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Barton v. Berryhill

United States District Court, W.D. Washington, Tacoma

November 15, 2017

HERMAN LEE BARTON JR, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          David W. Christel United States Magistrate Judge

         Plaintiff Herman Lee Barton Jr., proceeding pro se and in forma pauperis, filed this action, seeking to increase the supplemental security income (“SSI”) he receives from the Social Security Administration (“SSA”). Presently before the Court is Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Dkt. 17, 21. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 14.

         The Court concludes Plaintiff failed to exhaust his administrative remedies, has not shown judicial waiver of exhaustion is appropriate, and did not present a colorable constitutional claim. Accordingly, the Court grants Defendant's Motion to Dismiss without prejudice.

         BACKGROUND

         Plaintiff filed this case against Defendant, asking the Court to order Defendant to increase his SSI payments to $1, 775 per month. Dkt. 7, 10, 23. Plaintiff maintains he is unable to meet his “daily needs” on the SSI he currently receives, and such, he should receive a “cost of living” increase. Dkt. 10, p. 4; Dkt. 23, p. 1. Defendant thereafter filed the present Motion to Dismiss, asserting the Court should dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. 17, 21. In particular, Defendant maintains Plaintiff's action should be dismissed because Plaintiff failed to (1) exhaust his administrative remedies, and (2) present a colorable constitutional claim.[1] Id.

         STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 12(b)(1), a party may move for the dismissal of a case for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12. The court must dismiss a complaint under Rule 12(b)(1) if, viewing the factual allegations in the light most favorable to the plaintiff, the underlying action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not fall within one of the other enumerated categories of Article III Section 2 of the Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); see also 28 U.S.C. § 1331 (federal question jurisdiction).

         When considering a Rule 12(b)(1) motion to dismiss, the court “may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 2008) (citations omitted), cert. denied 489 U.S. 1052 (1989). Federal courts are courts of limited jurisdiction, and are presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Therefore, the plaintiff bears the burden of proving the existence of subject matter jurisdiction. Id.

         DISCUSSION

         With regard to social security benefits, a plaintiff must obtain a “final judgment” from the Commissioner of Social Security (“Commissioner”) prior to seeking judicial review in federal district court. Johnson v. Shalala, 2 F.3d 918, 920-21 (9th Cir. 1993); see also 42 U.S.C. § 405(g). If a plaintiff does not obtain a final judgment prior to seeking judicial review, he has failed to exhaust his administrative remedies and the court lacks subject matter jurisdiction over the case. See e.g., Holcomb v. Colvin, 2014 WL 51148, at *2 (W.D. Wash. Jan. 7, 2014). An exception to this general rule, however, allows the court to exercise judicial review if the plaintiff presents a colorable constitutional claim of a due process violation. Califano v. Sanders, 430 U.S. 99, 108-09 (1977); Dexter v. Colvin, 731 F.3d 977, 980-81 (9th Cir. 2013) (citations omitted).

         A. Presentment and Exhaustion

         Defendant first argues this action should be dismissed because Plaintiff failed to exhaust administrative remedies prior to seeking judicial review. Dkt. 17, p. 2.

         Generally, a social security claimant must obtain a “final judgment” from the Commissioner prior to seeking judicial review. Johnson, 2 F.3d at 920-21; see also 42 U.S.C. § 405(g). A final judgment consists of two elements: “the presentment of a claim to the [Commissioner] and the exhaustion of administrative remedies.” Johnson, 2 F.3d at 921; see also Mathews v. Eldridge, 424 U.S. 319, 328 (1975). To satisfy the presentment requirement, a plaintiff must present his claim to the Commissioner “in the manner prescribed by the Commissioner.” See Holcomb, 2014 WL 51148, at *3. The presentment requirement is jurisdictional and cannot be waived by the Commissioner or the courts. Johnson, 2 F.3d at 921; see also Mathews, 424 U.S. at 330. Further, to satisfy the exhaustion requirement, a plaintiff usually must receive an “initial determination regarding entitlement to benefits, reconsideration of that determination, a hearing before an [administrative law judge (“ALJ”)], and review by the Appeals Council of the ALJ's decision.” Id. (citing 20 C.F.R. § 404.900(a); Bass v. Soc. Sec. Admin., 872 F.2d 832, 833 (1988)).

         Once a claimant begins receiving SSI benefits, the amount of his SSI payment is calculated based on formulas set forth in SSA regulations. See 20 C.F.R. §§ 404.204, 404.317. Additionally, the SSA may choose to give SSI recipients a cost-of-living increase. See 20 C.F.R. §§ 404.270-.278. When the SSA decides a cost-of-living increase is appropriate, it is typically given automatically in December to all SSI recipients, although it may also be given during other times of the year under certain circumstances.[2]See ...


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