Beaudreau v. US Social Security Administration, Acting Commissioner

Filing 9

///ORDER granting 5 Motion to Dismiss. The case is dismissed for lack of subject matter jurisdiction. The clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Norman Beaudreau
v.

Civil No. 17-cv-032-JD
Opinion No. 2017 DNH 125

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration

O R D E R
Robert Norman Beaudreau brought suit seeking judicial
review, pursuant to 42 U.S.C. § 405(g), of the decision of the
Social Security Administration to deny him social security
retirement benefits under the Windfall Elimination Provision.
The Acting Commissioner moves to dismiss on the ground that the
court lacks subject matter jurisdiction.
untimely response to the motion.

Beaudreau filed an

The Acting Commissioner filed

a reply.
Standard of Review
For purposes of a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), the court credits the
plaintiff's properly pleaded allegations and draws all
reasonable inferences in the plaintiff's favor.

Reddy v.

Foster, 845 F.3d 493, 497 (1st Cir. 2017).

In addition to the

complaint, the court considers other materials and evidence in
the record “whether or not the facts therein are consistent with
those alleged in the complaint.”1

Id.; see also Torres-Negron v.

J&N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007).

When

subject matter jurisdiction is challenged, the party asserting
subject matter jurisdiction, the plaintiff in this case, has the
burden of showing that jurisdiction exists.

Acosta-Ramirez v.

Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir. 2013).
Discussion
In support of the motion to dismiss, the Acting
Commissioner contends that the underlying administrative action,
the Appeals Council’s order dated January 13, 2017, is not a
“final decision” of the Acting Commissioner of Social Security
under § 405(g).

As a result, the Acting Commissioner asserts,

the order is not subject to judicial review so that the court

Beaudreau, who is represented by counsel, asserts that the
Acting Commissioner improperly supported the motion to dismiss
with other evidence, including a declaration. Beaudreau is
mistaken. An affidavit or declaration that would not be
considered for purposes of a motion to dismiss under Rule
12(b)(6) is properly considered for purposes of a motion under
Rule 12(b)(1). See Mehic v. Dana-Farber Cancer Inst., Inc.,
2017 WL 637681, at *3 (D. Mass. Feb. 16, 2017); Conservation Law
Found. v. Cont'l Paving, Inc., 2016 WL 7116019, at *2 (D.N.H.
Dec. 6, 2016).
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lacks subject matter jurisdiction in this case.

Beaudreau does

not address subject matter jurisdiction directly and instead
argues that the Acting Commissioner has mischaracterized the
relief that he is seeking through judicial review and challenges
the administrative procedure used to process his requests for
reconsideration of administrative decisions.
In the January 13 order, the Appeals Council held that the
Administrative Law Judge (“ALJ”) erred in considering
Beaudreau’s challenge to the calculation of benefits and should
have considered only whether Beaudreau was entitled to
readjudication under Acquiescence Ruling (“AR”) 12-1(8).

The

Appeals Council determined that Beaudreau was not entitled to
readjudication under AR 12-1(8), and, as a result, the ALJ
should have dismissed Beaudreau’s claim.

The Appeals Council

retroactively dismissed Beaudreau’s request for a hearing,
making the ALJ’s decision of no effect, and reinstated the
decision issued on October 28, 2008, as the final decision of
the Commissioner.
This court has jurisdiction to review final decisions of
the Commissioner of Social Security.

§ 405(g).

“Absent a

constitutional claim, [the court] lack[s] jurisdiction to review
the Secretary’s refusal to reopen a prior adjudicated claim.”
Dvareckas v. Sec’y of Health & Human Servs., 804 F.2d 770, 771
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(1st Cir. 1986) (citing Califano v. Saunders, 430 U.S. 99
(1977)).

An agency action, without a hearing, is not a final

decision of the Commissioner for purposes of § 405(g).

Rios v.

Sec’y of Health, Ed., & Welfare, 614 F.2d 25, 26 (1st Cir.
1980).

In addition, a decision to retroactively dismiss a

request for a hearing is not a final decision that is subject to
judicial review under § 405(g).

Hockridge v. Barnhart, 44 F.

App’x 107 (D.C. Cir. 2002); Morris v. Colvin, 183 F. Supp. 3d
1133, 1136 (D. Colo. 2016).
Beaudreau states that there is “no question” that the
Appeals Council’s decision was final and that the Acting
Commissioner is “splitting hairs” in the characterization of his
claim.

He has not shown, however, that the Appeals Council’s

decision was a final decision within the meaning of § 405(g)
and, for that reason, has not carried his burden to show that
subject matter jurisdiction exists.

In the absence of subject

matter jurisdiction, the court cannot review the Appeals
Council’s decision.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 5) is granted, and the case is dismissed
for lack of subject matter jurisdiction.

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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
June 20, 2017
cc:

Leslie Nixon, Esq.
T. David Plourde, Esq.

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