Powers v. Berryhill

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION: The Report and Recommendation 19 is ADOPTED, and this action is hereby DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Signed by Judge Dee Benson on 5/27/20. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
WINTER JOY POWERS,

ORDER ADOPTING REPORT AND
RECOMMENDATION

Plaintiff,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant.

Case No. 2:18-cv-00333-DB-PMW
District Judge Dee Benson
Magistrate Judge Paul M. Warner

Before the court is the Report and Recommendation issued by Magistrate Judge Paul M.
Warner, dated April 23, 2020. (Dkt. No. 19.) In the Report and Recommendation, Judge Warner
recommends that the court dismiss this action without prejudice for lack of subject matter
jurisdiction. The parties were notified of their right to file objections to the Report and
Recommendation within 14 days of service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72.
Plaintiff objected to the Report and Recommendation on May 6, 2020. (Dkt. No. 20.) Defendant
responded to Plaintiff’s Objection on May 20, 2020. (Dkt. No. 21.)
In her Objection, Plaintiff makes two arguments concerning the Appeals Council decision
to dismiss Plaintiff’s untimely request for review of the Administrative Law Judge’s Order of
Dismissal: 1) that the Appeals Council decision to dismiss Plaintiff’s request for review was a
“final decision,” and therefore open to judicial review; and 2) that the Appeals Council decision
violated Plaintiff’s right to due process under the Fifth Amendment. These arguments were
already articulated in Plaintiff’s response to the Commissioner’s Motion to Dismiss (Dkt. No.
17), and were considered by Magistrate Judge Warner in his Report and Recommendation.

The court has performed a de novo review of the record that was before the magistrate
judge and the reasoning set forth in his Report and Recommendation. Having reviewed the
record, as well as the arguments set forth in Plaintiff’s Objection, the court agrees with the
reasoning and assessment of Magistrate Judge Warner that the court lacks jurisdiction over
Plaintiff’s action. For claims arising under Title II or Title XVI of the Social Security Act, the
court only has jurisdiction to review a final decision of the Commissioner after a hearing.
Plaintiff is seeking judicial review prior to such a final decision by the Commissioner.
Accordingly, the court finds that the analysis and conclusion of the magistrate judge are correct,
and the Report and Recommendation will be adopted. Plaintiff’s Objection is therefore
overruled.
It is hereby ORDERED that the Report and Recommendation (Dkt. No. 19) is
ADOPTED, and this action is hereby DISMISSED WITHOUT PREJUDICE for lack of subjectmatter jurisdiction.

DATED this 27th day of May, 2020.

BY THE COURT:

DEE BENSON
United States District Judge