Anderson v. Berryhill
Filing
19
ORDER granting 7 Motion to Dismiss for Lack of Jurisdiction. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 9/26/2018. (EB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Dean A.,
Case No. 17-cv-5572 (TNL)
Plaintiff,
v.
ORDER
Nancy A. Berryhill, Deputy Commissioner
for Operations, performing the duties and
functions not reserved to the Commissioner
of Social Security,
Defendant.
Stephanie M. Balmer 1, Falsani, Balmer, Peterson & Balmer, 1200 Alworth Building, 306
West Superior Street, Duluth, MN 55802 (for Plaintiff); and
Pamela Marentette, Assistant United States Attorney, United States Attorney’s Office,
300 South Fourth Street, Suite 600, Minneapolis, MN 55415; and Tracey Wirmani,
Social Security Administration, Office of the General Counsel, 1301 Young Street, Suite
A702, Dallas, TX 75202 (for Defendant).
I. INTRODUCTION
This matter is before the Court on Defendant Nancy A. Berryhill’s (“the
Commissioner”) Motion to Dismiss (ECF No. 7), seeking dismissal of this matter for lack
of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The parties have consented
1
Prior to appearance of attorney Balmer on April 17, 2018, Plaintiff was represented by attorney Sean M. Quinn,
who appears to have been with the same law firm. (ECF No. 15; see, e.g., Compl., ECF No. 1; Aff. of Sean M.
Quinn, ECF No. 12.) Unless otherwise specified, references to actions taken by counsel refer to actions taken by
attorney Quinn.
1
to a final judgment from the undersigned United States Magistrate Judge in accordance
with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D. Minn. LR 72.1(c).
II. BACKGROUND 2
A. Overpayment of SSI
In 1995, Plaintiff began receiving Supplemental Security Income (“SSI”). (Decl.
of Cristina Prelle ¶ 3(a), ECF No. 10.) Plaintiff was incarcerated from October 2011 to
September 2012. (ALJ Decision at 2-3, Ex. 3 to Prelle Decl., ECF No. 10-3. 3) Inmates
of public institutions are not eligible for SSI during the months in which they are
incarcerated.
See 42 U.S.C. § 1382(e)(1)(A); 20 C.F.R. §§ 416.201, .211, .1325.
Plaintiff failed to notify the Social Security Administration (“SSA”) of his incarceration.
(ALJ Decision at 3-4.) In October 2013, the SSA mailed Plaintiff a letter informing him
that he had been overpaid benefits in the amount of $7,141.39 based on his incarceration.
(Prelle Decl. ¶ 3(a); Ex. 1 to Prelle Decl., ECF No. 10-1.) This letter informed Plaintiff
that if he disagreed with the decision he could ask for a waiver, an appeal, or both. (Ex. 1
at 1 to Prelle Decl.) The letter further informed Plaintiff that he had “60 days to ask for
an appeal” and to do so he “must fill out a form called ‘Request for Reconsideration.’”
(Ex. 1 at 2 to Prelle Decl.)
2
The Court has construed the Commissioner’s motion to be a factual, rather than facial, attack on the existence of
subject matter jurisdiction. “In a factual attack, the existence of subject matter jurisdiction is challenged in fact,
irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered.” Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914-15 (8th Cir. 2015) (quotation omitted);
accord Osborn v. United States, 918 F.2d 724, 729-30 & n.6 (8th Cir. 1990). Both parties have submitted materials
in support of their respective positions and the Court may consider such materials without converting the
Commissioner’s motion into one for summary judgment. Osborn, 918 F.2d at 729-30.
3
This document is nearly identical to Exhibit 1 to the affidavit of Plaintiff’s counsel. (Compare ALJ Decision with
Ex. 1 to Aff. of Sean M. Quinn, ECF No. 12-1.) The only difference is the exhibit submitted by Plaintiff included
an exhibit list. To avoid confusion, the Court will cite only to one document.
2
1. Reconsideration of Overpayment
Plaintiff filed a timely request for reconsideration. (ALJ Decision at 1; see Ex. 2
at 1 to Prelle Decl., ECF No. 10-2.) In February 2014, the SSA mailed Plaintiff a letter
informing him that his request for reconsideration was denied. (Ex. 2 at 1 to Prelle Decl.;
see ALJ Decision at 1; Prelle Decl. ¶ 3(b).) The letter explained that Plaintiff was “not
entitled to receive SSI while in Jail” and, “[b]ecause of [his] failure to report [his]
incarceration, [he was] overpaid $7[,]141.39.” (Ex. 2 at 1 to Prelle Decl.) The letter
informed Plaintiff that if he disagreed with the decision he could request a hearing before
an administrative law judge (“ALJ”) and that he had “60 days to ask for a hearing.” (Ex.
