HOWELL v. COLVIN

Filing 22

ORDER granting 19 Commissioner's Motion to Dismiss and denying Howell's 13 Motion to Stay Further Proceedings. Howell's Complaint is hereby DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to close this case forthwith. (cm). Signed by Judge Richard L. Young on 8/2/2016. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFFREY E. HOWELL,

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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

1:16-cv-00352-RLY-MJD

ORDER ON HOWELL’S MOTION TO STAY and
THE COMMISSIONER’S MOTION TO DISMISS
Jeffrey E. Howell, Plaintiff, filed this action for judicial review of the decision by
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, to
withhold funds from his future monthly benefit checks due to an alleged overpayment
that occurred in August 2015. The Commissioner moves to dismiss Howell’s Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust his
administrative remedies. “It is axiomatic that the United States as sovereign cannot be
sued without its consent. If the Government does waive its sovereign immunity, it alone
dictates the terms and conditions on which it may be sued.” Macklin v. United States,
300 F.3d 814, 820 (7th Cir. 2002) (citation omitted). Here, Congress has authorized
judicial review only “after any final decision of the Commissioner of Social Security.”
42 U.S.C. § 405(g). See 20 C.F.R. § 404.900(a).

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The Commissioner argues that Howell has not obtained a final decision yet
because his case is still pending at the reconsideration stage. Howell readily concedes as
much. He therefore requests that the court either stay the case or dismiss it without
prejudice. The court cannot simply stay further proceedings because the United States
has not waived its sovereign immunity for this claim. Dismissal is required.
Therefore, the Commissioner’s Motion to Dismiss (Filing No. 19) is GRANTED
and Howell’s Motion to Stay Further Proceedings (Filing No. 13) is DENIED. Howell’s
Complaint is hereby DISMISSED WITHOUT PREJUDICE. The Clerk is
DIRECTED to close this case forthwith.

SO ORDERED this 2nd day of August 2016.
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RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.
Distributed via U.S. Mail:
Jeffrey E. Howell
899 S. College Mall Rd.
Bloomington, IN 47401

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