United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
case has been referred to the United States Magistrate Judge
for pretrial management under 28 U.S.C. § 636(b). On
October 30, 2017, Plaintiff Cyndi Sero King, proceeding
pro se, filed this social security appeal alleging
that a portion of her social security benefits has been
wrongfully withheld. Compl. 1-4 [ECF No. 3]. Before the Court
is Defendant Nancy A. Berryhill, Deputy Commissioner for
Operations of the Social Security Administration's Motion
to Dismiss [ECF No. 13], filed on January 19, 2018. Plaintiff
failed to file a response, and the time to do so has passed.
For the reasons discussed herein, the District Court should
GRANT the Motion to Dismiss.
Motion to Dismiss, the Deputy Commissioner asks the Court to
dismiss this case, because Plaintiff has not received the
final decision necessary to obtain judicial review by a
district court under 42 U.S.C. § 405(g). See
Mot. 1. The Deputy 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. See Prelle Decl. 1 [ECF No. 13-1].
Ms. Prelle states in her declaration the following:
(a) Plaintiff filed a claim for Title II disability benefits
on March 30, 2009, and on May 11, 2009, the agency determined
that Plaintiff was disabled since December 31, 2007;
(b) Plaintiff was sent a notice dated September 6, 2017,
which explained that her social security check would be
reduced, because the state of Texas will not pay
Plaintiff's Medicare Part B premiums after July of 2017.
This notice advised Plaintiff of her right to appeal within
60 days, but there is no record of an appeal filed by
(c) Plaintiff was sent a second notice dated September 27,
2017, which explained that her payments have changed for the
period beginning in September of 2017. This notice advised
Plaintiff of her right to appeal within 60 days, but there is
no record of an appeal filed by Plaintiff.
Prelle Decl. 2-3. The September 6, 2017, and September 27,
2017, notices are attached to Plaintiff's Complaint.
See Compl. [ECF No. 3 at 14-15 & 23-24]. In
consideration of the foregoing, the Deputy Commissioner asks
the Court to dismiss this case, because the Court lacks
subject matter jurisdiction due to Plaintiff's failure to
exhaust her administrative remedies. See Mot. 1
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, 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.”
Peterson, 2006 WL 349805, at *4. Therefore, a
“case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.”
Peterson, 2006 WL 349805, at *4 (citing Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998)).
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.” Peterson, 2006
WL 349805, at *4 (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.” Peterson, 2006 WL 349805, at
*4 (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.”
Peterson, 2006 WL 349805, at *4 (citing
Weinberger, 644 F.2d at 523). “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.”
Peterson, 2006 WL 349805, at *4 (citing
Weinberger, 644 F.2d at 523).
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.” Apfel, 530
U.S. at 106. 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.” Apfel, 530 U.S. at 106
(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.” Apfel, 530 U.S. at
106 (citing Salfi, 422 U.S. at 765-66).
argued by the Deputy Commissioner, the record demonstrates
that the Court lacks subject matter jurisdiction in this
case, because Plaintiff failed to obtain a final decision by
filing an administrative appeal. Furthermore, Plaintiff
failed to file a response to the Deputy Commissioner's
motion to dismiss and satisfy her burden on the issue of
jurisdiction. See Peterson, 2006 WL 349805, at *4
(“The party wishing to invoke the court's
jurisdiction bears the burden of proving that subject matter
jurisdiction exists.” (citing Rodriguez v. Tex.
Comm'n on the Arts, 992 F.Supp. 876, 879 (N.D. Tex.
1998))). Plaintiff's pro se status does not
excuse her failure to meet the threshold requirement to show
jurisdiction is proper. Birl v. Estelle, 660 F.2d
592, 593 (5th Cir. 1981) (“The right of
self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive law. . . .
Rather, such a litigant acquiesces in and subjects himself to
the established rules of practice and procedure.”
(citing Faretta v. California,422 U.S. 806, 834
n.46 (1975); Larkin v. United Ass'n of Plumbers &
Pipefitters,338 F.2d 335, 336 (1st Cir. 1964);
United States v. Fowler,605 F.2d 181, 183 (5th Cir.
1979))). Therefore, this case should be dismissed without
prejudice for lack of subject matter jurisdiction. See
Hamlett v. Ashcroft, 2004 WL 813184, at *2 ...