Uvalles v. Astrue

Filing 15

INTERIM ORDER RE 7 MOTION TO DISMISS. Signed by Magistrate Judge Howard R. Lloyd on 12/20/11. (hrllc1, COURT STAFF) (Filed on 12/20/2011)

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** E-filed December 20, 2011 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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DEBORAH UVALLES,
Plaintiff,

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v.
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No. C11-00478 HRL
INTERIM ORDER RE:
DEFENDANT’S MOTION TO
DISMISS

MICHAEL J. ASTRUE,
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[Re: Docket No. 7]
Defendant.
____________________________________/
In this putative social security benefits appeal, defendant Michael Astrue, Commissioner of

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the Social Security Administration, moved to dismiss for lack of subject matter jurisdiction. Dkt.

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No. 7. In essence, the defendant argues that because the Administrative Law Judge (“ALJ”) denied

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plaintiff’s request for a hearing as untimely, there has been no “final agency decision” in the

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underlying social security benefits application, and plaintiff therefore cannot request judicial review

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by this court. See id. This is a correct statement of the law. See 42 U.S.C. § 405(g) (granting a social

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security benefits claimant the right to appeal a “final decision of the Commissioner” in federal

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district court).

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However, in her opposition to the motion to dismiss, plaintiff states a claim for a

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constitutional due process violation. “Even though a claimant's failure to obtain a final decision . . .

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deprives the district court of subject matter jurisdiction, the district court may waive a claimant's

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failure to exhaust administrative remedies and grant her judicial review if she asserts a colorable

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constitutional claim.” Cardot v. Astrue, 2011 U.S. Dist. LEXIS 100548, *4-5 (W.D. Wash. Aug. 22,

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2011) (citing Califano v. Sanders, 430 U.S. 99, 109 (1977)). At the December 20 hearing on

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defendant’s motion to dismiss, plaintiff’s counsel conceded that the constitutional claim is the only

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possible basis for federal subject matter jurisdiction since plaintiff failed to obtain a final agency

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decision.

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In order to fully develop the record on the constitutional claim, defendant shall submit to this

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court within 30 days of the date of this order: (1) Eric Johnson’s March 2010 letter to the Social

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Security Administration; (2) a transcript of the hearing that the ALJ held to determine if plaintiff

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was entitled to a hearing on the merits of her application; and (3) any and all documents and

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materials that the parties submitted to the ALJ or that the ALJ considered in conjunction with or

For the Northern District of California

United States District Court

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anticipation of the hearing that was held.
Further, within 10 days of the filing of the materials listed above, the parties may submit

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supplemental briefing focused on this legal issue: when a written notice from the SSA is not

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received by either plaintiff or her attorney, is plaintiff’s constitutional right to due process satisfied

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by an oral notice received by an employee of plaintiff’s attorney?

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IT IS SO ORDERED.
Dated: December 20, 2011
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C11-00478 HRL Notice will be electronically mailed to:

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Tom F. Weathered
Shea Lita Bond

[e-mail]
[e-mail]

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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