United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION TO
W. Christel United States Magistrate Judge
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.
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.
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
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
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.
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).
Presentment and Exhaustion
first argues this action should be dismissed because
Plaintiff failed to exhaust administrative remedies prior to
seeking judicial review. Dkt. 17, p. 2.
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,
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.See ...