Free Motion to Dismiss/Lack of Jurisdiction - District Court of California - California

Case 4:08-cv-02094-SBA

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JOSEPH P. RUSSONIELLO, CSBN 44332 United States Attorney LUCILLE GONZALES MEIS, SBN CO 15153 Regional Chief Counsel, Region IX ELIZABETH FIRER, SBN WI 1034148 Special Assistant United States Attorney 333 Market Street, Suite 1500 San Francisco, California 94105 Telephone: (415) 977-8937 Facsimile: (415) 744-0134 Email: [email protected] Attorneys for Defendant

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of ) Social Security, ) ) Defendant. ) ___________________________________) JOHN B. PIROG, CIVIL NO. C-08-2094 WHA DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS UNDER FED.R.CIV.P. 12(b)(1) FOR LACK OF JURISDICTION

I. INTRODUCTION 18 The above-captioned Social Security action is covered by Civil L.R. 16-5, and as such, it is 19 submitted on the papers without oral argument. 20 II. ISSUE 21 22 23 24 25 26 27 28 complaint Plaintiff filed in federal court on the same day he filed the complaint in the instant case; the Whether this Court should dismiss Plaintiff's claim under Fed.R.Civ.P 12(b)(1), lack of jurisdiction, because Plaintiff is not contesting a final Agency action subject to judicial review. III. STATEMENT OF THE CASE In June 2000, Plaintiff protectively filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under titles II and XVI of the Social Security Act (Declaration of Dennis V. Ford with attached Exhibits 1-3, Declaration at 3, ¶ (5)(a)) (hereinafter "Declaration" or "Exhibit _"). The Commissioner notes that the Declaration was prepared in conjunction with another

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other case is numbered C-08-2093 EDL. The Commissioner asserts that, since there was only one administrative hearing in this case, the information contained in the Declaration and the attached Exhibits are applicable to this matter as well as case number C-08-2093. The Commissioner has attached the motion to dismiss filed in case number C-08-2093 as Exhibit 4. Plaintiffs DIB and SSI applications were denied initially and upon reconsideration in June and August 2000 and no further appeal was taken on either application (Declaration at 3, ¶ (5)(a). On November 19, 2003, Plaintiff filed subsequent applications for DIB and SSI (Declaration at 34, ¶ (5)(b)). Plaintiff alleged disability since December 20, 1999 (Exhibit 1 at 7-8). Plaintiff's subsequent applications were ultimately granted by an Administrative Law Judge (ALJ) in an order issued September 23, 2005 (Declaration at 4, ¶ (5)(b); Exhibit 1 at 1-3, 7-12). In his order, the ALJ reopened Plaintiff's prior DIB application, but he did not reopen Plaintiff's prior SSI claim (Declaration at 4, ¶ (5)(b); Exhibit 1 at 7-8, 12; Exhibit 3 at 2). The notice of decision included in the ALJ's order advised Plaintiff that, if he disagreed with the decision, he must file a request for review within 60 days of the date he received the decision (Declaration at 4, ¶ (5)(b); Exhibit 1 at 1-2). Also included in the ALJ's notice and decision was the fee agreement between Plaintiff and his attorney Richard A. Whitaker, which Plaintiff singed in June 2008 (Exhibit 1 at 5-6). Plaintiff did not file a request for Appeals Council review of the ALJ's decision until December 13, 2005 (Declaration at 4, ¶ (5)(c); Exhibit 2). On February 26, 2008, the Appeals Council dismissed Plaintiff's request for review (Declaration at 4, ¶ (5)d); Exhibit 3). In its notice of dismissal, the Appeals Council advised Plaintiff that its action was "not subject to further review" (Exhibit 3 at 1). The Appeals Council also explained that Plaintiff's request for review was "actually a request for reopening of a prior [SSI] denial" (Exhibit 3 at 2; see also Exhibit 2). The Appeals Council also asserted that Plaintiff "does not have the right to appeal our denial of his request for reopening" (Exhibit 3 at 3). On April 22, 2008, Plaintiff filed the instant action in federal district court alleging he was seeking review of "Atty. Fee Readjustment" (Complaint at 2). On the same day, Plaintiff filed another complaint in federal court, case number C-08-2093 EDL, STEEN, MXSJ C 07-01395 SC

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alleging he was seeking review of a claim for "SSI (March 2000 to Nov 19, 03") (Declaration at 4, ¶ (5)(e)); Exhibit 5). IV. ARGUMENT Because Plaintiff has not received a final, agency decision subject to judicial review, his complaint must be dismissed under Fed.R.Civ.P 12(b)1). Plaintiff asserts that he is seeking judicial review for a fee adjustment, but there is no evidence Plaintiff or his attorney have been granted the type of fees that are subject to judicial oversight. Fees awarded for work performed at the administrative level are not final agency actions subject to judicial review and there is no evidence Plaintiff or his attorney have received any other type of fees. It is well settled that "[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 the suit.'" Hercules Inc. v. United States, 516 U.S. 417, 422 (1996) (quoting United States v. Testan, 424 U.S. 392, 399 (1976), and United States v. Sherwood, 312 U.S. 584, 586-87 (1941)). Conditions on the waiver of sovereign immunity must be strictly construed in favor of immunity. Lane v. Pena, 518 U.S. 187, 192 (1996); Bowen v. City of New York, 476 U.S. 467, 479 (1986). Judicial review of the final decisions on claims arising under Titles II and XVI of the Social Security Act is provided for and limited by sections 205(g) and (h): (g) Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. ***

