(SS)(PS) Hall v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: August 17, 2023
• Docket: 2:19-cv-00132
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANQUENITA SCHTEKA HALL, No. 2:19-CV-0132-DMC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding pro se, brings this action for judicial review of a final 19 decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the 20 written consent of all parties, this case is before the undersigned as the presiding judge for all 21 purposes, including entry of final judgment. See 28 U.S.C. § 636(c); see also ECF No. 30 22 (minute order reassigning case to Magistrate Judge). Pending before the Court is Defendant’s 23 motion to dismiss, ECF No. 26. Also before the Court are: (1) Plaintiff’s motion for default 24 judgment, ECF No. 31; (2) Plaintiff’s motion to enforce entry of default, ECF No. 43; and (3) 25 Plaintiff’s motion for decision, ECF No. 49. 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL HISTORY 2 Plaintiff initiated this action with a pro se complaint. See ECF No. 1. Thereafter, 3 the Court directed service on Defendant. See ECF No. 4. The Court also issued a scheduling 4 order. See ECF No. 6. Upon Plaintiff’s failure to comply with the Court’s order for Plaintiff to 5 submit service documents to the United States Marshal, the Court directed Plaintiff to show 6 cause in writing why this action should not be dismissed for lack of prosecution. See ECF No. 9. 7 Plaintiff responded with a notice of compliance and the Court discharged the order to show 8 cause. See ECF No. 13. 9 Plaintiff then filed a first amended complaint as of right pursuant to Federal Rule 10 of Civil Procedure 15. See ECF No. 16. Again, the Court authorized service and directed 11 Plaintiff to submit documents necessary for service of process by the United States Marshal. See 12 ECF No. 17. Plaintiff complied. See ECF No. 21. Summons was thereafter returned executed. 13 See ECF No. 22. After Defendant failed to respond within the time permitted under the Federal 14 Rules of Civil Procedure, Plaintiff sought entry of default. See ECF No. 24. The Clerk of the 15 Court then entered Defendant’s default. See ECF No. 25. Fifteen days later, Defendant filed the 16 currently pending motion to dismiss the first amended complaint for lack of subject matter 17 jurisdiction. See ECF No. 26. Plaintiff filed an opposition. See ECF No. 27. Plaintiff also filed 18 a motion for default judgment. See ECF No. 31. Defendant filed an opposition. See ECF No. 19 32. 20 While Defendant’s motion to dismiss and Plaintiff’s motion for default judgment 21 were pending, mail directed to Plaintiff was returned undeliverable. Plaintiff failed to file a 22 notice of change of address within the time specified in the local rules and the Court dismissed 23 the action for lack of prosecution. See ECF No. 34. Almost a year later, Plaintiff filed a notice 24 of change of address and motion to re-open the case. See ECF Nos. 37, 38, 39. The Court 25 granted Plaintiff’s motion and re-opened the case. See ECF No. 41. Thereafter, Plaintiff filed a 26 motion to enforce the previously entered default. See ECF No. 43. Defendant filed an 27 opposition. See ECF No. 45. Plaintiff has also filed a motion asking the Court to render a 28 decision on her motion to enforce the default. See ECF No. 49. Plaintiff then filed a second 1 amended complaint without stipulation or leave of Court. See ECF No. 50 (docketed as first 2 amended complaint). 3 4 II. DISCUSSION 5 A. Default 6 As outlined above, the Clerk of the Court has entered Defendant’s default and 7 Plaintiff seeks a default judgment. In opposition to Plaintiff’s motion for default judgment, 8 Defendant asks that the Court set aside the previously entered default based on excusable neglect 9 in timely filing Defendant’s motion to dismiss arguing lack of subject matter jurisdiction. See 10 ECF No. 32, pg. 2. Based on Defendant’s representation, the Court finds good cause to set aside 11 the previously entered default. See Fed. R. Civ. P. 55(c). Plaintiff’s motions for a default 12 judgment, to enforce entry of default, and for a decision thereon will be denied as moot. 13 B. Subject Matter Jurisdiction 14 Before addressing Defendant’s contention that the Court lacks subject matter 15 jurisdiction over this action, the Court addresses the improperly filed second amended complaint. 16 Because that pleading was filed absent a stipulation or leave of Court it will be stricken. See, e.g., 17 Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011) (striking fourth 18 amended complaint: “If an amended pleading cannot be made as of right and is filed without 19 leave of court or consent of the opposing party, the amended pleading is a nullity and without 20 legal effect.”); Sexton v. Spirit Airlines, Inc., Case No. 2:21-cv-00898-TLN-AC, 2022 WL 21 976914 (E.D. Cal. March 31, 2022) (striking amended complaint); Guthrie v. Hurwitz, Case No. 22 1:18-cv-00282-AWI-BAM, 2018 WL 4005261, at *1 (E.D. Cal. Aug. 20, 2018) (striking 23 amended complaint). 24 The Court now turns to Defendant’s argument that the operative first amended 25 complaint at ECF No. 16 fails to invoke this Court’s subject matter jurisdiction to review a final 26 decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 27 / / / 28 / / / 1 A motion under Rule 12(b)(1), such as the currently pending motion to dismiss, 2 challenges a federal court’s jurisdiction to decide claims alleged in the complaint. See Fed. R. 3 Civ. P. 12(b)(1). The motion may be a factual attack that looks beyond the pleadings to challenge 4 “the substance of a complaint’s jurisdictional allegations despite their formal sufficiency.” White 5 v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th 6 Cir. 1989). When considering a factual attack on subject-matter jurisdiction, “[n]o presumptive 7 truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not 8 preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill 9 Pub. Co. Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). “[T]he district court 10 may review evidence beyond the complaint without converting the motion to dismiss into a 11 motion for summary judgment.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 12 2004). 13 In support of Defendant’s motion to dismiss, Defendant submits the declaration of 14 Christianne Voegele, the Chief of Court Case Preparation and Review of the Office of Appellate 15 Operations for the Social Security Administration. See ECF No. 26-1. The exhibits attached to 16 Ms. Voegele’s declaration establish that Plaintiff received a fully favorable decision from an 17 Administrate Law Judge on March 29, 2009, determining that Plaintiff has been disabled since 18 August 25, 2005. See id. at 4-12 (Exhibit 1 to Voegele declaration). Plaintiff was provided 19 notice that she had a right to seek review by the Appeals Council within 60 days of the date of the 20 Administrate Law Judge’s decision. See id. Ms. Voegele also states that the agency’s records 21 indicate that Plaintiff never filed a request for review by the Appeals Council. See id. at 3. 22 Based on these facts, Defendant argues:

23 The Court must dismiss claims over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1), (h)(3) (“Whenever it appears by 24 suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). A court lacks 25 subject matter jurisdiction if (1) the cause does not “arise under” any federal law or the United States Constitution, (2) there is no case or 26 controversy within the meaning of that constitutional term, or (3) the cause is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 27 186, 198 (1962). Plaintiff bears the burden of proving that subject matter jurisdiction exists. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 28 F.2d 730, 733 (9th Cir. 1979). 1 * * * 2 Plaintiff alleges jurisdiction based on 42 U.S.C. § 405(g). The Act 3 provides that claimants must exhaust all available administrative remedies before seeking judicial review of any such claim. 42 U.S.C. § 405(g). 4 “Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” 5 McCarthy v. Madigan, 503 U.S. 140, 145 (1992). The exhaustion requirement is “grounded in deference to Congress’ delegation of 6 authority to coordinate branches of Government,” and recognizes that “agencies, not the courts, ought to have primary responsibility for the 7 programs that Congress has charged them to administer.” Id. The exhaustion requirement also reflects the “commonsense notion” that “an 8 agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal 9 court.” Id. Judicial review pursuant to Section 405(g) requires a “final decision of the Commissioner of Social Security.” The SSA regulations 10 provide that a claimant must complete a four-step administrative review process to obtain a judicially reviewable final decision. 20 C.F.R. § 11 404.900(a). If at any point the claimant does not pursue administrative appeal rights, the last administrative determination or decision becomes 12 binding. 20 C.F.R. §§ 404.905, 404.921, 404.955, 404.981, 416.1405, 416.1421, 416.1455, 416.1481; see also 20 C.F.R. §§ 404.901, 416.1401 13 (defining “determination” and “decision”). The complaint in the instant action must be dismissed because 14 Plaintiff never requested Appeals Council review of the March 29, 2009 ALJ decision (Voegele Dec., ¶ 3(a)-(b); Ex. 1). Instead of exercising her 15 right to request Appeals Council review as provided by the notice with the ALJ’s decision (Ex. 1, Pg. 1), Plaintiff prematurely filed her appeal 16 with this Court. See Doc. No. 1. Consequently, this case should be dismissed as there is no “final decision” by the agency, and thus, no 17 subject matter jurisdiction. See 20 C.F.R. § 404.900(a)(5) (“When you have completed the steps of the administrative review process . . . we will 18 have made our final decision. If you are dissatisfied with our final decision, you may request judicial review by filing an action in a Federal 19 district court”).

20 ECF No. 26, pgs. 2-3. 21 Defendant’s argument is well-taken. As Defendant notes, under the regulations, 22 administrative exhaustion is prerequisite to this Court’s subject matter jurisdiction. See 23 McCarthy, 503 U.S. at 145. To obtain a final decision which the Court has subject matter 24 jurisdiction to review under § 405(g), Plaintiff must have sought review by the Appeals Counsel. 25 See 20 C.F.R. § 404.900(a). Because Plaintiff failed to complete the administrative exhaustion 26 process by seeking review by the Appeals Counsel within 60 days of the date of the Administrate 27 Law Judge’s decision, there is no final order for this Court to review and, as a consequence, this 28 Court lacks subject matter jurisdiction. 1 Il. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. Defendant’s default entered by the Clerk of the Court, ECF No. 25, is set 4 || aside. 5 2. Plaintiff's motion for default judgment, ECF No. 31, is DENIED as moot. 6 3. Plaintiff's motion to enforce entry of default, ECF No. 43, is DENIED as 7 || moot. g 4. Plaintiff's motion for decision, ECF No. 49, is DENIED as moot. 9 5. Plaintiff's second amended complaint, ECF No. 50, is STRICKEN. 10 6. Defendant’s motion to dismiss, ECF No. 26, is GRANTED. 11 7. This action is DISMISSED for lack of subject matter jurisdiction. 12 8. The Clerk of the Court is directed to enter judgment and close this file. 13 14 || Dated: August 17, 2023 Ss.cqao_ 15 DENNIS M. COTA 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28