United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge
Norman Beaudreau brought suit seeking judicial review,
pursuant to 42 U.S.C. § 405(g), of the decision of the
Social Security Administration to deny him social security
retirement benefits under the Windfall Elimination Provision.
The Acting Commissioner moves to dismiss on the ground that
the court lacks subject matter jurisdiction. Beaudreau filed
an untimely response to the motion. The Acting Commissioner
filed a reply.
of Review For purposes of a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), the court
credits the plaintiff's properly pleaded allegations and
draws all reasonable inferences in the plaintiff's favor.
Reddy v. Foster, 845 F.3d 493, 497 (1st Cir. 2017).
In addition to the complaint, the court considers other
materials and evidence in the record “whether or not
the facts therein are consistent with those alleged in the
complaint.” Id.; see also Torres-Negron
v. J&N Records, LLC, 504 F.3d 151, 163 (1st Cir.
2007). When subject matter jurisdiction is challenged, the
party asserting subject matter jurisdiction, the plaintiff in
this case, has the burden of showing that jurisdiction
exists. Acosta-Ramirez v. Banco Popular de P.R., 712
F.3d 14, 20 (1st Cir. 2013).
support of the motion to dismiss, the Acting Commissioner
contends that the underlying administrative action, the
Appeals Council's order dated January 13, 2017, is not a
“final decision” of the Acting Commissioner of
Social Security under § 405(g). As a result, the Acting
Commissioner asserts, the order is not subject to judicial
review so that the court lacks subject matter jurisdiction in
this case. Beaudreau does not address subject matter
jurisdiction directly and instead argues that the Acting
Commissioner has mischaracterized the relief that he is
seeking through judicial review and challenges the
administrative procedure used to process his requests for
reconsideration of administrative decisions.
January 13 order, the Appeals Council held that the
Administrative Law Judge (“ALJ”) erred in
considering Beaudreau's challenge to the calculation of
benefits and should have considered only whether Beaudreau
was entitled to readjudication under Acquiescence Ruling
(“AR”) 12-1(8). The Appeals Council determined
that Beaudreau was not entitled to readjudication under AR
12-1(8), and, as a result, the ALJ should have dismissed
Beaudreau's claim. The Appeals Council retroactively
dismissed Beaudreau's request for a hearing, making the
ALJ's decision of no effect, and reinstated the decision
issued on October 28, 2008, as the final decision of the
court has jurisdiction to review final decisions of the
Commissioner of Social Security. § 405(g). “Absent
a constitutional claim, [the court] lack[s] jurisdiction to
review the Secretary's refusal to reopen a prior
adjudicated claim.” Dvareckas v. Sec'y of
Health & Human Servs., 804 F.2d 770, 771 (1st Cir.
1986) (citing Califano v. Saunders, 430 U.S. 99
(1977)). An agency action, without a hearing, is not a final
decision of the Commissioner for purposes of § 405(g).
Rios v. Sec'y of Health, Ed., & Welfare, 614
F.2d 25, 26 (1st Cir. 1980). In addition, a decision to
retroactively dismiss a request for a hearing is not a final
decision that is subject to judicial review under §
405(g). Hockridge v. Barnhart, 44 Fed.Appx. 107
(D.C. Cir. 2002); Morris v. Colvin, 183 F.Supp.3d
1133, 1136 (D. Colo. 2016).
states that there is “no question” that the
Appeals Council's decision was final and that the Acting
Commissioner is “splitting hairs” in the
characterization of his claim. He has not shown, however,
that the Appeals Council's decision was a final decision
within the meaning of § 405(g) and, for that reason, has
not carried his burden to show that subject matter
jurisdiction exists. In the absence of subject matter
jurisdiction, the court cannot review the Appeals
foregoing reasons, the defendant's motion to dismiss
(document no. 5) is granted, and the case is dismissed for
lack of subject matter jurisdiction.
clerk of court shall enter judgment accordingly and close the