristina
Prelle, Chief of Court Case Preparation and Review Branch 4
of the Office of Appellate Operations, Office of Disability
Adjudication and Review, Social Security Administration.
Decl., ECF No. 7-1 at 2-4. Ms. Prelle states that
Plaintiff's May 6, 2016 request for review of the
Administrative Law Judge's March 2, 2016 unfavorable
decision is pending with the Appeals Council. Decl., ECF No.
7-1 at 4. Therefore, the Commissioner asks that the Court
dismiss Plaintiff's case because Plaintiff failed to
exhaust his administrative remedies. Mot. 1, ECF No. 7.
405(g) provides that “[a]ny individual, after any final
decision of the Commissioner of Social Security . . . may
obtain a review of such decision by a civil action . . . in
the district court of the United States[.]” 42 U.S.C.
§ 405(g). Furthermore, Section 405(h) states that:
No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal or
governmental agency except as herein provided. No. action
against the United States, the Commissioner of Social
Security, or any officer or employee thereof shall be brought
under section 1331 or 1346 of Title 28 to recover on any
claim arising under this subchapter.
42 U.S.C. § 405(h). The Social Security Act “does
not define ‘final decision, '” but leaves
“it to the SSA to give meaning to that term through
regulations.” Sims v. Apfel, 530 U.S. 103, 106
(2000) (citing 42 U.S.C. § 405(a); Weinberger v.
Salfi, 422 U.S. 749, 766 (1975)). “SSA regulations
provide that, if the Appeals Council grants review of a
claim, then the decision that the Council issues is the
Commissioner's final decision.” Id.
However, if “the Council denies the request for review,
the ALJ's opinion becomes the final decision.”
Id. (citing 20 C.F.R. §§
404.900(a)(4)-(5), 404.955, 404.981, 422.210(a)). If the
“claimant fails to request review from the Council,
there is no final decision and as a result, no judicial
review in most cases.” Id. (citing 20 C.F.R.
§ 404.900(b); Bowen v. City of New York, 476
U.S. 467, 482-83 (1986)). “In administrative-law
parlance, such a claimant may not obtain judicial review
because he has failed to exhaust administrative
remedies.” Id. (citing Salfi, 422
U.S. at 765-66).
may not be required where a plaintiff seeks relief in federal
court for a colorable constitutional claim. Walker v.
Astrue, No. 7:11-CV-22-O (BH), 2011 WL 3348059, at *3
n.1 (N.D. Tex. Jul. 13, 2011) (citing Califano v.
Sanders, 430 U.S. 99, 108 (1977); Robertson v.
Bowen, 803 F.3d 808, 810 (5th Cir. 1986)).
“[R]ecognizing the potential frustration of the
congressional purpose of § 405(g) that could result from
claimants being allowed virtually unending access to judicial
review . . . the Fifth Circuit Court of Appeals concluded
that judicial review . . . is only allowed when a plaintiff
can prove a ‘colorable constitutional
claim.'” Valdez v. Astrue, No.
3:11-CV-883-K (BK), 2011 WL 5525751, at *2 (N.D. Tex. Oct.
17, 2011) (citing Robertson, 803 F.2d at 810).
“Proof that a colorable constitutional claim exists
must be based on more than mere conclusional allegations of
due process violations.” Id. “To that
end, Plaintiff must do more than simply allege that her due
process rights were violated.” Id. (citing
Robertson, 803 F.2d at 810; Koerpel v.
Heckler, 797 F.2d 858, 863 (10th Cir. 1986)).
if Plaintiff's constitutional claim arises under the
Social Security Act, Plaintiff is still required to comply
with the requirements in Section 405(h). See Edwards v.
Burwell, No. 3:14-CV-3124-B, 2015 WL 4131616, at *4
(N.D. Tex. Jul. 8, 2015), aff'd, 657 F.
App'x 242 (5th Cir. 2016), cert. denied, 137
S.Ct. 639 (2017) (“Although Plaintiff argues that this
action is focused on his constitutional claim . . . which he
states has no connection to the policy or procedure guiding
the review of [the] claims, the Supreme Court has established
that the constitutional nature of a claim does not exempt a
plaintiff from the requirements set forth in 42 U.S.C. §
405(h).” (citing Salfi, 422 U.S. at 760-61;
Physican Hosps. of Am. v. Sebelius, 691 F.3d 649,
656 (5th Cir. 2012)); Heckler v. Ringer, 466 U.S.
602, 615 (1984) (“Thus, to be true to the language of
the statute, the inquiry in determining whether 405(h) bars
federal-question jurisdiction must be whether the claim
‘arises under' the Act.”). The United States
Supreme Court “established that a claim arises under
the  Act if the Act ‘provides both the standing and
the substantive basis' for the asserted action.”
Burwell, 2015 WL 4131616, at *4 (citing
Salfi, 422 U.S. at 760-61). “A claim also
arises under the Act if it is ‘inextricably
intertwined' with a claim for  benefits and would
require the court to review the  claim determinations in
resolving the matter.” Id. (citing Marsaw
v. Thompson, 133 F. App'x 946, 948 (5th Cir. ...