2 at 1 to Prelle Decl.) Plaintiff timely requested a hearing before an ALJ. (ALJ Decision
at 1; see Prelle Decl. ¶ 3(c).)
2. ALJ Decision Regarding Overpayment
The ALJ held a hearing in April 2015. (ALJ Decision at 1.) In September 2015,
the ALJ found that Plaintiff had been overpaid SSI benefits for the time he was
incarcerated. 4
(See generally ALJ Decision.)
The notice accompanying the ALJ’s
decision informed Plaintiff that if he disagreed with the decision, he could “file an appeal
with the Appeals Council,” and that the appeal must be filed within 60 days. (Notice of
Decision Unfavorable at 1, Ex. 3 to Prelle Decl., ECF No. 10-3.)
Plaintiff did not appeal the ALJ’s decision. (See Prelle Decl. ¶ 3(c); Quinn Aff.
¶¶ 7, 18; Ex. 2 at 1 to Quinn Aff., ECF No. 12-2.) Instead, Plaintiff conceded that there
4
The ALJ reduced the amount of overpayment to $6,932. (ALJ Decision at 6-7.) The ALJ found that “because
[Plaintiff] was not incarcerated through the entire months of October 2011 and September 2012, [he] was actually
overpaid benefits for the period of November 2011 through August 2012,” and “the amount of the overpayment is
more accurately described as being $6[,]932 instead of $7[,]141.39.” (ALJ Decision at 6-7.)
3
was an overpayment and sought waiver of the overpayment. (Ex. 2 at 1 to Quinn Aff.
(“Rather than appeal the decision we have elected to file waiver now.”); see Quinn Aff.
¶¶ 7, 9.)
B. Request for Waiver
In October 2015, Plaintiff filed a request for waiver of the collection of the
overpayment. (Quinn Aff. ¶ 9; Prelle Decl. ¶ 3(d); see generally Ex. 2 to Quinn Aff.)
The SSA denied Plaintiff’s request for waiver via letter. The SSA sent Plaintiff two
letters, both dated February 24, 2016. (Quinn Aff. ¶¶ 10, 20.) While both letters denied
Plaintiff’s request for waiver, the letters provided different instructions as to what
Plaintiff should do if he disagreed with the SSA’s decision. One letter instructed Plaintiff
to seek reconsideration if he disagreed with the SSA’s decision while the other letter
instructed him to ask for a hearing before an ALJ.
1. Reconsideration Letter
In the letter provided by the Commissioner, the SSA stated that records showed
that the waiver request Plaintiff filed in October 2015 was “a duplicate of an earlier
request filed 12/09/2013.”
(Ex. 4 at 1 to Prelle Decl., ECF No. 10-4.) This letter
explained that “[s]ince there [we]re no new issues and this is a duplicate request, the
decision [the SSA] made on the earlier request still applies.” (Ex. 4 at 1 to Prelle Decl.)
The letter then instructed:
You may request reconsideration of our determination that
the issue involved in your new request is the same as the issue
involved in your previous request. If you want this
reconsideration, you must request it within 60 days from the
4
date you receive this notice. If you have additional evidence,
you should submit it with your request.
(Ex. 4 at 1 to Prelle Decl; see Quinn Aff. ¶ 10.)
2. Hearing Letter
In the letter provided by Plaintiff, the SSA explained that it could not waive
collection of the overpayment because the overpayment was due to Plaintiff’s failure to
inform the SSA of his incarceration. (Ex. 3 at 2 to Quinn Aff., ECF No. 12-3.) This
letter went on to state:
You have file [sic] a reconsideration on December 09, 2013
and per your request, a personal conference was held on
January 28, 2014. You met with a representative at the St[.]
Paul Social Security office, who did not work on your case
before the overpayment. We denied your request on February
05, 2014. Since there is no new issues and this is a duplicate
request, the decision we made on the earlier request still
applies.
(Ex. 3 at 2 to Quinn Aff.)
This letter then instructed:
If you disagree with this decision, you have the right to
appeal. A person who has not seen your case before will look
at it. That person will be an administrative law judge. The
administrative law judge will review your case and look at
any new facts you have before deciding your case. We call
this a hearing.