21 22 23 24 25 26 27 28 (h) The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. 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 many claims arising under this title. 42 U.S.C. §§ 405(g) and (h) (emphasis added); see also 42 U.S.C. § 1383(c)(3) (applying Title II review process to Title XVI). It is clear from these provisions of the Social Security Act that the only civil action permitted on any claim arising under Titles II and XVI is an action to review the "final decision of the [Commissioner] made after a hearing." Califano v. Sanders, 430 U.S. 99, 108 (1977). Under the 3

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Act, the authority to determine what constitutes a "final decision" rests with the Commissioner since he has ultimate responsibility for the integrity of the administrative program. Mathews v. Eldridge, 424 U.S. 319, 330 (1976). The Act and the Commissioner's implementing regulations provide the procedural framework for seeking administrative and judicial review of disability claims. Congress has directed that the determination whether an individual is under a disability shall be made in the first instance by a State agency, pursuant to regulations, guidelines, and performance standards established by the Commissioner. 42 U.S.C. §§ 421(a), 1383b(a). If the State agency determines that the claimant is not disabled, he may request a de novo reconsideration by the State agency. The claimant is informed that he must request reconsideration within 60 days of his receipt of the adverse initial determination, 20 C.F.R. §§ 404.904, 404.909(a)(1), 416.1404, 416.1409(a)(1), and that determination becomes binding upon him if he does not do so. 20 C.F.R. §§ 404.905, 416.1405. The date of receipt is presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary. See 20 C.F.R. §§ 404.901, 416.1401, 422.210(c). If the claimant is dissatisfied with the State agency's decision after reconsideration, he "shall be entitled to a hearing thereon by the Commissioner of Social Security." 42 U.S.C. §§ 421(d), 1383(c)(1). The Social Security Act requires, and the claimant is notified, that he must request a hearing before an ALJ within 60 days of his receipt of the State agency's reconsideration decision. 42 U.S.C. §§ 405(b)(1), 1381(c)(1). The latter decision is binding upon the claimant if he does not timely request an ALJ hearing. 20 C.F.R. §§ 404.920, 404.921(a), 404.933(b), 416.1420, 416.1421(a), 416.1433(b). If the ALJ's decision is adverse to the claimant, he then may seek review by the Appeals Council. If a claimant does not request such review within 60 days, the adverse ALJ decision is binding. 20 C.F.R. §§ 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468(a)(1). The claimant is informed that he must seek Appeals Council review within 60 days. It is only after the Appeals Council has denied review, or has granted review and issued its own decision, that the Commissioner has rendered a "final decision" on the claim for benefits, which then is subject to judicial review pursuant to 42 U.S.C. §§ 405(g),

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1383(c)(3). If the Appeals Council dismisses a request for review as untimely, that dismissal is "binding and not subject to further review." 20 C.F.R. §§ 404.972, 416.1472.

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The Commissioner has expressly set forth administrative actions that are not initial determinations subject to the administrative process outlined above. Consequently, "they are not subject to judicial review." 20 C.F.R. §§ 404.903, 416.1403. Notably, "[d]etermining the fee that may be charged or received by a person who has represented you in connection with a proceeding before [the Agency]" is not an administrative action subject to judicial review, 20 C.F.R. §§ 404.903(f), 416.1403(f). Plaintiff asserts that he wants the Court to review a fee request (Complaint at 2). In disability claims, the only type of fees a court may review are fees for work performed before it. These types of fees are available under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 or under sections 206(b) and 1683(d)(2)(A) of the Social Security Act codified at 42 U.S.C. §§ 406(b) and 1383(d)(2)(A). Under either of these statutory schemes, a fee petition must be filed in district court. As set forth above, fees paid out for administrative work performed before the Agency is an administrative action that is not subject to judicial review. 20 C.F.R. §§ 404.903(f), 416.1403(f). These are fees paid out under sections 206(a) and 1631(d)(2)(A) of the Social Security Act, codified at 42 U.S.C. § 406(a) and 1383(d)(2)(A). Consequently, no petition for fees under this scheme need be filed in federal court. There has been no fee petition under the EAJA or under 42 U.S.C. §§ 406(b) or 1383(d)(2)(A). As fees are the only matter for review Plaintiff has set forth in his complaint, his complaint must be dismissed for lack of jurisdiction. To the extent Plaintiff's complaint might be construed as a request for judicial review of the ALJ's decision, the Commissioner notes that Plaintiff appeared to have sought review of that decision in case number C-08-2093 EDL, not the instant case. The Commissioner refers the Court to Exhibits 4 and 5 for an explanation as to why Plaintiff's failure to timely seek Appeals Council review signifies that he has not received a final Agency action and why he is precluded from judicial review on that front as well.

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V. CONCLUSION Because Plaintiff's complaint refers only to a matter upon which judicial review is precluded, the Commissioner respectfully requests that his motion to dismiss be granted. Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney /s/Elizabeth Firer ELIZABETH FIRER Special Assistant United States Attorney

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