LAMPON-PAZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
12
OPINION. Signed by Judge Kevin McNulty on 12/26/2017. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MANUEL LAMPON-PAZ,
Civ. No. 16-9537 (KM)
Plaintiff,
V.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Mr. Manuel Lampon-Paz brings this, his second action requesting that
the court order “an immediate decision on my appeal” by the Social Security
Administration regarding his disability claims. (Compl. 2).’ The Commissioner
of Social Security seeks to dismiss the claim, stating that this Court does not
have jurisdiction because Mr. Lampon-Paz has not exhausted his
administrative remedies and there has been no “final decision
...
after a
hearing” in this case as required by the Social Security Act, 42 U.S.C.
§
Citations to the record are abbreviated as follows
“Compl.”
=
Complaint (ECF no. 1), cited by page number.
“Def. Br.” = Memorandum in Support of Defendant’s Motion to Dismiss
Plaintiffs Complaint (ECF no. 7)
“Gremillion Deci.”
“P1. Br.”
=
=
Declaration of Lillian Gremillion (ECF no. 7-1)
Response to Motion to Dismiss (ECF no. 8)
1
405(g).
I.
BACKGROUND
Mr. Lampon-Paz is a former federal government employee, currently on
disability-related retirement and receiving a monthly annuity. (See Compi. pp.
10, 15 (citing earlier litigation)). On September 4, 2015, Mr. Lampon-Paz
submitted an application for Title II Disability Insurance Benefits (“DIB”).
(Gremillion Decl.
¶ 3(a)). The application was denied on November 23, 2015
and again, upon reconsideration, on January 26, 2016. (Gremillion Dccl.
¶ 3(a)). On February 2, 2016, Mr. Lampon-Paz filed a request for a hearing
before an administrative law judge (“AW”). (Gremillion Decl. ¶ 3(b)). The last
filing before this Court indicated that the request for a hearing was still
pending. (See Def. Br. 1).2
Mr. Lampon-Paz instituted a civil action in this Court on August 15,
2016, raising a number of matters. Lampon-Paz v. Social Security
Administration, No. 16-5052. One of them was a request that this Court reverse
the Social Security’s denial of expedited treatment. (See Complaint, ECF no. 1)
By order I disposed of the matter for lack of jurisdiction. (Id. ECF no. 9) On
appeal, the United States Court of Appeals for the Third Circuit affirmed my
ruling that this Court lacked jurisdiction under 42 U.S.C.
§ 405(g), (h), and
1383(c) (3), for want of a final order. The Court of Appeals added that, if
mandamus jurisdiction were proper, it would not be warranted on the facts of
the case. Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 F.
App’x 71 (3d Cir. Sept. 26, 2016).
Three months later, on December 28, 2016, Mr. Lampon-Paz instituted
this, his second civil action in this court requesting that the court order “an
immediate decision” by the Social Security Administration regarding his
disability claims. (Compl. 2). This complaint asserts jurisdiction under 42
U.S.C.
§ 1983, alleging a deprivation of civil rights, and 28 U.S.C. § 1361,
seeking mandamus relief. (Compl. 1). The complaint cites the Social Security
2
That request for a hearing is seemingly the “appeal” to which the Complaint
refers.
2
regulations and medical records, alleging that Mr. Lampon-Paz has several
impairments, including four disc herniations, two missing or degenerated
discs, spinal stenosis, radiculopathy, joint pain, fibromyalgia, and osteophytic
ridge. (Compl. 3) The Complaint states that Mr. Lampon-Paz is unable to work,
was experiencing homelessness, and has trouble paying for his medications.
(P1. Br. 2-3). He asks that this court order the Social Security Administration to
expedite his case.
H.
LEGAL STANDARDS
A.
Rule 12(b)(1) Motion
Motions to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1) may be raised at any time. Iwanowa a Ford Motor Co.,
67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). “[B]ecause subject matter
jurisdiction is non-waivable, courts have an independent obligation to satisfy
themselves of jurisdiction if it is in doubt. See Mt. Healthy City 5th. Dist. Bd. of
Educ.
ii.
