Free Proposed Order - District Court of California - California

Case 3:08-cv-02349-PJH

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Filed 05/14/2008

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division JENNIFER S WANG (CSBN 233155) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 [email protected] Attorneys for Federal Defendant

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[PROPOSED] ORDER GRANTING DEF.'S MOT. TO DISMISS C 08-2349 EMC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MICHAEL A. LOGWOOD, Plaintiff, v. PETER SPENCER, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 08-2349 EMC [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Date: July 16, 2008 Time: 10:30 a.m. Place: Courtroom C, 15th Floor

This action having come regularly on for hearing before the Court on the motion of defendant to dismiss pursuant to F.R.C.P. 12(b)(1), and the respective parties having been afforded an opportunity to be heard, the Court having considered the respective pleadings and the arguments thereon, and the entire matter having been duly submitted after the Court was fully advised thereon,

Case 3:08-cv-02349-PJH

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Filed 05/14/2008

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IT IS HEREBY ORDERED that the defendant's motion to dismiss is GRANTED based on the following reasons: 1. The Social Security Act ("the Act") provides the exclusive remedy for claimants who challenge underpayment of Social Security benefits. 42 U.S.C. §§ 405(g)-(h). Because plaintiff has filed to exhaust his administrative remedies under the Act, this Court lacks jurisdiction over his claim. 2. Plaintiff has failed to show that this case merits judicial waiver of the Act's exhaustion requirement. The Act's exhaustion requirement is waiveable only if the plaintiff has satisfied a three-part test: the claim must be (1) collateral to a substantive claim of entitlement; (2) colorable in its showing that refusal of the relief sought will cause an injury which retroactive payments cannot remedy; and (3) one whose resolution would not serve the purposes of exhaustion (futility). At the very least, plaintiff's claim does not meet the first and

13 third requirements of the three-part test for assessing whether a waiver is appropriate. 14 Plaintiff's claim is simply a request for payment of benefits. Consequently, Plaintiff's claims 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING DEF.'S MOT. TO DISMISS 2 C 08-2349 EMC

are insufficient to establish the first requirement of collaterality. Also, nothing in plaintiff's allegations suggests that resolution of his claims through the administrative process would be futile. 3. The court does not have mandamus jurisdiction over plaintiff's claim because plaintiff's claim is neither clear nor certain, and because plaintiff has not yet exhausted all his avenues for relief.

Dated: __________________

____________________________ EDWARD M. CHEN UNITED STATES MAGISTRATE JUDGE