Chris Walters
Plaintiff
Civil Case Number A:99CA0156SS
Kenneth Apfel Commissioner
Social Security Admin
Defendant
Defendant's Motion To Dismiss Plaintiff's Complaint
And Incorporate Memorandum in Support Thereof
Comes now Kenneth S Apfel, Commissioner of the Social Security Administration, the Defendant
in the above-entitled and numbered cause, acting by and through the United States Attorney for
the Western District of Texas, and hereby moves the court to dismiss Plaintiff's Complaint on the
grounds that the court lacks subject matter jurisdiction over the instant action and becuase
the Plaintiff's Complaint fails to state a claim upon which relief can be granted.
As hereiafter explained, Plaintiff failed to exhaust his administrative remedies with respect to
his claim for benefits and therefore, there has been no "final decision" of the Commissioner
as contemplated by Section 1631 (c)(3) of Title XVI of the Social Security Act, 42 U.S.C. 1381(3)
which incorporated Section 205 (g) of the Social Security Act, 42 U.S.C. 405 (g). Thus, this
Court is without jurisdiction over the subject matter of this claim.
The declaration of the office of hearings and Appeals, Social Security Administration,
attached hereto, sets forth the procedural history in this matter.
On September 14, 1998, The Plaintiff filed a request for review before the Appeals Council.
On March 16, 1999, Plaintiff filed the instant civil action in the United States District Court
for the Western District of Texas.
A hearing was sehceuled for Tuesday, June 22, 1999 at 11:00 AM in Room 100, 4204
Woodcock, San Antonio,Texas. Plaintiff was sent notification of the hearing date
at this address, 40 West Sunset Drive, Kerrville, Texas 78029-1634, on May 20, 1999
Exhibit 1 of Declaration). In a letter dated June 21, 1999, Plaintiff advised
Administrative Law Judge McCoy that he would be absend and requested a hearing
"on the record and exhibits".
Judicial review of cases arising under title XVI of the Social Security Act is
provided in, and expressly limited by, Sections 205(g) and(h) of the Act, 42 U.s.C. 405(g) and
(h). The remedy provided there is exclusive. It is well settled that the United States is
immune from suit execpt as it specificially consents to besued and that the terms of such
consent define the jurisdictionof any court in which such suit properly can be brought.
United States v. Sherwood 312 U.S. 584 (1941). Where a right is a creature of statute,
herein the right to sue, and the statute provides a special remedy, as Section 205(g),
infra provides, that remedy is exclusive. United States v. Babcock, 250 U.S. 328
(1919) Secton 205(g) reads in pertinent part that follows:
Any individual, after any final decison of of the Commissioner made after a hearing to which he
was a party, irrespective of the amount in convtroversy, 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 may allow...As part of his answer the Commissioner shall
file a certified copy of the transcript of the record including the evidence upon which
the findings and decision and complained of are based. The court shall have power to enter,
upon the pleadings and transcripts of the record, a judgement affirming, modifying or reversing the
decision of the Commissioner with or without remanding the case for a rehearing. The finding
of the Commissioner as to any fact, if supported by substantial evidence shall be conclusive...
Section 205(H). reads in pertinent part as follows:
...No findings of fact or decision by the Commissioner shall be reviewed by
any person, tribunal, or government agency except as herein provided. No action
against the United States, the Commissioner or any officer or employee thereof shall
be brought under Section of 1331 or 1346 of Title 28,United States Code, to
recover on any claim arising under this subchaper.
It is therefore, apparent that the only judicial remedy available to an individual on a
claim arising under title XVI of the Act is by a civil action brought against the Commissioer
of the Social Security Administration under Sectin 205(g). supra, and that such an action can be
brought only in a case in which (1) the individual was a part to a hearing before the
Commissioner, i.e. (2) the Commissioner has made a "final decision" on that claim, and
(3) the individual timely commenced a civil action in the proper district court.
Social Security Administration Regulation NO.16 sets forth the adminstrative procedures
by which a claimant for benefits under the Act may obtain a "final decision" of the Commissioner.
Following the initial determination on his claim, a dissatisified claimant may obtain reconsideration thereof. 20 CFR
416.1409. After reconsideration he may request a hearing before an Administrative Law Judge,
and in certain specific instances and upon timely request therefor, has an absolute right to
such hearing. 20 C.F.R. 416.1433, 416.1436.416.1455.
Under certain circumstances, the Administrative Law Judge may dismiss a request for
such a haring. 20 C.F.R. 416.1456, 416,1459. Such dismissal is final and finding, 20 C.F.R.
unless vacated by Appeals Council of the Social Security Administration, either on it's own motion within
60 days after the Administrative Law Judge's Order of dismissal or upon request by the Plaintiff of the Appeals
Council made within 60 days of the dismissal order. ...
NOTE
This is where plaintiff's laptop computer died. Completion of Defendant's
pleading is pending.
