explaining that "a factual challenge lies where the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction" (internal quotation marks omitted)
How later courts described this case
- explaining that "a factual challenge lies where the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction" (internal quotation marks omitted)
- stating that "when evaluating a facial challenge to subject matter jurisdiction under Rule 12(b)(1), a court should use Twombly-Iqbal's 'plausibility' requirement, which is the same standard used to evaluate facial challenges to claims under Rule 12(b)(6)"
- SEC ALJs were officers of the United States and thus their appointments were unconstitutional because the appointing official was not one specified by the Appointments Clause
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
REBECCA BALL, )
)
Plaintiff, )
)
v. ) CIVIL NO. 1:20cv245
)
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant. )
OPINION AND ORDER
This matter is before the Court on motion to dismiss for lack of subject matter jurisdiction,
filed by the Defendant on September 2, 2020. Plaintiff filed a response to the motion on
September 25, 2020. Defendant has declined to file a reply.
Discussion
On January 3, 2020, after her application for Social Security benefits was denied, Plaintiff
filed suit in this court, in Civil No. 1:20cv9-DRL. On this same date, Plaintiff filed a motion for
leave to proceed in forma pauperis. This motion was denied on January 8, 2020, and Plaintiff
was instructed to pay the filling fee on or before February 11, 2020. On February 18, 2020, the
Court dismissed Plaintiff’s case for failure to timely pay the filing fee.
On July 1, 2020, Plaintiff filed the instant action, titled “Complaint for Mandamus to
Require the Commissioner of the Social Security Administration to Hold a Hearing (Presided by a
Constitutionally Appointed Administrative Law Judge) in Relation to the Denial [of] Plaintiff’s
Disability Insurance Benefits Application”. Plaintiff asserts jurisdiction pursuant to Article III of
the United States Constitution and 28 U.S.C. 1331. Plaintiff further asserts that jurisdiction arises
under the Mandamus Act, 28 U.S.C. 1361.
The gist of Plaintiff’s current complaint is that the hearing in her dismissed case was not
held before a “duly appointed ALJ” as required by the Appointments Clause of the Constitution.
See Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018)(SEC ALJs were
officers of the United States and thus their appointments were unconstitutional because the
appointing official was not one specified by the Appointments Clause). Plaintiff thus seeks a writ
of mandamus requiring, inter alia, the Defendant to afford Plaintiff a hearing before a duly
appointed ALJ. In essence, Plaintiff is seeking a do-over because she missed the filing fee
deadline in her appeal to this Court of the denial of benefits.
The Defendant has filed a motion to dismiss for lack of subject matter jurisdiction,
presumably pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.1 A motion to
dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the existence of subject matter
jurisdiction. See FED. R. CIV. P. 12(b)(1). The party invoking federal jurisdiction bears the
burden of establishing that jurisdiction is proper. See Remijas v. Neiman Marcus Grp., LLC, 794
F.3d 688, 691 (7th Cir. 2015); Schmidt v. Waterstone Bank SSB, 753 F. App'x 414, 416 (7th Cir.
2019). When a defendant challenges the sufficiency of the allegations concerning subject matter
1 Defendant’s “Opposition to and Motion to Dismiss Plaintiff’s Complaint”, without citing
to any Federal Rule of Civil Procedure, simply states:
“To the extent that this Complaint seeks review of the Commissioner’s decision
pursuant to 42 U.S.C. Section 405(g), this action was untimely because it was not
brought within sixty days of the decision becoming final, and this Court therefore
lacks subject matter jurisdiction.
To the extent that Plaintiff’s Complaint is treated as an action for mandamus,
this Court should dismiss Plaintiff’s Complaint because this Court does not have
subject-matter jurisdiction under the Mandamus Act, 28 U.S.C. Section 1361.”
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jurisdiction, the court accepts all well-pleaded factual allegations as true and draws all reasonable
inferences in favor of the plaintiff. Remijas, 794 F.3d at 691; Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009); Silha v. ACT, Inc., 807 F.3d 169, 174 (7th
Cir. 2015) (stating that "when evaluating a facial challenge to subject matter jurisdiction under
Rule 12(b)(1), a court should use Twombly-Iqbal's 'plausibility' requirement, which is the same
standard used to evaluate facial challenges to claims under Rule 12(b)(6)"). If a defendant
factually challenges the basis for federal jurisdiction, however, the court "may properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction exists." Apex
Digital, 572 F.3d at 444; see also id. (explaining that "a factual challenge lies where the complaint
is formally sufficient but the contention is that there is in fact no subject matter jurisdiction"
(internal quotation marks omitted)). "When facts relevant to subject-matter jurisdiction are
disputed, the plaintiff must establish those facts by a preponderance of the evidence." Miller v.
Fryzel, 499 F. App'x 601, 603 (7th Cir. 2013).
