United States District Court, D. Arizona
A. TEILFRORG SENIOR UNITED STATES DISTRICT JUDGE
issue is Defendant Commissioner of Social Security
Administration's (hereinafter, “Defendant”)
Motion to Dismiss the Complaint Pursuant to Fed.R.Civ.P.
12(b)(1) (Doc. 31). For the reasons set forth below, the
Court will dismiss Plaintiff's Complaint for lack of
24, 2010, Plaintiff filed an application for disability
benefits under Title II of the Social Security Act. (Doc.
31-1 at 3). Plaintiff's application was denied at the
initial level on November 17, 2010, (Doc. 31-2 at 2-5), and
at the reconsideration level on March 21, 2011, (Doc. 31-3 at
2-4). Following a hearing on December 9, 2011, the
Administrative Law Judge (ALJ) issued a fully favorable
decision on May 25, 2012, finding Plaintiff was disabled
since February 22, 2009-her alleged onset date. (Doc. 31-4 at
2-14). That same day, on May 25, 2012, the Social Security
Administration (SSA) issued a Notice of Decision to Plaintiff
informing her that if she wished to appeal the fully
favorable decision, she must file a request for review with
the Appeals Council within 60 days from the date she received
the Notice of Decision. (Id. at 2). The Chief of
Court Case Preparation and Review Branch 1 of the Office of
Appellate Operations at the SSA avers, however, that
“[t]here is no record that the plaintiff requested
Appeals Council review of the May 25, 2012 decision, and the
Council has taken no action to review the decision on its own
motion.” (Doc. 31-1 at 3). The SSA sent Plaintiff a
Notice of Award on June 29, 2012, notifying Plaintiff that
she was entitled to monthly Title II benefit payments
beginning August 2009. (Doc. 31-5 at 2).
August 2, 2018, Plaintiff filed a civil action in this Court
seeking review of a decision regarding disability insurance
benefits under Title II of the Social Security Act. (Doc. 1
at 2). Plaintiff claims that the
Commissioner's factual findings are not supported by
substantial evidence because “the record shows that
Plaintiff's disability began June 1, 1998 and not that of
the date the Commissioner found which is  February
2009.” (Id. at 3). In response to the question
in the Complaint asking when Plaintiff received notice that
the Commissioner's decision was final, Plaintiff wrote
“unknown.” (Id.). Plaintiff also did not
attach to her Complaint any copy of the Commissioner's
alleged final decision, nor a copy of any notice informing
her that her appeal was denied by the Appeals Council.
February 22, 2019, Defendant filed a Motion to Dismiss the
Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) (hereinafter,
“Motion”). (Doc. 31). Defendant argues the Court
does not have jurisdiction to review the SSA's decision
under 42 U.S.C. § 405(g) because Plaintiff has failed to
fully exhaust her administrative remedies. (Id. at
1-2). On March 22, 2019, Plaintiff filed a response (Doc. 36)
to Defendant's Motion. Plaintiff's response to
Defendant's Motion does not address jurisdiction, nor
discuss whether she exhausted her administrative remedies
prior to filing her Complaint. (See Doc. 36). Defendant
did not file any reply in support of its motion.
defense of lack of subject matter jurisdiction may be raised
at any time by the parties or by the court. See Fed.
R. Civ. P. 12(h)(3). Under Rule 12(b)(1) of the Federal Rules
of Civil Procedure, dismissal is appropriate when the court
lacks subject matter jurisdiction over a claim. Fed.R.Civ.P.
12(b)(1). “Federal courts are courts of limited
jurisdiction” and may only hear cases as authorized by
the Constitution or Congress. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations
omitted). “It is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations
omitted); see also Indus. Tectonics, Inc. v. Aero
Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (“The
party asserting jurisdiction has the burden of proving all
jurisdictional facts.”) (citing McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936);
Fenton v. Freedman, 748 F.2d 1358, 1359 n.1 (9th
Cir. 1984)). Accordingly, on a motion to dismiss for lack of
subject matter jurisdiction, the plaintiff must demonstrate
that subject matter jurisdiction exists to defeat dismissal.
considering a motion to dismiss pursuant to Rule 12(b)(1),
the district court may review any evidence to resolve factual
disputes concerning the existence of jurisdiction.
McCarthy v. United States, 850 F.2d 558, 560 (9th
Cir. 1988) (citing Land v. Dollar, 330 U.S. 731, 735
n. 4 (1947) (“[W]hen a question of the District
Court's jurisdiction is raised . . . the court may
inquire by affidavits or otherwise, into the facts as they
United States and its agencies, including the SSA, are immune
from suit absent a waiver. Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 475 (1994). “Sovereign
immunity is jurisdictional in nature.” Id.
“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). “[W]here a
statute creates a right and provides a special remedy, that
remedy is exclusive.” United States v.
Babcock, 250 U.S. 328, 331 (1919).
Social Security Act provides the sole avenue for judicial
review of any claim arising under the Act, including claims
under Titles II and XVI. See 42 U.S.C. § 405(h)
(“No findings of fact or decision of the Commissioner
of Social Security shall be reviewed by any person, tribunal,
or governmental agency except as herein provided.”).
The remedy provision in section 405(g) provides, in relevant
Any individual, after any final decision of the
Commissioner of Social Security 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 of Social Security may allow. . . .
42 U.S.C. § 405(g) (emphasis added). “This
provision clearly limits judicial review to a particular type
of agency action, a ‘final decision of the Secretary
made after a hearing.'” Califano v.
Sanders, 430 U.S. 99, 108 (1977); see ...