United States District Court, W.D. Washington, Tacoma
ORDER DENYING COMMISSIONER'S MOTION TO DISMISS
AND DIRECTING ANSWER BE FILED
HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE
Commissioner filed the instant motion under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. Dkt. 5. The Commissioner included matters
outside the pleadings, namely the Declaration of Nancy Chung,
that the Court found necessary to consider prior to ruling on
the motion. Mr. Smith submitted rebutting evidence
outside the pleadings in the form of records and his
declaration. The Commissioner had an opportunity to reply to
Mr. Smith's response. As such, the Court finds the
parties have had a reasonable opportunity to present all the
material that is pertinent to the motion.
Commissioner contends that the Court lacks jurisdiction to
review Administrative Law Judge (ALJ) Ilene Sloan's order
of dismissal because Mr. Smith failed to exhaust his
administrative remedies and has not presented a colorable
constitutional claim of due process violations. See
Dkt. 5-1 at 22-25.
reasons set forth below, the Court denies the
Smith filed for disability insurance and supplemental
security income benefits on October 16, 2013. Dkt. 5-1 at 2.
The Social Security Administration denied his application
initially on March 3, 2014. Dkt. 5-1 at 3.
April 3, 2014, Mr. Smith filed a Request for Hearing, stating
that he has schizophrenia, bipolar disorder, and attention
deficit disorder. Dkt. 5-1 at 5. At the time, Mr. Smith was
living at a homeless shelter on Highland Avenue in
Shreveport, Louisiana. Smith Decl., Dkt. 12-5 at 1. He lived
at the Highland Avenue address “for two or three
months, ” which suggests that, at the latest, he
stopped living there by early July 2014. Id. When
Mr. Smith “was discharged [he] was told that [he] could
not come back.” Id. After that, Mr. Smith was
homeless for an unspecified period of time, and spent time in
various homeless shelters and medical facilities in
Shreveport and in Arkansas. Id. at 2.
September 17, 2014, the Administration mailed a Notice of
Hearing to Mr. Smith at the Highland Avenue address, advising
him of a hearing scheduled for December 8. Dkt. 5-1 at 22.
The notice contained “a reminder that failing to appear
at his scheduled hearing without good cause could result in
dismissal of the claimant's request for hearing.”
Id. The notice also requested Mr. Smith return an
enclosed Acknowledgement of Receipt form. Id. The
Acknowledgement of Receipt form was not returned.
days after the notice was mailed, on October 2, Mr. Smith was
admitted to the University of Arkansas for Medical Sciences,
where treatment notes state that he reported he “was at
[Recovery Centers of Arkansas] for the past two
weeks….” Dkt. 12-4 at 14.
October 17, Mr. Smith went to an Administration field office
in Little Rock, Arkansas, where he remembers an employee
telling him that he “would need to wait until April
2015 until [he] heard about [his] hearing.” Dkt. 12-5
November 24, the Administration mailed a Notice of Hearing
Reminder to the Highland Avenue address. Dkt. 5-1 at 22. The
reminder notice again warned Mr. Smith that failing to appear
at the time and place of his hearing without good cause could
result in dismissal of his request for hearing. Dkt. 12-1 at
90. The reminder notice included another Acknowledgement of
Receipt form with a request to return it and, again, it was
not returned. Dkt. 5-1 at 22.
Smith did not appear at the hearing on December 8. Dkt. 5-1
at 23. On December 10, a Notice to Show Cause for Failure to
Appear was mailed to the Highland Avenue address. Dkt. 5-1 at
12. On December 17, this notice was returned as
undeliverable. Dkt. 5-1 at 12. “All reasonable efforts,
including a check of new telephone listings, ” failed
to locate Mr. Smith. Dkt. 5-1 at 12. On January 16, 2015, ALJ
Charles Lindsay dismissed Mr. Smith's April 2014 hearing
request for failure to appear. Dkt. 5-1 at 11-12.
April 2, 2015, Mr. Smith, who had moved to Washington in
early 2015, filed a Request for Review of Hearing
Decision/Order. Dkt. 12-5 at 2; Dkt. 5-1 at 13. He wrote
“I'm still disabled and am Homeless and didn't
get a notice.” Dkt. 5-1 at 13. Although Mr. Smith's
request was not timely filed, on October 23, 2015, the
Appeals Council found that “good cause is shown for
late filing[, ]” citing 20 C.F.R. §§ 404.911
and 416.1411, and granted the request for review. Dkt. 5-1 at
17. The Appeals Council did not identify on what grounds it
found good cause for late filing, but the regulations cited
gave examples of “circumstances where good cause may
exist[, ]” including “any physical, mental,
educational, or linguistic limitations” that prevented
the claimant from filing timely or when the claimant
“did not receive notice of the determination or
decision.” 20 C.F.R. §§ 404.911(a)(4),
(b)(7); 416.1411(a)(4), (b)(7).
letter dated December 3 and received December 8, 2015, the
Department of Social and Health Services of the State of
Washington (DSHS) informed the Administration that Mr. Smith
“has moved and he is presently getting his mail at:
General Delivery, Bellingham WA 98225.” Dkt. 12-1 at
55. The letter described mental health hospitalizations and
emergency room visits in October and November at Fairfax
Hospital in Everett, Northsound in Sedro Woolley, and St.
Joseph in Bellingham, and asked the Administration to request
records from those institutions. Id. The letter also
stated that Mr. Smith “does not have a SSI attorney at
this time.” Id. The Administration did not
request the records.
remand from the Appeals Council, ALJ Ilene Sloan dismissed
Mr. Smith's hearing request on March 18, 2016. Dkt. 5-1
at 22-25. ALJ Sloan “considered the mailbox rule”
to determine that “[p]resumably, the claimant received
the Notice of Hearing and Reminder notices that were ...