Bell v. Commissioner of Social Security
Filing
24
ORDER granting 14 Motion to Dismiss for Lack of Jurisdiction signed by Magistrate Judge Gregory G. Hollows on 10/20/11; However, the case will not be ordered dismissed until the Commissioner files proof in this court that he has sent the promised underpayment to plaintiff. The Commissioner shall file such proof within 90 days of the filed date of this order. (Matson, R)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
GREGORY BELL,
11
Plaintiff,
12
13
vs.
No. CIV. S-10-2529 GGH
MICHAEL J. ASTRUE,
14
Defendant.
15
ORDER
/
16
Defendant seeks dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
17
subject matter jurisdiction based on plaintiff’s having brought a claim for relief under a class action
18
settlement in the Northern District of California. The Commissioner also seeks dismissal of the
19
complaint based on mootness and lack of exhaustion. Plaintiff, proceeding in pro se, has filed an
20
opposition. The matter was set for hearing on October 6, 2011; however, plaintiff did not appear as
21
the record reflects that he had his notice of the hearing returned as undeliverable. Geralyn Gulseth
22
appeared telephonically for defendant. The parties have consented to the jurisdiction of the
23
undersigned pursuant to 28 U.S.C. § 636(c).
24
Having reviewed the papers in support of and in opposition to the motion, the court now
25
issues the following order.
26
\\\\
1
1
BACKGROUND
On September 17, 2010, plaintiff initiated this action by filing a “writ of mandate.”1
2
3
Plaintiff, an SSI recipient, alleges that his situation is similar to a class action settlement in the
4
Northern District of California, Martinez v. Astrue, Civ.S. 08-4735 CW, which was settled on
5
September 24, 2009. (Def.’s Mot., Ex. 3.) That case addressed a “fugitive felon” policy of “denying or
6
suspending benefits to persons on the basis of an outstanding felony arrest warrant...” (Id., Ex. 1.) The
7
complaint is very confusing but appears to allege that plaintiff is a former felon who had a warrant
8
issued against him by the State of Michigan in 1987, which was not dismissed until July 1, 2005, some
9
18 years later. (Compl. ¶ 7.) Plaintiff alleges that the SSA discontinued his benefits in May, 2005
10
based on the warrant. (Pl.’s Opp. at 2.) Plaintiff claims that despite the dismissal of the warrant, he
11
was assessed an overpayment from 2003 through 2005, in the amount of $20,021.34. (Id. at 3.) In
12
addition to collecting on the overpayment which to date amounts to $5,460, plaintiff claims that the
13
SSA took his entire monthly allotment from May, 2005 through December, 2005, which totals
14
approximately $5,000 to $6,000.
15
The Commissioner submits the following grounds for dismissal: that any claim relating to
16
the Martinez settlement must be adjudicated in the Northern District as the proper forum; that the relief
17
plaintiff seeks has been provided pursuant to the Martinez settlement and therefore these claims are
18
moot; and to the extent any claims are made outside of the Martinez settlement, plaintiff has not
19
exhausted his administrative remedies. Defendant filed a supplemental statement which modifies its
20
position, as will be addressed infra.
21
DISCUSSION
22
I. LEGAL STANDARD FOR MOTION TO DISMISS
23
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears
24
the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv.,
25
1
26
Plaintiff’s filing of September 9, 2010, also entitled “writ of mandate,” is essentially a copy of
the original filing, less attachments.
2
1
52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730,
2
733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which
3
it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
4
First, if the motion attacks the complaint on its face, often referred to as a “facial attack,”
5
the court considers the complaint’s allegations to be true, and plaintiff enjoys “safeguards akin to those
6
applied when a Rule 12(b)(6) motion is made.” Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal.
7
1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has
8
either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28
9
U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question
10
jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the
11
United States Constitution, (2) allege a “case or controversy” within the meaning of Article III, § 2, or
12
(3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7
13
L. Ed. 2d 663 (1962).
14
Second, if the motion makes a “factual attack” on subject matter jurisdiction, often referred
15
to as a “speaking motion,” the court does not presume the factual allegations of the complaint to be
16
true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional
17
facts underlying the complaint. “Faced with a factual attack on subject matter jurisdiction, the trial
18
court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to
19
plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from
20
evaluating for itself the merits of jurisdictional claims.” Id. (quotations and citation omitted). The
21
court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v.
22
United States, 850 F.2d 558, 560 (9th Cir. 1988).2
23
24
25
26
2
If the jurisdictional issue is intertwined with the merits of the case, the trial court cannot
determine the jurisdictional issue until such facts are appropriately resolved. See Roberts v.
Corrothers, 812 F.2d 1173, 1177-78 (9th Cir.1987); see also Trentacosta v. Frontier Pac. Aircraft
Indus., 8l3 F.2d 1553, 1558 (9th Cir. 1987) (summary judgment standard applied if motion determines
facts where jurisdictional issue and merits are intertwined).
3
1
“[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not
2
restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony,
3
to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. U.S., 850 F.2d 558,
4
560 (9th Cir. 1988). The burden of proof on a Rule 12(b)(1) motion is on the party asserting
5
jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 445, 62 S.Ct. 673, 675 (1942); Thornhill Publishing
6
Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Thus, plaintiff has the
7
burden of proof in connection with the instant motion.