Doyle, 429 U.S. 274, 278 (1977).
Rule 12(b)(1) challenges may be either facial or factual attacks. See 2
Moore’s Federal Practice
§ 12.30[4] (3d ed. 2007); Mortensen v. First Fed. Say. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that
the complaint does not allege sufficient grounds to establish subject matter
jurisdiction. Iwanowa, 67 F. Supp. 2d at 438. A court considering such a facial
challenge assumes that the allegations in the complaint are true. Cardio-Med.
Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983);
Iwanowa, 67 F. Supp. 2d at 438. A factual attack, on the other hand, permits
the Court to consider evidence extrinsic to the pleadings. Gould Elecs. Inc. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified on other
grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus “Rule
12(b)(1) does not provide plaintiffs the procedural safeguards of Rule l2(b)(6),
such as assuming the truth of the plaintiffs allegations.” CNA a United States,
535 F.3d 132, 144 (3d Cir. 2008).
The burden of establishing federal jurisdiction rests with the
party asserting its existence. [citing DcimlerChnjsler Corp. a Cuno,
3
547 U.S. 332, 342 n.3 (2006).] “Challenges to subject matter
jurisdiction under Rule 12(b)(1) may be facial or factual.” [citing
Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.
2009) (quoting Taliaferro v. Darby Twp. Zoning Rd., 458 F.3d 181,
188 (3d Cir. 2006)).] A facial attack “concerns ‘an alleged pleading
deficiency’ whereas a factual attack concerns ‘the actual failure of
[a plaintiffs] claims to comport [factua1ly with the jurisdictional
prerequisites.”’ [citing CNA a United States, 535 F.3d 132, 139 (3d
Cir. 2008) (alterations in original) (quoting United States ex rd.
Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
“In reviewing a facial attack, the court must only consider
the allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the plaintiff.”
[citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, “the court must
permit the plaintiff to respond with rebuttal evidence in support of
jurisdiction, and the court then decides the jurisdictional issue by
weighing the evidence. If there is a dispute of a material fact, the
court must conduct a plenan’ hearing on the contested issues
prior to determining jurisdiction.” [citing McCann v. Newman
Irrevocable Tmst, 458 F.3d 281, 290 (3d Cir. 2006) (citations
omitted).]
Lincoln Benefit Life Co. v. AElLife, LLC, 800 F.3d 99, 105 (3d Cir. 2015)
(footnotes omitted; case citations in footnotes inserted in text).
The Social Security Administration asserts a facial attack. Therefore, the
court will consider only the allegations in the complaint, in the light most
favorable to the plaintiff.3
B. District Court Jurisdiction to Review Final SSA Orders
The exclusive jurisdictional basis for judicial review of Social Security
cases derives from 42 U.S.C.
§
405(g), (h), and l383(c)(3).
I have reviewed, not for theft truth but for purposes of establishing the
procedural history, certain filings in the Social Security administrative case. (See
Oremillion Decl. Exhibits, ECF no. 7-1 at 4—15) These do no more than confirm the
dates of the denials of benefits and the filing of a request for a hearing referred to in
the complaint.
3
4
Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, 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 Commissioner of Social Security may allow....
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 offact or decision of the
Commissioner of Social Security shall be reviewed by any person,
tribunal, or governmental agency except as herein provided. No
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(g), (h) (emphasis added). The statute thus “clearly limits
judicial review” in claims arising under the Social Security Act “to a
particular type of agency action, a ‘final decision of the Commissioner of
Social Security made after a hearing.” Calfon v. Sanders, 430 U.S. 99,
108 (1977).
The term “final decision” is undefined in the Act, but its meaning is
provided for by the Commissioner of Social Security’s regulations.
Weinberger v. Salfi, 422 U.S. 749, 766 (1975). These regulations provide
that to obtain a judicially reviewable “final decision
...
after a hearing,” a
claimant must pursue administrative appeal rights in accordance with
the regulations. See 20 C.F.R.
