McCoy v. Social Security Administration

Filing 23

ORDER: Defendant's motion to dismiss for lack of subject matter jurisdiction (Doc. 21 ) is granted. The Clerk is directed to terminate this matter. Signed by Judge David G Campbell on 11/02/2016. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael A McCoy, Plaintiff, 10 11 ORDER v. 12 No. CV-15-00344-PHX-DGC Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 16 Defendant moves to dismiss this action for lack of subject matter jurisdiction 17 under Fed. R. Civ. P. 12(b)(1). Doc. 21. Plaintiff files a response. Doc. 22. No party 18 requests oral argument. The Court will grant the motion. 19 I. Background. 20 On August 17, 2010, Defendant denied Plaintiff’s claim for disability insurance 21 benefits. Id. at 2. On December 9, 2011, at Plaintiff’s reconsideration hearing, an 22 administrative law judge reversed and forwarded Plaintiff’s claim for processing. Id. On 23 June 16, 2012, Defendant sent Plaintiff a Notice of Award informing him he was entitled 24 to disability insurance benefits. Id. Upon Plaintiff’s request, Defendant conducted a 25 review of Plaintiff’s benefits calculation. Id. On July 22, 2012 Plaintiff received notice 26 that upon review, Defendant found the first decision’s calculation to be correct.. Id. The 27 July 22, 2012 notice also informed Plaintiff that, if he disagreed with the decision, he had 28 the right to request a hearing before an ALJ and he had 60 days from the date he received 1 the letter to make the request. Id. No evidence suggests Plaintiff made such a request. 2 Id. On February 25, 2015, Plaintiff filed this action. Doc. 1. 3 II. 4 Analysis. AA Rule 12(b)(1) jurisdictional attack may be facial or factual.@ Safe Air for AIn a facial attack, the 5 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 6 challenger asserts that the allegations contained in the complaint are insufficient on their 7 face to invoke federal jurisdiction. 8 disputes the truth of the allegations that, by themselves, would otherwise invoke federal 9 jurisdiction.@ Id. By contrast, in a factual attack, the challenger Where, as here, Defendant factually challenges the assertion of 10 jurisdiction, the court may consider evidence extrinsic to the complaint. Robinson v. 11 United States, 586 F.3d 683, 685 (9th Cir. 2009). 12 establishing subject matter jurisdiction by a preponderance of the evidence. Id. Plaintiff bears the burden of 13 A federal district court has jurisdiction to review a final decision of Defendant 14 made after a hearing to which the plaintiff was a party. 42 U.S.C. § 405(g); 42 U.S.C. § 15 1383(c)(3). No findings of fact or decision by Defendant may be reviewed except as 16 provided under 42 U.S.C. § 405(g). 42 U.S.C. § 405(h). If the requirements of § 405(g) 17 are not satisfied, a federal district court may have subject jurisdiction only over a 18 “colorable constitutional claim” asserted by the plaintiff. Califano v. Sanders, 430 U.S. 19 99, 109 (1977). Plaintiff has made no constitutional claim. 20 Plaintiff has made no assertion and presented no evidence that Defendant has 21 made a reviewable final decision. See Docs. 1, 22. Plaintiff has made no assertion and 22 presented no evidence that he requested a hearing to challenge the determination of the 23 amount of his benefits. Id. Plaintiff’s one-page response states only that “Rule 103 on 24 evidence in SSA attorney letter dating July 22 2016, which I never received, did not give 25 me the chance to go before a administrative law judge to question the amount of benefit 26 paid to me.” Doc. 22. 27 Plaintiff has failed to meet his burden of establishing subject matter jurisdiction by 28 a preponderance of the evidence. Robinson, 586 F.3d 685. Accordingly, the Court will -2- 1 2 3 4 grant Defendant’s motion to dismiss. IT IS ORDERED: Defendant’s motion to dismiss for lack of subject matter jurisdiction (Doc. 21) is granted. The Clerk is directed to terminate this matter. Dated this 2nd day of November, 2016. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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