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Chris Walters
Plaintiff
Civil Case Number A:99CA0156SS
Kenneth Apfel Commissioner
Social Security Admin
Defendant
Report and Recommendation Of Magistrate Judge
TO: THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommedation to the United States
District court pursuant to 28 U.S.C. 636(b) and Rule 1(e) of Appendix C of the Local
court Rules of the United States District court for the Western District of Texas,
Local Rules For the Assignment of Duties to the United States Magistrate Judges,
effective Janurary 1, 1994 as subsequently amended.
Before this Court is Defendant's Motion to Dismiss Plaintiff's Complaint for Lack of
Subject Matter Jurisdiction (clerk Doc. No 9). This Court recommeds the following:
I. Background
This is a suit for judicial review of the Defendant Commissioner's administrative
determination of non-disability pursuant to 42 U.S.C 405 (g). Plaintiff filed this action
on March 16, 1999. The Administratvie hearing was schedles for June 22nd, 1999, months
after he filed the lawsuit. Furthermore, in a letter dated June 21, 1999, the Plaintiff
notified the Administrative Law Judge McCoy that he was to be absent but requested that
the hearing proceed "on the record and evidence".
II. Analysis
Judicial Review of cases arising under title XVI of the Social Security Act is provided in,
and expressly limited, Sections 205(g) and (h) of the Act, 42 U.S.C. 405(g)(g). Section
205(g) reads:
Any individual after any final decison of the Commissioner made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a review
of such decision by any civil action commenced within sixty days after the mailing to
him of notice of such decision or within such furtehr time as the commissioner may allow
(Emphasis Added).
Under the applicable regulations and pratice, there is a "final decison" of the Commissioner if
the Appeals Council grants a request for review of the Administrative Law Judge's decision made after
a hearing and renders a decision thereon, or if the Appeals Council denies a timely request for
review of any Administrative Law Judge's decision made after a hearing therby constituting the
Administrative Law Judge's decision the "final decison" of of the Commissioner. Only after a
request is made of the Appeals Council to review the decision of the Administrative Law Judge
made after a hearing and such request has been acted upon by the Appeals Council as set forth above
can there be a "final decision" of the Commissioner subject to judicial review within the meaning of
42 U.S.C. 205, 42 U.S.C. 405 (g) incorporated under Section XVI at 1631(c)(3), 42 USC 1383(c)(3),
20 CFt 416 ..
Plaintiff request for judicial review in this case is premature. Plaintiff failed to pursue and
exhaust his administrative remedies as provided by the Act. At the time this case was
filed, there has been no hearing before Administrative Law Judge and no final decision
of the Commissioner. Thus there is no decision subject to judicial review pursuant to Section
205(g) of 42 U.S.C. 405(g) Harper v. Bowden, 813 F.@. 737, 739 (5th cir. 1987). A court
should not review the Commissioner's decison unless the claimant has exhausted
his administrative remedies. McQueen v. Apfel, 168 F. 3d 152, 155(5th Cir 1999)see also Paul v. Shalala
29 F. 3d 208, 210 (5th Cir. 1994) Since failure to exhaust administrative remedies is
jurisdictional, The Court is without jurisdiction to review this case. Only claims for
benefits which are pursued through the initial, reconsideration, hearing, and appeal Council levels in
a timely fashion and have received a final decision of the Commssioner are subject to judicial review
as described by Sectin 205(g) of the Act. Harper.813 F.2d at 739 (5th Cir.1987)
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Chris Walters
Plaintiff
Civil Case Number A:99CA0156SS
Kenneth Apfel Commissioner
Social Security Admin
Defendant
III. Recommendation
The Magistrate Court finds that Plaintiff has not exhausted his administrative remedies as
set for by the Act in that there has been no final decision by the Commission. Therefore, this
Court recommends that Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction by
Granted and Plaintiff's cause of action be Dismissed Without Prejudice.
IV Warning
The parties may file written objections of recommendation made in this report,
and said objections must be made within (10) days from the date of the reciept of this recommendation.
A party filing objectios must specificially identify those findings or recommendations to which
objections are being made. The district court need not consider frivolous, conclusive,
or general objection. See Battle v. US ParoleCommission, 834 F.@nd 419 (5th Cir 1987)
Nettles v. Wainwright 677 f2.d 404, 410 (5th Cir 1982)
Failure to file written objections to the findings and recommendations contained in this report
within the ten day period shall bar an aggrieved party from receiving a de novo, review by the
district court of the findings and recommendations in this report, see 28 U.S.C. 636....However a
failure to object does not limit the appellate court review of legal conclusions made in this
report. Douglas, 65 F.3dat 457; ...The Clerk is directed to mail a copy of the instant recommendations
to all parties by certified mail return reciept requested.
Signed this 15th day of July, 1999
Alan Albright United States Magistrate Judge
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