8
9
10
II. ANALYSIS
A. Martinez Settlement
Plaintiff in part claims that the SSA discontinued payment of benefits to him in May, 2005
11
based on a warrant posted in 1987, that was not dismissed until July, 2005, and kept his monthly
12
benefits from May, 2005 through December, 2005.
13
The Martinez Settlement Agreement defines “Pre-2007 Class members” as all Class
14
Members for whom SSA made an initial suspension or initial denial based on an outstanding felony
15
arrest warrant ... on or after January 1, 2000, but before January 1, 2007, and who did not obtain an
16
administrative appeal denial on or after January 1, 2007; or who did not have a pending administrative
17
claim on August 11, 2008 appealing such a suspension or denial.” (Def.’s Mot., Ex.1, Stipulation of
18
Settlement, at 4.)
19
According to SSA records, plaintiff was entitled to relief as a pre-2007 class member, and
20
would have been sent a notice regarding relief under the Martinez Settlement in September, 2010.
21
(Def.’s Mot., Baker Decl., ¶ 5.) In April, 2011, the SSA states that it removed the remainder of an
22
outstanding overpayment in the amount of $20,021.34 from plaintiff’s record. (Id., ¶ 6.) Just prior to
23
the hearing, however, the SSA submitted a statement indicating that upon further research, it has
24
determined that plaintiff was in fact not a Martinez class member but is eligible for mandatory good
25
cause relief under the SSA’s policy which entitles him to additional relief in the form of an
26
underpayment in the amount of $4,439.66. (Baker Decl., ¶¶ 8,9, Def.’s Stmt., filed October 5, 2011.)
4
1
According to the SSA, plaintiff is entitled to greater relief than permitted by the Martinez
2
Settlement because he has established by his evidence attached to the complaint that the State of
3
Michigan dismissed the charges underlying the warrant against him which had been used to suspend
4
his SSI payments from May, 2003 to May, 2005. See 42 U.S.C. § 1382(e)(4)(B) & (C). At the
5
hearing, the SSA represented that it was preparing to return the aforementioned sum to him.
6
Based on this information, and the fact that plaintiff failed to appear at the hearing to
7
counter it, plaintiff is not subject to the Martinez Settlement and therefore defendant’s argument that he
8
has raised this issue in the wrong forum or that it is moot based on the Martinez Settlement, is
9
considered withdrawn. To the extent that plaintiff is owed money which the SSA indicates it will
10
refund him, a claim based on the SSA’s failure to return the money is not yet ripe as the SSA needs
11
time to correct its records and issue a refund.
12
B. Exhaustion of Claims Outside of Mandatory Good Cause Relief
13
Defendant’s other ground for dismissal is that plaintiff has not exhausted the remainder of
14
his claims. Defendant construes the difficult to discern complaint to allege “that [plaintiff] was never
15
subject to the fugitive felon policies that lead to the overpayment assessment.” As it has now been
16
determined that plaintiff was not subject to the Martinez Settlement, but was subject to the mandatory
17
good cause policy based on dismissal of the charges against him in Michigan, such a claim is moot.
18
Nevertheless, the claim that the SSA is continuing to deduct 10% from plaintiff’s monthly
19
benefits may or may not be a separate claim. If it is a separate claim, it is not exhausted. The
20
Commissioner is correct in that the Social Security Act provides only for judicial review of final
21
decisions of the Commissioner of Social Security. 42. U.S.C. § 405(g). Section 405(g) requires a final
22
judgment from the Secretary before seeking judicial review. The Commissioner has promulgated
23
regulations that define a “final decision.” Under these regulations, a claimant must follow a set
24
procedure: (1) an initial decision in the state agency; (2) a request for reconsideration thereof; and (3)
25
a request for a hearing before an Administrative Law Judge (“ALJ”) for the Social Security
26
Administration. 20 C.F.R. §§ 404.933, 416.1433. Regardless of whether the ALJ grants the hearing,
5
1
the claimant must take a fourth step and appeal the ALJ’s decision to the Appeals Council. A “final
2
decision” of the Secretary results only if the Appeals Council grants the review and renders a decision
3
in the case, or if the claimant makes a timely demand for review that is denied. 20 C.F.R. §§ 404.981,
4
416.1481; Heckler v. Day, 467 U.S. 104, 106-7 (1984).
5
Therefore, to the extent plaintiff has a claim separate from the fugitive felon overpayment
6
(now underpayment), it is not exhausted and must be dismissed.
7
CONCLUSION
8
9
Accordingly, IT IS ORDERED that: Defendant’s motion to dismiss, filed May 31, 2011,
(dkt. no. 14), will be granted. However, the case will not be ordered dismissed until the Commissioner
10
files proof in this court that he has sent the promised underpayment to plaintiff. The Commissioner
11
shall file such proof within 90 days of the filed date of this order.
12
Dated: October 20, 2011
13
14
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Bell2529.mtd.wpd
15
16
17
18
19
20
21
22
23
24
25
26
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?