(Ex. 3 at 2 to Quinn Aff.) The letter informed Plaintiff that he had “60 days to ask for a
hearing” and that “[t]he 60 days start the day after you get this letter.” (Ex. 3 at 2 to
Quinn Aff.)
5
3. Request for Hearing on Denial of Waiver
In a letter dated April 11, 2016, within 60 days of the February 24 denial(s),
Plaintiff appealed the waiver denial by requesting a hearing before an ALJ. (Ex. 4 to
Quinn Aff., ECF No. 12-4; see Quinn Aff. ¶ 11.) The only evidence in the record
regarding the hearing request is the affidavit of Plaintiff’s counsel stating that the request
was mailed on April 11, 2016, accompanied by a cover letter of the same date and a
request-for-hearing form signed by both Plaintiff and counsel on April 6, 2016. (Ex. 4 to
Quinn Aff.; see Quinn Aff. ¶ 11.) The SSA did not receive Plaintiff’s hearing request.
(Prelle Decl. ¶ 3(e); Def.’s Mem. in Supp. at 4, ECF No. 8; Def.’s Suppl. Mem. at 5, 6,
ECF No. 18.)
As of September 2016, Plaintiff was homeless, and his counsel inquired into the
status of his hearing request. (Quinn. Aff. ¶ 12; see Ex. 5 at 3 to Quinn Aff., ECF No.
12-5.) The SSA subsequently sent Plaintiff another letter dated September 20, 2016.
(Ex. 5 to Prelle Decl., ECF No. 10-5. 5) The letter stated that records indicated that the
waiver request was a “duplicate of an earlier request filed on 12/09/2013” that “was
denied at the Hearing Appeal level by a[n] administrative law judge.” (Ex. 5 at 1 to
Prelle Decl.) The letter stated that “[s]ince there [we]re no new evidences [sic] and that
was a duplicate request of the same issue, the decision [the SSA] made on the earlier
request still applie[d] to [Plaintiff].” (Ex. 5 at 1 to Prelle Decl.)
The letter further stated:
5
Plaintiff’s Exhibit 5 includes the September 20, 2016 letter (although it is addressed to counsel rather than
Plaintiff) along with other documents whereas Exhibit 5 to the Prelle Declaration includes just the September 20,
2016 letter (although it is addressed to Plaintiff rather than counsel). To avoid confusion, the Court will cite only to
one document.
6
However, as stated in the notice you may request a
reconsideration of our determination on February 24, 2016.
We state that if you want us to reconsideration [sic], you must
request it within 60 days from the date you receive that
notice. If you have additional evidences [sic], you should
submit it with your request. However, we did not receive an
appeal from you and the 60[]days has expired on April
29,[]2016.
(Ex. 5 at 1 to Prelle Decl. (emphasis added).)
Plaintiff’s counsel followed up with the SSA multiple times to no avail. Counsel
sent a letter in October 2016, “indicating that [Plaintiff] requested the hearing, . . . did so
in a timely fashion and they should process this.” (Quinn Aff. ¶ 13.) Counsel sent
another letter in January 2017, stating that Plaintiff was “waiting for a hearing on a
request for waiver.” (Ex. 6 at 1 to Quinn Aff., ECF No. 12-6; see Quinn Aff. ¶ 14.)
Counsel sent another letter in June 2017, noting that Plaintiff “requested the hearing in
April 2016, which is fourteen months ago,” and the request still had not been processed.
(Ex. 7 at 1 to Quinn Aff., ECF No. 12-7; see Quinn Aff. ¶ 14.) Counsel stated that
Plaintiff was “being denied due process.” (Ex. 7 at 2 to Quinn Aff.) Counsel sent yet
another letter in July 2017, stating Plaintiff was being denied due process of law and
demanding that the SSA “[p]rocess the appeal.” (Ex. 8 at 1 to Quinn Aff., ECF No. 12-8;
see Quinn Aff. ¶ 14.)
Subsequently, Plaintiff’s counsel left at least two phone messages with the SSA
office located in St. Paul, Minnesota, in an attempt to resolve this matter. (Quinn Aff.
¶ 15.) When the SSA did not return the calls, Plaintiff brought the present action.
(Quinn Aff. ¶¶ 15, 16.)
7
C. Present Action
Plaintiff brings the present action seeking to compel the Commissioner to process
Plaintiff’s request for a hearing on the waiver denial.
