Marchand v. Commissioner of Social Security

Filing 7

MEMORANDUM AND ORDER, For the reasons that follow, his complaint (ECF Dkt. No. 1) is dismissed without prejudice, and with leave to amend in accordance with the terms of this Order. If Marchand elects not to file an amended complaint, or neglects to do so in a timely fashion, this docket will be closed for administrative purposes. Alternatively, and perhaps the neater and easier course for him, Marchand may withdraw this complaint and file a new complaint at such time as he has received a final decision from the Commissioner, as herein described. Marchand is reminded that, after receiving a final decision from the Commissioner through either of these two methods, he has 60 days to file a new federal court complaint seeking review of that f inal decision. All proceedings in this Court on this complaint shall be stayed until further order of the Court. The Court certifies, pursuant to 28 USC sec. 1915(a)(3), that any appeal would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is directed to mail a copy of this Order to the pro se pltff. (Ordered by Judge Eric N. Vitaliano on 6/14/2017) Must See Order for further details. c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------- x

JOHN F. MARCHAND,
Plaintiff,
MEMORANDUM & ORDER
-against17-cv-3252 (ENV)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

-------------------------------------------------------------- x
VITALIANO, D.J.

Pro se plaintiff John F. Marchand commenced this action against the Commissioner o:f

Social Security (the "Commissioner"), on May 30, 2017, seeking review of the Administritivlj
Law Judge's (the "ALJ") decision, dated May 2, 2017, that denied his application for Child
I
I

Disability Benefits. For the reasons that follow, his complaint (ECF Dkt. No. 1) is dismis~ed
!

without prejudice, and with leave to amend in accordance with the terms of this Order.
Background
Marchand's application for Child Disability Benefits is presently before the
Commissioner, see id. at 1-2, 5-8, as it has been since its remand from this Court, see Order,

Marchand v. Comm 'r ofSoc. Sec., No. 15-cv-2385 (E.D.N. Y. Jan. 26, 2016).' Following! a
I

February 24, 2017 hearing, the ALJ issued a Notice of Decision denying his claim, on May 2,i
I

I

I

I

'

2017. See id. at 2, 5, 8. The notice informed Marchand of his right to appeal the decisio~ to ~e

'

I

On the complaint form, in the blank space for indicating the type of disability, it appe~s that
Marchand initially wrote "child's insurance benefits," before crossing that out and writing
"SSi mentel illness [sic], major depression." ECF Dkt. No. 1 at 1. The attached Notibe o
Decision, however, indicates that Marchand' s application was for "Child Disability
Benefits." Id. at 8.
I

1

Appeals Council, and that, if he did not appeal and the Appeals Council did not review the

.

matter on its own, then the ALJ' s decision would become final on the 61 st day after the date o

1

i

the notice. See id. at 6. The notice further explained that, after the decision became final,
Marchand would have "60 days to file a new civil action in Federal district court." Id.
Standard of Review
A pro se complaint, "however inartfully pleaded, must be held to less stringent standards
I

than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
I

I

t~e

2197, 2200, 167 L. Ed. 2d 1081 (2007) (citation omitted). At the same time, where, as hefe,

I"('1I .
) is

.
.
.
.
. 'f.
p1amt1'ff. proceed'mg m fiorma paupens, the d'istnct court must d' . t he comp lamt 1 1t
is
1sm1ss

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) selks
I

monetary relief from a defendant who is immune from such relief." 28 U.S.C. §

1915(e)(2)(~).

Moreover, if a federal court "determines at any time that it lacks subject-matter jurisdiction,

[J't]

1

must dismiss the action." Fed. R. Civ. P. 12(h)(3); see Endicott Johnson Corp. v. Liberty liwu

Ins. Co., 116 F.3d 53, 58 (2d Cir. 1997) (federal court must dismiss complaint, sua spont1, ifj
subject matter jurisdiction is lacking); United Food & Commercial Workers Union, Locali91

.

1

AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)

("Where jurisdiction is lacking, ... dismissal is mandatory." (citation omitted)).
Discussion
The Social Security Act provides federal court jurisdiction to review the "final decision"
I

of the Commissioner regarding an individual's eligibility for disability benefits or supplethental
I

I

security income. 42 U.S.C. §§ 405(g), 1383(c)(3). As a general rule, any "available
administrative procedures must be exhausted" before review is sought in federal court, and "a
final decision is a prerequisite for subject matter jurisdiction in the District Court." Mathkws v.
I
I

I

2

Chafer, 891 F. Supp. 186, 188 (S.D.N.Y. 1995) (citations omitted); accord Oslzly v. Mendlewicz,
No. 15-cv-5681, 2015 WL 7575902, at *3 (E.D.N.Y. Nov. 25, 2015); Maynardv. Soc. SeJ

Admin., No. 11-cv-6046, 2012 WL 2319249, at *3 (E.D.N.Y. June 19, 2012).2
Typically, the "final decision" of the Commissioner "is rendered when the Appeals

1

I

Council either considers the application on the merits or declines a claimant's request for 1evi9w,
I

and not simply when the ALJ issues its decision." Pollard v. Halter, 377 F.3d 183, 191 (2(i Cir.
2004) (citations omitted); see 20 C.F .R. §§ 404. 981, 416.1481. Alternatively, where, as

h~re, lhe
!