§ 416.1405 et seq. The regulations
specifically provide that “[a] claimant may obtain judicial review of a
decision by an administrative law judge if the Appeals Council has
denied the claimant’s request for review, or of a decision by the Appeals
Council when that is the final decision of the Commissioner.” 20 C.F.R.
§ 422.210.
5
C. Mandamus
Another potential route to the relief sought by Mr. Lampon-Paz may be a
writ of mandamus pursuant to 28 U.S.C.
§ 1361.
Mandamus is a drastic remedy that is granted in only
extraordinary cases. In re Diet Drugs Prods. Liab. Litig., 418 F.3d
372, 378 (3d Cir. 2005). To demonstrate that mandamus is
appropriate, a petitioner must establish that he has “no other
adequate means” to obtain the relief requested, and that he has a
“clear and indisputable” right to issuance of the writ. Madden v.
Myers, 102 F.3d 74, 79 (3d Cir. 1996). Mandamus may not be
used as a substitute for appeal. See In re Diet Drugs Prods. Liab.
Litig., 418 F.3d at 378-79.
In re Balice, 644 F. Appx 112, 113 (3d. Cir. 2016); see also Hahnemann Univ.
Hosp. u. Edgar, 74 F.3d 456, 461 (3d Cir. 1996) (“The writ of mandamus is a
drastic remedy that a court should grant only in extraordinary circumstances
in response to an act amounting to a judicial usurpation of power.” (citations
and internal quotation marks omitted)).
On appeal from this Court’s denial of an earlier, similar application by
Mr. Lampon-Paz, the Court of Appeals at least admitted the possibility of
mandamus jurisdiction in the context of a Social Security case:
The Supreme Court has declined to decide whether District
Courts may exercise mandamus jurisdiction in Social Security
cases. See Heckler v. Ringer, 466 U.S. 602, 616 (1984). But we
have exercised mandamus jurisdiction in Social Security cases in
other contexts, see Colonial Penn Ins. Co. v. Heckler, 721 F.2d
431, 437 n.2 (3d Cir. 1983), and at least one other court has held
that District Courts may exercise mandamus jurisdiction to
remedy unreasonable delays by the SSA in resolving claims for
benefits, see White v. Mathews, 559 F.2d 852, 855-56 (2d Cir.
1977); see also Fitzgerald, 148 F.3d at 235 (noting that a District
Court, in the absence of a final SSA decision, “may well have had
jurisdiction” over a claim that the SSA’s delay- violated due
process).
Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 F.
App’x 71 (3d Cir. Sept. 26, 2016) (nevertheless denying relief).
6
III.
DISCUSSION
Mr. Lampon-Paz asserts jurisdiction under 42 U.S.C.
§ 1983, asserting
that the SSA’s denial of benefits, or denial of a speedy resolution of his claims,
constitutes a deprivation of civil rights. In these respects, his Complaint, which
cites the substantive regulations and the medical evidence, closely resembles
an ordinary appeal from a denial of benefits. No final order denying benefits,
however, has been entered. See Section lI.B, supra.
On appeal from this Court’s dismissal of a substantially similar claim by
Mr. Lampon-Paz, the United States Court of Appeals agreed that jurisdiction
was lacking:
Lampon-Paz sought an order requiring the SSA to rule on his
application “immediately.” His specific prayer for relief was for an
order directing the SSA to “grant me my benefits immediately or
give reason as to why not.”
The District Court dismissed Lampon-Paz’s complaint for
lack of subject matter jurisdiction under 42 U.S.C. § 405(g). The
District Court reasoned that § 405(g) authorizes review only of the
SSA’s “final decision” and that the SSA’s decision not to expedite
Lampon-Paz’s appeal is not a “final decision” within the meaning of
that statute. We agree that the District Court lacked § 405(g)
jurisdiction over Lampon-Paz’s complaint because his
administrative proceeding is not final. See Fitzgerald v. Apfel, 148
F.3d 232, 234 (3d Cir. 1998). For the same reason, the District
Court lacked jurisdiction to the extent that Lampon-Paz sought an
order directing the SSA to actually grant his application and pay
him benefits.
Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 F. App’x 71
(3d Cir. Sept. 26, 2016).
The applicable statutes, 42 U.S.C.
§ 405(g), (h) and 1383(c)(3), provide
the exclusive grounds for this Court’s review of agency action. Now, as before,
this Court lacks jurisdiction because there has been no final order.
I give separate consideration, however, to the request for mandamus
relief under 28 U.S.C.
§ 1361. As noted above, see Section II.C, in Mr. Lampon
Paz’s earlier appeal, the Court of Appeals was willing to at least entertain the
7
possibility of mandamus jurisdiction in an appropriate case, although it denied
relief.
Without setting a specific deadline, the Third Circuit’s earlier opinion
gave some guidance as to delays that might be found so excessive as to justify
the intervention of a court:
Even if the District Court had mandamus jurisdiction,
however, mandamus relief was not warranted on the merits. See
Ringer, 466 U.S. at 6 16-17 (holding that mandamus was not
appropriate on the merits without deciding existence of mandamus
represents an
jurisdiction). “[Al writ of mandamus
extraordinary remedy” and “a drastic one, to be invoked only in
extraordinary situations.” Semper v. Gomez, 747 F.3d 229, 251 (3d
Cir. 2015) (quotation marks omitted).
.
.
.
In this case, Lampon-Paz complains of the SSA’s nine-month
delay in deciding his administrative appeal. That delay falls far
short of the delays in adjudicating benefits that courts have found
Littlefield v. Heckler, 824 F.2d
problematic in other cases. See,
242, 247 (3d Cir. 1987) (rejecting claim based on a nine-month
delay and collecting cases granting relief on the basis of an almost
four-year delay but denying relief on the basis of delays of, inter
alia, 19 months and two years).
Lampon-Paz, 669 F. App’x 71.
Mr. Lampon-Paz filed his application for benefits on September 4, 2015.
The SSA acted with reasonable dispatch, denying the application on November
23, 2015 and again, upon reconsideration, on January 26, 2016. On February
2, 2016, Mr. Lampon-Paz filed a request for a hearing before an AW.
Mr. Lampon-Paz filed this action in December 2016, just three months
after the Third Circuit found that relief was not warranted. When it was filed, it
therefore had little chance of success. The facts, however, have changed since
then; most pertinently, additional time has passed. The facts before me (and
neither party has updated them) indicate that Mr. Lampon-Paz’s request for a
hearing before an AU is approaching its second anniversary.
8
Under the authorities cited by the Third Circuit, the two-year mark4
seems like a reasonable time to at least require the Administration to explain
itself. The Court is sympathetic with an agency whose processes may be
overburdened. Further, there may be specific reasons for any delays in Mr.
Lampon-Paz’s case. The brief of the SSA, however, rested on the lack of
§
405
jurisdiction, and did not separately address the mandamus point. Thus the
SSA did not proffer any facts regarding the status of the delay or the reasons
for the delay. I will now require it to do so.
IV.
CONCLUSION
For the foregoing reasons, defendant Social Security Administration’s
motion to dismiss for lack of jurisdiction is GRANTED IN PART, in that this
Court lacks jurisdiction under 42 U.S.C.
§
405(g), (h) and 1383(c)(3). It is
otherwise DENIED as presented. On or before February 2, 2018, however, the
SSA shall submit an affidavit or declaration documenting the reasons for the
delay and stating the current status of the request for a hearing and other
proceedings in the case.
No opinion is expressed as to the merits of the application for benefits, as
to which the SSA retains full authority and discretion.
An appropriate order accompanies this opinion.
Dated: December 26, 2017
MCNULTY
United States District
I clarify that, from what is before me, it appears that the applicant has waited
two years, not for a final resolution, but merely for a hearing.
4
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?