Plaintiff alleges he timely
submitted a request for a hearing within 60 days of the February 24 denial, consistent
with the instructions accompanying the denial. (Compl. ¶¶ 4-5.) Plaintiff alleges that
[a]s of the present time, the local office has refused to process
the request for hearing form, a year and a half since it has
been requested. Numerous phone calls and letters to the local
office asking them to process the form and to explain why
they haven’t done so have gone unanswered (un-responded
to).
(Compl. ¶ 6.) Plaintiff alleges that the Commissioner’s failure to honor his request for a
hearing and “to provide him due process of law is a violation of his constitutional rights
and his rights under the statutes and rules governing the [SSA].” (Compl. ¶ 7.) Plaintiff
requests that “[t]his Court order [the Commissioner] to process the request for hearing
form and allow [him] a hearing, on his waiver request, before an ALJ.” (Compl. ¶ a.)
III. ANALYSIS
The Commissioner has moved to dismiss this matter for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1).
“The burden of proving federal court
jurisdiction is on the party seeking to invoke federal jurisdiction.” Mitchael v. Colvin,
809 F.3d 1050, 1053 (8th Cir. 2016).
A. Limited Judicial Review
“The United States has authorized limited judicial review of claims arising under
Title XVI of the Social Security Act.” Bamberg v. Astrue, No. 10 Civ. 6348(CM)(THK),
8
2011 WL 4000898, at *3 (S.D. N.Y. Sept. 8, 2011). Judicial review is governed by 42
U.S.C. § 405(g). 42 U.S.C. § 1383(c)(3). Section 405(g) allows for judicial review of
final decisions of the Commissioner “made after a hearing.” Id. § 405(g); see, e.g.,
Mitchael, 809 F.3d at 1054; Lively v. Bowen, 827 F.2d 268, 269 (8th Cir. 1987) (per
curiam).
Section 405(h) conditions the right to judicial review under § 405(g) “upon
compliance with the procedures set forth in the Social Security Act, namely, the proper
and timely exhaustion of administrative remedies at the agency level.” Jones v. Soc. Sec.
Admin., Civil Action No. 15-06385, 2016 WL 7238390, at *1 (E.D. La. Nov. 10, 2016),
adopting report and recommendation, 2016 WL 7210346 (E.D. La. Dec. 12, 2016); see
42 U.S.C. § 405(h) (“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.”). Section
405(h) further provides that “[n]o action against the United States, the Commissioner of
Social Security, or any officer or employee thereof shall be brought under section 1331 or
1346 of Title 28 to recover on any claim arising under this subchapter.” 42 U.S.C.
§ 405(h) (emphasis added).
Generally, a claimant must proceed through three additional stages of
administrative review after receiving an initial determination from the SSA. Wild v.
Astrue, No. 07-cv-1372 (JNE/JSM), 2008 WL 698483, at *3 (D. Minn. Mar. 13, 2008);
see 20 C.F.R. § 416.1400(a)(2)-(4).
If unsatisfied with an initial determination, a
9
claimant may seek reconsideration. 20 C.F.R. §§ 416.1400(a)(2), .1405. Thereafter, if
unsatisfied with the reconsideration determination, the claimant may request a hearing
before an ALJ. 20 C.F.R. §§ 416.1400(a)(3), .1421, .1430. If unsatisfied with the ALJ’s
decision, the claimant may seek further review with the Appeals Council. 20 C.F.R.
§§ 416.1400(a)(4), .1455. Once these steps have been completed, the SSA has “made
[its] final decision” and a claimant may seek judicial review by filing an action in federal
court. 20 C.F.R. §§ 416.1400(a)(5), .1481; see Sheehan v. Sec. of Health, Educ. &
Welfare, 593 F.2d 323, 326 (8th Cir. 1979) (“Under the Secretary’s regulations finality
required for judicial review is achieved only after a hearing before an administrative law
judge and, ordinarily, consideration by the Appeals Council.”).
In briefing the motion to dismiss, the Commissioner focused her arguments on the
fact that Plaintiff did not seek further review of the ALJ’s decision that overpayment
occurred with the Appeals Council, and therefore did not obtain a final decision under the
Act. Plaintiff himself conceded that he did not seek further review of the ALJ’s decision.
Were Plaintiff seeking judicial review of the determination that overpayment occurred,
this may well have ended the matter. Plaintiff is not, however, seeking judicial review of
the ALJ’s decision.
