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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael A McCoy,
Plaintiff,

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ORDER

v.

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No. CV-15-00344-PHX-DGC

Carolyn W. Colvin,
Acting Commissioner of Social Security,

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Defendant.

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Defendant moves to dismiss this action for lack of subject matter jurisdiction

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under Fed. R. Civ. P. 12(b)(1). Doc. 21. Plaintiff files a response. Doc. 22. No party

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requests oral argument. The Court will grant the motion.

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I.

Background.

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On August 17, 2010, Defendant denied Plaintiff’s claim for disability insurance

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benefits. Id. at 2. On December 9, 2011, at Plaintiff’s reconsideration hearing, an

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administrative law judge reversed and forwarded Plaintiff’s claim for processing. Id. On

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June 16, 2012, Defendant sent Plaintiff a Notice of Award informing him he was entitled

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to disability insurance benefits. Id. Upon Plaintiff’s request, Defendant conducted a

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review of Plaintiff’s benefits calculation. Id. On July 22, 2012 Plaintiff received notice

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that upon review, Defendant found the first decision’s calculation to be correct.. Id. The

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July 22, 2012 notice also informed Plaintiff that, if he disagreed with the decision, he had

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the right to request a hearing before an ALJ and he had 60 days from the date he received

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the letter to make the request. Id. No evidence suggests Plaintiff made such a request.

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Id. On February 25, 2015, Plaintiff filed this action. Doc. 1.

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II.

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Analysis.
AA Rule 12(b)(1) jurisdictional attack may be facial or factual.@ Safe Air for
AIn a facial attack, the

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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

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challenger asserts that the allegations contained in the complaint are insufficient on their

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face to invoke federal jurisdiction.

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disputes the truth of the allegations that, by themselves, would otherwise invoke federal

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jurisdiction.@

Id.

By contrast, in a factual attack, the challenger

Where, as here, Defendant factually challenges the assertion of

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jurisdiction, the court may consider evidence extrinsic to the complaint. Robinson v.

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United States, 586 F.3d 683, 685 (9th Cir. 2009).

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establishing subject matter jurisdiction by a preponderance of the evidence. Id.

Plaintiff bears the burden of

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A federal district court has jurisdiction to review a final decision of Defendant

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made after a hearing to which the plaintiff was a party. 42 U.S.C. § 405(g); 42 U.S.C. §

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1383(c)(3). No findings of fact or decision by Defendant may be reviewed except as

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provided under 42 U.S.C. § 405(g). 42 U.S.C. § 405(h). If the requirements of § 405(g)

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are not satisfied, a federal district court may have subject jurisdiction only over a

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“colorable constitutional claim” asserted by the plaintiff. Califano v. Sanders, 430 U.S.

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99, 109 (1977). Plaintiff has made no constitutional claim.

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Plaintiff has made no assertion and presented no evidence that Defendant has

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made a reviewable final decision. See Docs. 1, 22. Plaintiff has made no assertion and

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presented no evidence that he requested a hearing to challenge the determination of the

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amount of his benefits. Id. Plaintiff’s one-page response states only that “Rule 103 on

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evidence in SSA attorney letter dating July 22 2016, which I never received, did not give

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me the chance to go before a administrative law judge to question the amount of benefit

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paid to me.” Doc. 22.

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Plaintiff has failed to meet his burden of establishing subject matter jurisdiction by

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a preponderance of the evidence. Robinson, 586 F.3d 685. Accordingly, the Court will

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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.

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