I

case has been remanded from federal court, the ALJ's subsequent decision on remand becomes
the "final decision" of the Commissioner unless the Appeals Council assumes jurisdictionlortle
case within 60 days after the ALJ's decision is issued. See 20 C.F.R. §§ 404.984,

416.14~4; Je

also Jackson v. Astrue, No. 09-cv-1290, 2010 WL 3777732, at *1 n.1 (E.D .N. Y. Sept. 21,l 201lo).
Under these well-established ground rules, Marchand's complaint must be dismissfd ~or

lack of subject matter jurisdiction, since, on the face of the record, it appears that he has n~t Yft
I

tt

received a "final decision" from the Commissioner, which is a prerequisite for jurisdictiorl in this
I

Court. Marchand alleges-and the Notice of Decision attached to his complaint confirms-·

the ALJ's decision was issued on May 2, 2017. See ECF Dkt. No. 1at2, 5. That decisiob would
I

have become final: (a) if Marchand sought review from the Appeals Council or the Appeals I
I

Council assumed jurisdiction of the case on its own, upon issuance of the Appeals Counc,l's

;

i·
!

determination or rejection of his request for review; or, alternatively, (b) if he did not appeal and
I

2

'

In certain limited circumstances-none of which are presented here-a plaintiffs failul re to
exhaust administrative remedies may be excused, such as where the "legal claims are
collateral to the[ ] demand for benefits, where exhaustion would be a pro forma or futile
gesture, or where the harm suffered in the interim would be irreparable." Id. (quoting Sm 'th
v. Schweiker, 709 F.2d 777, 780 (2d Cir. 1983)) (citing Abbey v. Sullivan, 978 F.2d
4
(2d Cir. 1992)).
1

1

37,

3

the Appeals Council did not assume jurisdiction of the case within 60 days of the ALJ's decisi n,
on the 61 51 day after the ALJ's Notice of Decision-that is, July 2, 2017. However, the redord
I

reflects that neither of those conditions has yet to obtain in this case.
By writing the date "May 2, 2017" in three consecutive blank spaces on the
complaint form, Marchand presumably proceeds on his understanding that he has

1

stand~d
1

receive~ a fi~al ·

decision from the Commissioner because, according to him, the Appeals Council affirmed! the,
i

ALJ's decision on the very same day that it was issued-May 2, 2017. See id. at 2. Furthfr, ~e
I

seems to represent that he received a copy of the Appeals Council's affirmance letter on ~ay 2,
2017, as well. See id. Marchand has not, however, submitted any documentation to confib
I

such a facially implausible 24-hour turnaround.
Indeed, in spite of the bold, capitalized warning on the complaint form that states,
I

"IMPORTANT: ATTACH A COPY OF THE APPEALS COUNCIL LETTER TO THE
I

I

BACK OF THIS COMPLAINT," Marchand did not append a copy of any letter from th~
Appeals Council resolving any appeal that he may-or may not-have taken from the AUJ's
I

decision. More critically, at the time that he filed this complaint, on May 30, 2017, far fewer
than 60 days had elapsed since the ALJ's May 2, 2017 decision, which means that the de+sio
could not have become final in the absence of a ruling from the Appeals Council. Nothing in the
record even suggests that has happened. Therefore, on the present record, the Court cann?t fipd
I

that the Commissioner has rendered a "final" decision. As a consequence, the Court canriot
I

conclude that it possesses valid subject matter jurisdiction over this action.

4

1

Conclusion
i

For the foregoing reasons, Marchand's complaint (ECF Dkt. No. 1) is dismissed witho t
prejudice for lack of subject matter jurisdiction.
Marchand is granted 30 days from the date that this Order is entered on the docket to fie
an amended complaint that establishes, factually and plausibly, a valid basis for this Courtis
subject matter jurisdiction; that is, that he has received a final decision from the Commissi~me
that is subject to federal court review. The amended complaint must be captioned, "Amen~ed
Complaint," and bear the same docket number as this Order: 17-cv-3252. If Marchand ha~

i

sought review from the Appeals Council or the Appeals Council has assumed jurisdiction <In i4
I

own, and the Appeals Council has issued a letter resolving such appeal, he shall attach that letter
I

I

to his amended complaint. If Marchand elects not to file an amended complaint, or neglects to
do so in a timely fashion, this docket will be closed for administrative purposes.
Alternatively, and perhaps the neater and easier course for him, Marchand may witqdraf
I

this complaint and file a new complaint at such time as he has received a final decision froip thp
Commissioner, either: (a) in the event that he has sought review from the Appeals Councill or

ie
I

Appeals Council has assumed jurisdiction of the case on its own, after the Appeals Councill

!

issues its determination or declines his request for review; or (b) in the event that he has not

i

I

I

I

sought review from the Appeals Council and the Appeals Council has not assumed jurisdiction
1

of the case within 60 days of the ALJ's decision, once, in this event, the ALJ's decision
resultingly becomes final, on July 2, 2017. Marchand is reminded that, after receiving a final
I
decision from the Commissioner through either of these two methods, he has 60 days to
new federal court complaint seeking review of that final decision.

5

m9 a

/s/ USDJ ERIC N. VITALIANO