B. Waiver Request
Following the ALJ’s determination that overpayment occurred, Plaintiff submitted
a request for waiver to the SSA. A waiver request is not an appeal of an overpayment
determination. Bronstein v. Apfel, 158 F. Supp. 2d 1208, 1211 (D. Colo. 2001); see 20
C.F.R. § 416.551 (“Waiver of adjustment or recovery of an overpayment from the
10
overpaid person himself (or, after his death, from his estate) frees him and his eligible
spouse from the obligation to repay the amount of the overpayment covered by the
waiver.”).
Rather, a waiver request is a request for relief under 42 U.S.C.
§ 1383(b)(1)(B), which allows the Commissioner to waive recovery of overpayment in
certain circumstances.
Bronstein, 158 F. Supp. 2d at 1211; see 42 U.S.C.
§ 1383(b)(1)(B); 20 C.F.R. §§ 416.550-.556.
The SSA denied Plaintiff’s waiver request. Significantly, Plaintiff is not asking
this Court to review that denial either. Rather, Plaintiff alleges that the Commissioner is
denying his constitutional right to due process by not processing his hearing request.
Plaintiff seeks an order directing the Commissioner to process his hearing request and
allow him a hearing before an ALJ on the waiver denial.
C. Alternative Bases for Jurisdiction
Based on Plaintiff’s allegations and the relief sought, two alternative basis for
federal court jurisdiction appeared to be implicated: the mandamus statute, 28 U.S.C.
§ 1361, and the presence of a colorable constitutional claim. 6
Neither party had
addressed these possible alternative bases for jurisdiction when briefing the motion to
dismiss.
6
Plaintiff asserts that “[t]he Court has jurisdiction because [his] claim is collateral to his receipt of benefits.” (Pl.’s
Suppl. Mem. at 4, ECF No. 17.) The collateral/procedural and constitutional nature of Plaintiff’s claim provides
other avenues for federal court jurisdiction outside of 42 U.S.C. §§ 405(g) and (h) in the appropriate circumstances.
See, e.g., Belles v. Schweiker, 720 F.2d 509, 512 (8th Cir. 1983) (no obstacle to mandamus jurisdiction for
procedural claims); see also, e.g., Califano v. Sanders, 430 U.S. 99, 108-09 (1977); Mathews v. Eldridge, 424 U.S.
319, 329-32 (1976); Mitchael, 809 F.3d at 1055; Efinchuk v. Astrue, 480 F.3d 846, 848 (8th Cir. 2007); Bamberg,
2011 WL 4000898, at *4 (constitutional challenges excepted from exhaustion requirement). The
collateral/procedural nature of Plaintiff’s claim does not itself provide an independent basis for federal court
jurisdiction.
11
This Court has an obligation to ensure that it has jurisdiction over this matter. See,
e.g., Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal
courts have an independent obligation to ensure that they do not exceed the scope of their
jurisdiction, and therefore they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press.”); Pudlowski v. The St. Louis Rams, LLC, 829
F.3d 963, 964 (8th Cir. 2016) (per curiam) (“A court has an independent obligation to
ensure that the case is properly before it.”); Guggenberger v. Starkey Labs., Inc., Nos. 16cv-2021 (JRT/LIB), 16-cv-2022 (JRT/LIB), 2016 WL 7479542, at *5 (D. Minn. Dec. 29,
2016) (“Federal courts are obligated to examine and confirm the basis for their
jurisdiction, even where neither party to the controversy has raised the issue.”).
Accordingly, the Court ordered supplemental briefing. (Order, June 22, 2018, ECF No.
16).
That briefing is now complete, and the Commissioner’s motion is ripe for a
determination on the papers.
D. Mandamus
“Federal courts have jurisdiction . . . under the federal mandamus statute, 28
U.S.C. § 1361, to consider challenges to the procedures used in administering Social
Security benefits.” Mitchael, 809 F.3d at 1054; see 28 U.S.C. § 1361 (“The district
courts shall have original jurisdiction of any action in the nature of mandamus to compel
an officer or employee of the United States or any agency thereof to perform a duty owed
to the plaintiff.”); see also, e.g., Belles, 720 F.2d at 512-13; Dietsch v. Schweiker, 700
F.2d 865, 868 (2d Cir. 1983). “Mandamus may issue under § 1361 against an officer of
the United States only in extraordinary situations . . . .” Mitchael, 809 F.3d at 1054. The
12
plaintiff must show “(1) a clear and indisputable right to the relief sought, (2) the state
officer has a nondiscretionary duty to honor that right, and (3) there is no other adequate
remedy.” Id. (quotation omitted). “In order for mandamus to lie, the duty owed to the
plaintiff must be ministerial and a positive command so plainly prescribed as to be free
from doubt.” Id. (quotation omitted). Plaintiff asserts that § 1361 confers federal court
jurisdiction in this instance because the Commissioner is required to process his request
for a hearing on the waiver request.
