Gibson v. Astrue

Filing 18

ORDER granting 12 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 3/28/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MARVIN L. GIBSON,
Plaintiff,
v.

4:11-cv-222

MICHAEL ASTRUE, Commissioner of
Social Security,
Defendant.

administrative adjudication of Gibson’s
November 1999 application for benefits.
See Doc. 1 at 6. Essentially, Gibson seeks
enforcement of a September 15, 2003
remand order requiring location of Gibson’s
administrative record. See Doc. 17 at 2; see
also Gibson, No. 4:03-cv-90, Doc. 3.
Gibson also requests attorney fees and costs
under the Equal Access to Justice Act
(“EAJA”). See id.
A. Standards of Review
1. Subject Matter Jurisdiction

ORDER
I. INTRODUCTION
Before the Court is Defendant Michael
Astrue’ s (“Commissioner”) “Motion to
Dismiss for Lack of Subject Matter
Jurisdiction, or in the Alternative, Motion
for Summary Judgment.” See Doc. 12.
II. FACTS
The relevant facts are set forth in this
Court’s Order denying Plaintiff Marvin L.
Gibson’s (“Gibson”) motion to enforce in
his original case. See Gibson v. Astrue, No.
4:03-cv-90, Doc. 26 (S.D. Ga. Mar. 22,
2012).
III. ANALYSIS
The Commissioner moves to dismiss this
mandamus action, alleging that this Court
lacks jurisdiction. See Doc. 13 at 5. The
Commissioner also seeks summary
judgment on the grounds that mandamus is
improper in this action. See id. at 7.
Gibson asks the Court to compel either
the payment of Social Security disability
benefits to Gibson for the period of October
1, 1998, through April 30, 2004, or the

There are two types of attacks on subject
matter jurisdiction. See Lawrence v.
Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.
1990). “Facial attacks” require that the
court take the allegations of a plaintiff’s
complaint as true and determine whether the
plaintiff has sufficiently alleged a basis for
subject matter jurisdiction. See id. at 1529.
“‘Factual attacks,’ on the other hand,
challenge ‘the existence of subject matter
jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings,
such as testimony and affidavits, are
considered.” Id. (quoting Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980)).
“Mandamus jurisdiction is appropriate
only where (1) the defendant owes a clear
nondiscretionary duty to the plaintiff and (2)
the plaintiff has exhausted all other avenues
of relief.” Lifestar Ambulance Serv., Inc. v.
United States, 365 F.3d 1293, 1295 (11th
Cir. 2004).
“In resolving whether
[mandamus] jurisdiction is present,
allegations of the complaint, unless patently
frivolous, are taken as true to avoid tackling
the merits under the ruse of assessing

nonmoving party.’” Four Parcels, 941 F. 2d
at 1437 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A fact is
material only if it might affect the outcome
of the suit under governing law. See
Anderson, 477 U.S. at 248.

jurisdiction.” Cash v. Barnhart, 327 F.3d
1252, 1258 (11th Cir. 2003). Thus,
determining whether mandamus jurisdiction
exists is akin to a facial attack on subject
matter jurisdiction.
2. Summary Judgment

Gibson has the burden of demonstrating
that his right to the writ of mandamus is
clear and indisputable. See Serrano v. U.S.
Attorney Gen., 655 F.3d 1260, 1263 (11th
Cir. 2011).

“The court shall grant summary
judgment if the movant shows that there is
no genuine dispute as to any material fact
and the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(a). In
ruling on summary judgment, the Court
views the facts and inferences from the
record in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); United States v. Four Parcels of
Real Prop. in Greene & Tuscaloosa Cntys.,
941 F.2d 1428, 1437 (11th Cir. 1991).

B. Gibson’s Mandamus Action

Even assuming that mandamus actions
are cognizable against the Commissioner,
Gibson has failed to demonstrate a clear and
indisputable right to mandamus relief. Cf.
42 U.S.C. § 405(h) (limiting methods of
reviewing Commissioner’s decisions to
those methods provided for in the Social
Security Act); Lifestar Ambulance Serv.,
365 F.3d at 1295 n.3 (assuming, but not
deciding, that § 405(h) does not bar
mandamus actions). Gibson’s mandamus
complaint fails both because this Court lacks
jurisdiction and because Gibson has not set
forth sufficient facts demonstrating
entitlement to relief.

“The moving party bears ‘the initial
responsibility of informing the . . . court of
the basis for its motion, and identifying
those portions of the pleadings, depositions,
answers to interrogatories, and admissions
on file, together with the affidavits, if any,
which it believes demonstrate the absence of
a genuine issue of material fact.’” Four
Parcels, 941 F.2d at 1437 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986))
(internal quotation marks removed).

Gibson does not allege facts sufficient to
establish the existence of a clear
nondiscretionary duty owed by the
Commissioner. Gibson’s complaint does
not allege that the Court ordered the
Commissioner to act within a specific time
frame. The complaint merely avers that the
Commissioner indicated a willingness to
impose a timeline on his own agency. See
Doc. 1 at 3. Other than the Commissioner’s
discretionary self-imposed guideline, Gibson
identifies no event that vested a temporal

The nonmoving party then “may not rest
upon the mere allegations or denials of the
[nonmoving] party’s pleadings, but . . . must
set forth specific facts showing that there is
a genuine issue for trial.” Gonzalez v. Lee
Cnty. Hous. Auth., 161 F.3d 1290, 1294
(11th Cir. 1998). “A factual dispute is
genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the
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right in Gibson and thrust a temporal duty
upon the Commissioner. Therefore, the
Court does not have mandamus jurisdiction
over this case.
Furthermore, this Court has already
concluded that Gibson does not have a right
to the relief he is seeking because the
Commissioner has not violated the remand
order. See Gibson, No. 4:03-cv-90, Doc. 22.
Gibson has identified no other evidence
establishing a clear, nondiscretionary duty
owed by the Commissioner to Gibson.
Accordingly, Gibson has not presented
evidence demonstrating his right to
mandamus relief.
Because this Court lacks jurisdiction and
because Gibson has not set forth sufficient
facts demonstrating entitlement to relief, the
Court GRANTS the Commissioner’s
“Motion to Dismiss for Lack of Subject
Matter Jurisdiction, or in the Alternative,
Motion for Summary Judgment.”
Because Gibson is not a “prevailing
party,” he is not entitled to fees and other
expenses. See 28 U.S.C. § 2412.
IV. CONCLUSION

The Commissioner’s “Motion to Dismiss
for Lack of Subject Matter Jurisdiction, or in
the Alternative, Motion for Summary
Judgment,” see Doc. 12, is GRANTED.

This 28th day of March 2012.

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a-

AVANT DENFIELØ, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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