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Timothy M. v. Berryhill

United States District Court, D. Oregon, Portland Division

May 23, 2019

TIMOTHY M., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Timothy M. (“plaintiff”) has filed a petition seeking reinstatement of Title II Disability Insurance Benefits (“DIB”), which he contends were improperly terminated by the Social Security Administration in June 2015. Compl., ECF #1. Plaintiff filed his petition on March 2, 2018, while he was incarcerated, seeking to have his benefits reinstated immediately upon his anticipated release in July 2018. Id. Plaintiff was released in July 2018 (ECF #13) and his benefits were reinstated in November 2018.

         Because plaintiff failed to exhaust administrative remedies, this court does not have jurisdiction to review the Commissioner's decision. Additionally, plaintiff seeks other relief (e.g., premarital counseling with his fiancé) that do not constitute valid claims under the Social Security Act (“SSA”). Accordingly, the Commissioner's Motion to Dismiss (ECF #42), to which plaintiff has filed no response, should be GRANTED.


         Plaintiff applied for Title II benefits on September 11, 2009, and his application was denied initially and on reconsideration. Decl. of Christianne Voegele (“Voegele Decl.”) 3, ECF #42-1. After a hearing, an administrative law judge (“ALJ”) issued a favorable decision on July 30, 2010. Id., Ex. 1, ECF #42-1, at 4. On June 19, 2015, plaintiff was notified that he was no longer entitled to further disability benefits. Id., Ex. 3, ECF #42-1, at 13.

         Plaintiff filed this action with the court on March 2, 2018. Compl., ECF #1. In a revised determination dated November 16, 2018, plaintiff's disability was determined to be continuing and his benefits were reinstated. Voegele Decl., Ex. 4, ECF #42-1, at 16.


         I. Failure to Exhaust and Subject Matter Jurisdiction

          The Commissioner moves for dismissal pursuant to FRCP 12(b)(1), asserting that the court lacks subject matter jurisdiction because plaintiff failed to exhaust administrative remedies.

         A. Rule 12(b)(1)

         “Federal courts are courts of limited jurisdiction, ” and there is a presumption “that a cause [of action] lies outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court must dismiss a claim if at any time it determines that it lacks subject matter jurisdiction. FRCP 12(h)(3).

         A defendant may move to dismiss for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); see Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 n.2 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004). A facial attack is an assertion that the allegations in the complaint are insufficient to invoke federal jurisdiction. Id. A factual attack is “where ‘the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997) (noting a factual challenge “can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency”) (citation and quotation marks omitted). When a defendant factually challenges the plaintiff's assertion of jurisdiction, the court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Safe Air for Everyone, 373 F.3d at 1039. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n.2.

         B. Social Security Exhaustion Requirement

         “[T]he United States, as sovereign, is immune from suit, save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain suit.” United States v. Dalm, 494 U.S. 596, 608 (1990) (citations and quotation marks omitted); Hercules, Inc. v. United States,516 U.S. 417, 422 (1996). Congress may prescribe the procedures and conditions under which the federal courts may review administrative decisions. City of Tacoma v. Taxpayers of Tacoma,357 U.S. 320, 336 (1958). Congress has expressly provided that under the SSA, an individual may only bring suit after a “final decision of the Commissioner of Social Security.” 42 U.S.C. § 405(g). A final decision requires “complete exhaustion of administrative remedies.” Kildare v. Saenz,325 F.3d 1078, 1082 (9th Cir. 2003) ...

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