The Commissioner
shall provide reasonable notice and opportunity for a hearing
to any individual who is or claims to be an eligible individual
. . . and is in disagreement with any determination under this
subchapter with respect to eligibility of such individual for
benefits, or the amount of such individual’s benefits, if such
individual requests a hearing on the matter in disagreement
within sixty days after notice of such determination is
received.
42 U.S.C. § 1383(c)(1)(A) (emphasis added).
Under 20 C.F.R. § 416.1430(b), the
Commissioner “will hold a hearing only if you or another party to the hearing file a
written request for a hearing.” 7 See 20 C.F.R. § 416.1429 (“The Deputy Commissioner
7
Notably, the next step in the administrative process after the initial denial of Plaintiff’s waiver request was
reconsideration, not a hearing before an ALJ. Compare 20 C.F.R. §§ 416.1400(a)(2) (“If you are dissatisfied with
an initial determination, you may ask us to reconsider it.”), .1405 (“An initial determination is binding unless you
request a reconsideration within the stated time period, or we revise the initial determination.”) with 20 C.F.R.
§§ 416.1400(a)(3) (“If you are dissatisfied with a reconsideration determination, you may request a hearing before
an administrative law judge.”), .1421 (“The reconsidered determination is binding unless—(a) You . . . request[] a
hearing before an administrative law judge within the stated time period and a decision is made . . . .”); .1429 (“If
you are dissatisfied with one of the determinations or decisions listed in § 416.1430, you may request a hearing.”),
.1430(a) (“You . . . may request a hearing before an administrative law judge if we have made—(1) A reconsidered
determination . . . .”).
While Plaintiff states he “has a clearly delineated right to a hearing after being denied upon
reconsideration,” (Pl.’s Supp’l Mem. at 5), there is no indication in the record that Plaintiff requested
reconsideration of the waiver denial. Instead, Plaintiff himself stated that he requested a hearing rather than
reconsideration. (Quinn Aff. ¶¶ 10-11; see Compl. ¶¶ 4-5. Any request by Plaintiff for a hearing prior to seeking
13
for Disability Adjudication and Review, or his or her delegate, will appoint an
administrative law judge to conduct the hearing.”).
The Commissioner “has a
nondiscretionary duty to hold a hearing, once it is requested in writing.” Cintron v.
Comm’r of Soc. Sec. Admin., No. 09 Civ. 09039 (GBD) (KNF), 2011 WL 2791351, at
*14 (S.D. NY. July 1, 2011) (referencing 20 C.F.R. § 404.930), adopting report and
recommendation, 2013 WL 208903 (S.D. N.Y. Jan. 18, 2013). Acknowledging that
“SSA has a non-discretionary right [sic] to hold a hearing only if plaintiff or another
party to the hearing files a request for a hearing,” the Commissioner contends that
“Plaintiff has not put forth sufficient evidence showing that he filed an April 11, 2016
request for a hearing, and thus is not entitled to a writ of mandamus compelling the
[SSA] to grant him a hearing.” (Def.’s Suppl. Mem. at 3.)
In one of the February 24, 2016 letters, Plaintiff was informed that he had 60 days
to ask for a hearing. Plaintiff asserts that he requested a hearing on April 11, 2016,
within the 60 days. According to Plaintiff, “the allegations of the Complaint should be
taken as true in determining whether federal jurisdiction is available.” (Pl.’s Suppl.
Mem. at 5 n.1.)
But in a factual attack on jurisdiction, such as the Commissioner has mounted
here, “the nonmoving party . . . [does] not enjoy the benefit of the allegations in its
pleadings being accepted as true by the reviewing court.” Branson Label, 793 F.3d at
915; accord Osborn, 918 F.2d at 729 n.6 (“In a factual attack, the court considers matters
reconsideration was, therefore, arguably improper. As stated above, however, the SSA sent Plaintiff two letters of
the same date, each providing different instructions as to what Plaintiff should do if he disagreed with the denial of
the waiver request. Section II.B supra. One directed Plaintiff to seek reconsideration, and the other directed him to
request a hearing before an ALJ. Id. Plaintiff elected to request a hearing.
