Janitzek v. Astrue
MEMORANDUM OPINION re 8 Motion to Dismiss. Signed by Judge Leonard P. Stark on 8/11/2014. (rpg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 12-1209-LPS
CAROLYN W. COLVIN,
Acting Commissioner of Social
Lachette Janitzek, Wilmington, Delaware.
Pro Se Plaintiff.
Charles M. Oberly, III, Esquire, United States Attorney, and Heather Benderson, Esquire, Special
Assistant United States Attorney, of the Office of the United States Attorney, Wilmington,
Of Counsel: Eric P. Kressman, Esquire, Regional Chief Counsel, of the Social Security
Administration, Philadelphia, Pennsylvania.
Attorneys for Defendant.
August 11, 2014
Carolyn W. Colvin became the Acting Commissioner of Social Security, effective February
14, 2013, succeeding former Commissioner Michael Astrue, whose term expired on February 13,
2013. Pursuant to Fed. R. Civ. P. 25(d)(1) and 42 U.S.C. § 405(g), Carolyn W. Colvin is
automatically substituted as the defendant in this action.
Plaintiff, Lachette Janitzek ("Janitzek or Plaintiff'), who appears prose, appeals from a
decision of Defendant, Carolyn W. Colvin, the Acting Commissioner of Social Security
("Commissioner" or "Defendant"), denying her application for a period of disability, disability
insurance benefits ("DIB"), and supplemental security income ("SSI") under Title II and Title XVI
of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433, 1381-1383f.
Presently before the Court is a motion to dismiss for want of jurisdiction filed by Defendant.
(D.l. 8) For the reasons set forth below, the Court will grant the Commissioner's motion.
Plaintiff filed an application for a period of disability, DIB, and SSI on March 31, 2011.
(D.l. 8 Lillian L. Gremillion Deel. ("Gremillion Deel.")
(3)(a)) Plaintiffs applications were
denied initially on August 15, 2011, and again upon reconsideration on November 21, 2011. (Id. at
(3)(b)) On February 2, 2012, Plaintiff filed an untimely request for a hearing before an
Administrative Law Judge ("AL]"), and was advised by a letter dated March 7, 2012 that the request
for hearing was untimely, that Plaintiff failed to provide a reason for her untimeliness, and that she
had fifteen days from the date of the letter to submit a signed statement or other information
showing the reasons that the request for hearing was untimely. (Id.
(3)(c) and (d)) On May 4,
2012, the ALJ issued a notice of dismissal, finding that Plaintiff had not established good cause for
missing the deadline to request a hearing. (Id.
Plaintiff filed a request for review, which the Appeals Council denied on August 8, 2012. (Id.
(3)(£)) The Appeals Council "found no reason under (the] rules to review the [ALJ's] dismissal."
(D.I. 8 Gremillion Deel. at if (3)(g) and ex. 6) Plaintiff filed the instant action on September 26,
2012. (D.I. 2)
LEGAL STAND ARDS
When a party files a motion to dismiss attacking subject matter jurisdiction, the Court must
first determine if the motion is a factual attack or a facial attack. See CNA v. United States, 535 F.3d
132, 139 (3d Cir. 2008). Defendant's motion is a factual attack inasmuch as it concerns "the actual
failure of [plaintiffs] claims to comport [factually] with the jurisdictional prerequisites." United States
ex reL Atkinson v. PA. Shipbuilding Co., 4 73 F.3d 506, 514 (3d Cir. 2007). When a motion to dismiss
for lack of subject matter jurisdiction attacks the existence of subject matter jurisdiction in fact, "no
presumptive truthfulness attaches to plaintiffs allegations and the court may evaluate for itself the
merits of jurisdictional claims." Mortenson v. f'zrst Fed Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977); see also Fed. R. Civ. P. 12(b)(1). Plaintiff bears the burden of showing that jurisdiction exists.
See Kehr Packages, Inc. v. tl"delcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Exclusive jurisdiction over Social Security benefits cases arise from 42 U.S.C. § 405(g). The
same rule applies to SSI cases. See 42 U.S.C. § 1383(c)(3); see also Callender v. Social Sec. Admin., 275 F.
App'x 17 4, 17 5 (3d Cir. Apr. 23, 2008). Section 405(g) provides, in relevant part: "Any individual,
after any final decision of the Commissioner of Social Security made after a hearing to which he was
a party[,] ... may obtain a review of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within such further time as the Commission of
Social Security may allow." Section 405(h) provides, in relevant part: "The findings and decision of
the Commissioner of Social Security after a hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall
be reviewed by any person, tribunal, or governmental agency except as herein provided."
As a general rule, judicial review is barred absent a "final decision" by the Commissioner of
Social Security. See f:
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