Boins-Plunkett v. Social Security

Filing 20

ORDER Granting 11 Motion to Dismiss for Lack of Jurisdiction. This action is Dismissed without prejudice. Signed by Judge Barry Ted Moskowitz on 12/5/2014. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PABLO BOINS-PLUNKETT,
v.

CASE NO. 14cv00714
BTM(NLS)

Plaintiff,

ORDER GRANTING MOTION
TO DISMISS

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security

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Administration (“SSA”) has filed a motion to dismiss the Complaint for lack of

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subject matter jurisdiction. For the reasons discussed below, Defendant’s

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motion is GRANTED.

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I. BACKGROUND

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Plaintiff Pablo Boins-Plunkett brought this action challenging the SSA’s

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suspension of his retirement benefits. Plaintiff argues that the SSA’s denial of

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his benefits on ground that he does not have current valid immigration status

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and needs to obtain a new Form I-94 from the Department of Homeland

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Security (“DHS”) to legalize his alien status is erroneous because he was told

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otherwise by Customs and Border Protection (“CBP”), an agency of DHS.
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14CV00714 BTM(NLS)

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While Plaintiff’s complaint is a brief half-page argument citing no particular

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statute or legal basis, Defendant rightly construes the claim as a petition for

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judicial review of agency action under Title II of the Social Security Act (the

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“Act”), 42 U.S.C. § 405(g).

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According to Defendant’s motion, the procedural history of this case

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began when Plaintiff filed for, and was granted, Social Security retirement

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benefits on January 24, 2012. However, shortly thereafter in February 2012,

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the SSA suspended payment of Plaintiff’s benefits because its agents

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determined that Plaintiff was not a United States citizen and did not have legal

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immigration status. Plaintiff proceeded to file this action on March 28, 2014,

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but to this day has not sought a remedy within the SSA. Defendant thereafter

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determined that Plaintiff lacked valid immigration status by accessing DHS’s

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Systematic Alien Verification for Entitlements (SAVE) Program and also

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obtained direct DHS confirmation that Plaintiff’s legal status expired in 2007.

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II. DISCUSSION

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Defendant argues that this action should be dismissed because Plaintiff

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has failed to exhaust his administrative remedies. The Court agrees.
Judicial review under the Act is available only after the aggrieved party

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exhausts administrative remedies.

Section 405(g) imposes, inter alia, a

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waivable requirement that the applicant exhaust the administrative remedies

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prescribed by the SSA, and bars judicial review of any denial of benefits until

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after a “final decision” by the Secretary after a “hearing.” Mathews v. Eldridge,

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424 U.S. 319, 328 (1976). Exhaustion is required as a matter of preventing

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premature interference with agency processes, so that the agency may function

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14CV00714 BTM(NLS)

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efficiently and have an opportunity to correct its own errors, to afford the parties

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and the courts the benefit of its experience and expertise, and to compile a

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record adequate for judicial review. Weinberger v. Salfi, 422 U.S. 749, 764

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(1975). However, exhaustion need not be satisfied if further administrative

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review is deemed futile. Id. at 765.

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The limited record here shows that Plaintiff has not exhausted his

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administrative remedies because he has not sought reconsideration of the

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agency’s initial February 2012 determination denying his retirement benefits.

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Plaintiff has not exhausted his administrative remedies because he did not take

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any one of the four-steps outlined in the Act’s process for exhaustion. See 20

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C.F.R. §§ 416.1400(a)(1)-(5) (setting out the process for exhaustion as follows:

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(1) initial determination; (2) reconsideration; (3) hearing before an

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administrative law judge (ALJ); (4) Appeals Council review; and (5) federal

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court review).

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administrative remedies would not be futile because, despite Plaintiff’s

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argument that CBP told him that it would not issue him a new I-94, DHS

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confirmed that Plaintiff needs to obtain the new I-94 to cure the defect in his

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immigration status. The Court agrees that since the SSA’s initial denial of

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benefits is based on the Plaintiff’s current illegal status, filing for

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reconsideration is not necessarily futile. He may raise the same issues raised

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here on reconsideration, and if unsuccessful, before the ALJ and then the

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Appeals Council. This conclusion and the resulting order are based on the

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assumption that Plaintiff is not otherwise barred from seeking agency

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reconsideration. See e.g., 20 C.F.R. § 416.1405 (stating that an initial agency

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determination is binding unless the applicant requests reconsideration within

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the stated time period, or the SSA otherwise revises its initial determination).

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Defendant argues that requiring Plaintiff to exhaust his

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14CV00714 BTM(NLS)

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Factual allegations asserted by the pro se petitioners, “however inartfully

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pleaded,” are held “to less stringent standards than formal pleadings drafted by

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lawyers.” Haines v. Kerner, 404 U.S. 519-20 (1972). Therefore, the Court

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construes Plaintiff’s reply that CBP denied him a new I-94 as raising the “futility”

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argument. Nevertheless, Plaintiff’s argument is insufficient to overcome the

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§ 405(g) exhaustion requirement because Plaintiff can simply raise the same

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argument within SSA proceedings.

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Consequently, the Court finds that Plaintiff has failed to exhaust his

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administrative remedies, the Court lacks jurisdiction over the action, and the

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matter should be dismissed without prejudice pursuant to Kelly v. Fleetwood

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Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (explaining that where the

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Court lacks subject matter jurisdiction, the claims should be dismissed without

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prejudice).

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III. CONCLUSION

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For the reasons discussed above, Defendant’s motion to dismiss the
Complaint is GRANTED. This action is DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: December 5, 2014

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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