14
outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6)
safeguards.” (citation omitted)). The only evidence in the record regarding the hearing
request is the affidavit of Plaintiff’s counsel stating that the request was mailed on April
11, accompanied by a cover letter of the same date and a request-for-hearing form signed
by both Plaintiff and counsel on April 6, 2016. (Ex. 4 to Quinn Aff.; see Quinn Aff.
¶ 11.) Plaintiff’s counsel further averred, “Of course I actually sent that request in to the
appropriate office.” (Quinn Aff. ¶ 11.) There is, however, no proof of actual mailing.
The Sixth Circuit Court of Appeals recently encountered a similar set of facts in
Smith v. Commissioner of Social Security, 880 F.3d 813 (6th Cir. 2018), pet. for cert.
filed, No. 17-1606 (Sup. Ct. May 25, 2018). Smith received an unfavorable decision
from an ALJ accompanied by a notice of decision stating that he “had sixty days to file a
written appeal with the Appeals Council if he disagreed with the ALJ’s decision.” Smith,
880 F.3d at 814. “Smith’s attorney claimed he timely mailed a request for review to the
Appeals Council, but was unable to provide any independent evidence of this.” Id. “The
[SSA] did not receive the request until approximately four months after the time for
appeal had expired. Finding no good cause for the untimeliness, the Appeals Council
dismissed the appeal.” Id.
Smith brought a civil action, alleging, among other things, that his due process
rights were violated because “the Appeals Council denied his request for review as
untimely after he allegedly timely mailed the request.” Id. at 817. “The district court
determined that aside from his attorney’s own testimony, Smith was not able to provide
any proof that he mailed his written request on April 24, 2014.” Id. “The [district] court
15
concluded that absent independent evidence, such as a postmark or dated receipt, . . . [it
could not] reverse the Appeals Council’s determination that the written request for appeal
was untimely.” Id. (quotation omitted).
The Sixth Circuit affirmed. The Sixth Circuit stated that “Smith’s dated request
for appeal and his attorney’s testimony that he timely mailed the request is not proof that
the request was actually mailed.
Further, the [SSA] has no record of ever timely
receiving the request and Smith was unable to provide a postmark or dated receipt.” Id.
at 818. “Taking into account this lack of independent evidence, [the Sixth Circuit held]
there is no presumption of receipt.” Id. The appellate court went on to state that “[e]ven
if such a presumption were appropriate, however, it was effectively rebutted by the
[SSA]’s statement that it did not receive the request before October 1, 2014—
approximately four months late.” Id.
The same is true here. The SSA has no record of ever timely receiving Plaintiff’s
hearing request. There is no independent evidence that Plaintiff’s hearing request was
timely mailed within the 60 days. There is no receipt. There is no postmark. There is no
tracking number. There is no metadata or other independent evidence of timely mailing.
This is so even after the Court raised the jurisdictional issue and provided both sides an
opportunity for additional briefing. Given the extraordinary nature of mandamus relief,
however, the Court cannot conclude on this record that jurisdiction exists under § 1361.
The Commissioner’s nondiscretionary to hold a hearing is triggered by a timely written
request. There is no clear, nondisrectionary duty to hold a hearing based on a hearing
request that was either untimely or never received at all. See Mitchael, 809 F.3d at 105416
55; cf. Bamberg, 2011 WL 4000898, at *6 (mandamus jurisdiction appropriate where
claimant timely requested hearing yet request had not been processed for over four
years). Therefore, although Plaintiff raises a procedural challenge, wholly collateral to
the merits of the denial of his request for waiver, see Belles, 720 F.2d at 512, there is no
jurisdiction under § 1361.
