United States District Court, D. New Hampshire
Leeland E. Eisenberg
Nancy A. Berryhill, Acting Commissioner, Social Security Administration
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
plaintiff Leeland Eisenberg initially brought this action in
New Hampshire Circuit Court, seeking to recover $659.70 that
he believes the Social Security Administration
(“SSA”) improperly withheld from him in September
2016. SSA removed the matter to this court and moved to
dismiss on the basis that Eisenberg did not exhaust his
administrative remedies. Eisenberg objected to that motion
and filed a cross motion for summary judgment. Both motions
were referred to the undersigned magistrate judge for
proposed findings of fact and a recommendation as to
October 20, 2017, the undersigned issued a Report and
Recommendation concluding that the court lacked
subject-matter jurisdiction over Eisenberg's claim.
Rather than dismiss the action, however, the court
recommended that it be remanded back to the New Hampshire
Circuit Court. The court further recommended that both the
motion to dismiss and cross motion for summary judgment be
denied as moot.
moves for reconsideration, arguing that the court erred in
recommending that this matter be remanded. Concluding that
its previous Report and Recommendation was based on an error
of law, the court recommends that SSA's motion
reconsideration be granted. The court further recommends, for
the reasons stated below, that the district judge grant
SSA's motion to dismiss.
Motion for Reconsideration
is “an extraordinary remedy which should be used
sparingly.” Palmer v. Champion Mtg., 465 F.3d
24, 30 (1st Cir. 2006) (citation and internal quotation marks
omitted). Reconsideration is appropriate “only in a
limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573
F.3d 42, 53 (1st Cir. 2009).
argues that this court's earlier Report and
Recommendation was based on a manifest error of law.
Specifically, SSA contends that this court has an independent
basis for jurisdiction over this action under 28 U.S.C.
§ 1442, which allows “[t]he United States or any
agency thereof or any officer (or any person acting under
that officer) of the United States or any agency thereof, in
an official or individual capacity” to remove to
federal court any action commenced in state court.
Id. § 1442(a)(1). SSA further argues that it
has raised a sovereign immunity defense, and that such
defenses, when raised by the United States government, must
be heard in a federal forum. Finally, SSA contends that
federal courts have exclusive jurisdiction to review federal
agency action. Thus, SSA argues that the New Hampshire
Circuit Court “has no jurisdiction to decide any issue
in this case.” Doc. no. 11 at 5.
court concludes, largely for the reasons stated in SSA's
motion, that the New Hampshire Circuit Court does not have
jurisdiction to hear this action. Thus, the court erred in
recommending that this matter be remanded to that court for
disposition. This does not end the court's inquiry,
however, as the court still must determine whether it lacks
jurisdiction over this matter based on the derivative
jurisdiction doctrine. Under that doctrine, “[w]here
the state court lacks jurisdiction of the subject matter or
of the parties, the federal court acquires none, although in
a suit originally brought in a federal court it would have
had jurisdiction.” State of Minn. v. United
States, 305 U.S. 382, 389 (1939).
has expressly abrogated the derivative jurisdiction doctrine
for cases removed under 28 U.S.C. § 1441. See
id. § 1441(f). But courts have found, particularly
in the wake of the 2002 amendment to that section, that the
doctrine still applies to cases removed under § 1442.
See, e.g., Scallop Shell Nursing & Rehab. v.
Gaffett, No. 13-cv-471 ML, 2013 WL 5592736, at *5
(D.R.I. Oct. 10, 2013) (citing cases); 14 Charles A. Wright,
et al., Federal Practice and Procedure, § 3655
(4th ed.) (“The amendments to Section 1441, eliminating
the derivative jurisdiction bar, left Section 1442
untouched.”). Thus, before the court may consider
SSA's motion to dismiss, it must first determine under
which of these provisions SSA removed this matter.
notice of removal, SSA invokes both § 1441 and §
1442(a)(1). See doc. no. 1 ¶ 3. Other courts have
concluded that when there is an independent basis for removal
under each provision, the derivative jurisdiction doctrine
does not apply. See, e.g., Bloch v. Exec. Office
of the President, 164 F.Supp.3d 841, 854 (E.D. Va 2016),
reconsideration denied sub nom. Bloch v. Exec. Office of
President, No. 1:15-cv-1146, 2016 WL 8224913 (E.D. Va.
Mar. 10, 2016) (“Because defendants removed Count IV,
in part, based on § 1441(a), § 1441(f) confers
subject matter jurisdiction.”). Here, SSA had an
independent basis to remove this action under § 1441
based on this court's federal-question jurisdiction. Such
jurisdiction extends to “all civil actions arising
under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Because Eisenberg's
claims are predicated on his interest in obtaining benefits
to which he contends he is entitled under the Social Security
Act (the “Act”), they “arise under”
that act. See Justiniano v. Soc. Sec. Admin., 876
F.3d 14, 22 (1st Cir. 2017). The court may therefore consider
SSA's motion to dismiss on the merits.
motion for reconsideration (doc. no. 11) should accordingly
be granted in full.
Motion to Dismiss
moves to dismiss this action pursuant to Federal Rule of
Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction. In considering such a motion, the court accepts
as true all well-pleaded factual allegations in the complaint
and draws all reasonable inferences therefrom in the
plaintiff's favor. See Reddy v. Foster, 845 F.3d
493, 497 (1st Cir. 2017). The court may also consider other
materials and evidence in the record “whether or not
the facts therein are consistent with those alleged in the
complaint.” Id. When subject-matter
jurisdiction is challenged, the party invoking jurisdiction
has the burden of showing that it exists. Acosta-Ramirez
v. Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir.
contends that Eisenberg has failed to exhaust his
administrative remedies. Specifically, SSA contends that its
decision to suspend Eisenberg's September 2016
Supplementary Social Security Income (“SSI”) did