The first question is whether this Court has jurisdiction pursuant to the Social Security
Act. Plaintiff asserts that “[t]his case arises under the Social Security Act and under regulations
promulgated pursuant to the Act...”. It is well settled that “the United States, as sovereign, ‘is
immune from suit save as it consents to be sued…and the terms of its consent to be sued in
any court define that court’s jurisdiction to entertain the suit.’” Lehman v. Nakshian, 453 U.S.
156, 160 (1981). Congress may prescribe the procedures and conditions under which, and the
courts in which, judicial review of administrative order may occur. Tacoma v. Taxpayers of
Tacoma, 357 U.S. 320, 336 (1958). Congress provided the parameters of judicial review of final
3
decisions on claims arising under Title II or Title XVI of the Social Security Act in sections
205(g) and (h) of the Social Security Act. 42 U.S.C. § 405(g) and (h). The remedy provided by
section 205(g) is exclusive. The relevant provisions of section 205(g) state:
(g) Any individual, after any final decision of the Commissioner made after a
hearing to which he was a party, irrespective of the amount in controversy, may
obtain a review of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within such further time as
the Commissioner may allow. * * *
(h) The findings and decision of the Commissioner after a hearing shall be binding
upon all individuals who were parties to such hearing. No findings of fact or
decision of the Commissioner shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action against the United
States, the Commissioner, or any officer or employee thereof shall be brought
under section 1331 or 1346 of Title 28 to recover on any claim arising under this
subchapter
.
42 U.S.C. § 405; see also 42 U.S.C. § 1383(c)(3) (incorporating the provisions of 42 U.S.C.
405(g) into Title XVI of the Social Security Act).
Thus, the only civil action permitted on any claim arising under Title II or Title XVI of the
Social Security Act is an action to review the “final decision of the Commissioner made after a
hearing…,” and such action must be “commenced within sixty days after the mailing to him [the
party bringing the action] of notice of such decision or within such further time as the
Commissioner may allow.” The Appeals Council’s notice of the denial of benefits was dated
November 7, 2019. Thus, Plaintiff was required to file her complaint on or before January 13,
2020.
Although Plaintiff’s original complaint, Civil No. 1:20cv9-DRL, was timely filed (and then
subsequently dismissed for failure to pay the filing fee), Plaintiff’s present case was not filed until
July 1, 2020, well after the January 13, 2020 deadline. As the Social Security Act provides a
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limited basis for this Court’s jurisdiction, which is not met in the present case, this court finds that
it does not have subject matter jurisdiction over the present case pursuant to the Social Security
Act.
Next, this Court must determine if it has subject matter jurisdiction pursuant to the
Mandamus Act, 28 U.S.C. § 1361, which states:
The district courts shall have original jurisdiction of any action in the nature of
mandamus to compel an officr or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.
The United States Supreme Court has left open the question of whether mandamus jurisdiction is
automatically precluded by 42 U.S.C. § 405(h). Your Home Visiting Nurse Servs. v. Shalala, 525
U.S. 449, 456 n.3 (1999); Heckler v. Ringer, 466 U.S. 602, 616 (1984). However, it is
nevertheless clear that relief under the Mandamus Act is unavailable in the present case. “The
common-law wit of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy
for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes
him a clear nondiscretionary duty.” Heckler, 466 U.S. at 616; Iddir v. INS, 301 F.3d 492, 499
(7th Cir. 2002).
Defendant argues that mandamus relief is not appropriate because Plaintiff failed to raise
her challenge to the ALJ at any point in the administrative proceedings or in her prior civil action,
Civil No. 1:20cv9-DRL. Plaintiff states in response that “[a]dministrative remedies are futile
because the agency believes a proper hearing was held even in the face of an agency wide
admission ALJ’s were not properly appointed.” However, Defendant informs that court that on
July 16, 2018, the acting Commissioner ratified the appointment of Social Security ALJ’s and
5
Appeals Council administrative appeals judges and approved their appointments as her own in
order to address any Appointments Clause questions involving Social Security claims. 84
Fed.Reg. 9582-02 (Mar. 15, 2019). In her Complaint for Mandamus, Plaintiff requests that the
Commissioner be required to present documents which evidence the proper appointment of the
ALJ. However there is no allegation that Plaintiff ever requested such documents during the
pendency of her case before the Agency, or in her Complaint to this Court in Civil No. 1:20cv9-
DRL. Rather, this only became an issue after Plaintiff missed the deadline for paying her filing fee
and her case was dismissed. Clearly, Plaintiff’s failure to assert a challenge to the ALJ’s
appointment before the agency at any point in the administrative proceedings leads to forfeiture of
her Appointments Clause claim. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952); Davis v. Saul, 963 F.3d 790 (8th Cir. 2020); Carr v. Comm’r SSA, 961 F.3d 1267 (10th
Cir. 2020); but see Cirko v. Comm’r of Soc. Sec., 948 F.3d 148 (3rd Cir. 2020)(finding no
forfeiture). Accordingly, the Complaint for Mandamus will be dismissed.
Conclusion
On the basis of the foregoing, Defendant’s motion to dismiss [DE 7] is hereby
GRANTED.
Entered: November 11, 2020.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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