E. Colorable Constitutional Claim
“[W]hen constitutional questions are in issue, the availability of judicial review is
presumed.” Califano, 430 U.S. at 109; see Smith, 880 F.3d at 817. An exception to
§ 405(g)’s rule requiring a final decision of the Commissioner for judicial review exists
for colorable constitutional claims. Mitchael, 809 F.3d at 1055; Efinchuk, 480 F.3d at
848. “Where the claimant raises constitutional questions, . . . review is available despite
the claimant’s failure to exhaust administrative remedies.” Lively, 827 F.2d at 269;
accord Jones, 2016 WL 7238390, at *2 (“An exception to the exhaustion requirement
exists where a plaintiff presents a colorable constitutional challenge to the
Commissioner’s decision.” (citing Califano, 430 U.S. at 108-09)); Wild, 2008 WL
698483, at *4 (“Nevertheless, despite a failure to exhaust administrative remedies, the
Court may review a constitutional challenge to the Commissioner’s decision.”). Courts
have waived the exhaustion requirement when a constitutional challenge is collateral to a
claim for benefits. See, e.g., Mathews, 424 U.S. at 329-32; Gipson v. Harris, 633 F.2d
120, 122 (8th Cir. 1980); Bamberg, 2011 WL 4000898, at *4; see also Bronstein, 158 F.
Supp. 2d at 1214.
17
Plaintiff asserts that he has presented a colorable constitutional claim wholly
collateral to the merits of the denial of his request for waiver. Plaintiff asserts that he is
being denied his right to due process because the SSA has not afforded him a hearing on
the waiver denial. The Commissioner responds that “[t]his is not a case where [the] SSA
denied Plaintiff reasonable notice and opportunity for a hearing regarding his waiver
denial.” (Def.’s Suppl. Mem. at 6.) According to the Commissioner, the “SSA did not
deny Plaintiff a right to a hearing, but rather he failed to request a hearing,” and Plaintiff
“cannot now argue that [the] SSA denied him due process because he failed to comply
with remedies provided by [the] SSA.” (Def.’s Suppl. Mem. at 6.)
Plaintiff was not denied the opportunity to challenge the SSA’s denial of his
waiver request. In the February 24 denial, the SSA advised Plaintiff of the availability of
further review. Because Plaintiff had an opportunity to challenge the denial of his wavier
request, he was “provided constitutionally adequate due process, and there is no colorable
due process violation alleged in the complaint.” Mitchael, 809 F.3d at 1056 (citing
Lewellen v. Sullivan, 949 F.2d 1015, 1016 (8th Cir. 1991)). There is no colorable
constitutional claim where Plaintiff is unable to show that he requested a hearing in a
timely manner. See, e.g., Mahoney v. Colvin, Civil Action No. 15-13023-NMG, 2016
WL 8839010, at *4 (D. Mass. Nov. 7, 2016) (no colorable constitutional claim that SSA
violated claimant’s due process rights by failing to provide hearing despite repeated
requests where there was no indication SSA received first hearing request and second
hearing request was untimely), adopting report and recommendation, 2017 WL 1538520
(D. Mass. Apr. 13, 2017); Jones v. Colvin, Civil Action No. 15-6381, 2016 WL 5947350,
18
at *4 (E.D. La. Sept. 21, 2016) (claimant “raise[d] no colorable constitutional claim that
her due process rights were violated because she never had a meaningful opportunity to
be heard” where “Commissioner advised [claimant] in each notice that she could request
reconsideration and proceed through the four-step process, but [claimant] did not do so”),
adopting report and recommendation, 2016 WL 5940868 (E.D. La. Oct. 13, 2016);
Collins v. Comm’r of Soc. Sec., No. 1:15-cv-01459-SAB, 2016 WL 8731344, at *4 (E.D.
Cal. May 19, 2016) (no colorable constitutional claim where claimant “had the
opportunity to seek review of the decision awarding benefits, but a review hearing was
not provided because he did not file a timely request for a hearing”). Therefore, Plaintiff
is unable to invoke federal court jurisdiction on this basis either.
F. Conclusion
Based on the foregoing, the Court concludes that Plaintiff has not met his burden
of proving federal court jurisdiction. The Commissioner’s motion is granted and this
matter is dismissed without prejudice.
In closing, the Court notes that, under the
regulations, the Commissioner has the discretion to grant an extension of time to request
a hearing if the claimant requests an extension in writing and shows good cause for
missing the deadline. 8 20 C.F.R. § 416.1433(c); see 20 C.F.R. § 416.1411.
8
The same is true with respect to requests for reconsideration. See 20 C.F.R. § 416.1409(b). See supra n.7.
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IV. ORDER
Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY
ORDERED that:
1. Defendant’s Motion to Dismiss (ECF No. 7) is GRANTED.
2. This matter is dismissed WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: September 26 , 2018
s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Dean A. v. Berryhill
Case No. 17-cv-5572 (TNL)
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