United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
before the Court is Defendant Commissioner of Social Security
Administration’s (the “Administration”)
Motion to Dismiss under Federal Rule of Civil Procedure
(“Rule”) 12(b)(1) for lack of subject matter
jurisdiction. (Doc. 10). Plaintiff Brandon Dykens
(“Plaintiff”) has responded (Doc. 13), Defendant
has not replied. The Court now rules on the motion.
filed for Social Security benefits under both Title II and
Title XVI on August 1, 2017. (Doc. 10-1 at 3). The
Administration, on October 14, 2017, denied both claims.
(Id. at 4, 8). Plaintiff requested a
reconsideration, but the Administration denied his claims
again on January 11, 2018. (Id. at 12).
five months later, on June 20, 2018, Plaintiff requested a
hearing before an Administrative Law Judge
(“ALJ”), attributing his delayed request to the
fact that he never “received any decision letter or
correspondence” from the Administration related to his
request for reconsideration. (Id. at 19–20).
On July 11, 2018, an ALJ dismissed the request as untimely
without good cause to extend the sixty-day regulatory
deadline for hearing requests. (Id. at 22, 26).
Plaintiff sought the Appeals Council’s review of the
ALJ’s dismissal on September 7, 2018, but the Appeals
Council denied review on September 27, 2018. (Id. at
then filed a complaint in this Court on November 11, 2018,
claiming the ALJ denied him due process by refusing to hold a
hearing on whether good cause existed to extend the sixty-day
regulatory deadline or, at the least, to “consider any
evidence that would refute Plaintiff’s evidence of good
cause, particularly when the unrefuted evidence establishe[d]
that the original notice of denial of [his] claim was never
received.” (Doc. 1 at 4-5). Plaintiff seeks either
reversal of the ALJ’s dismissal or a remand for a
hearing on the issue of good cause. (Id. at 5).
courts are courts of limited jurisdiction,” possessing
only those powers that the Constitution or statutes grant to
them. Kokkonen v. Guardian Life Ins. Co. of Am. 511
U.S. 375, 377 (1994). As such, under Rule 12(b)(1), a court
must dismiss a claim it lacks subject matter jurisdiction to
decide. Fed.R.Civ.P. 12(b)(1). When resolving a Rule 12(b)(1)
motion, courts “may review any evidence to resolve
factual disputes concerning the existence of
jurisdiction.” Milsap v. Social Sec. Admin,
No. CV 10-1757-PHX-JAT, 2011 WL 2135079, at *2 (D. Ariz. May
31, 2011). Because a federal court “presume[s] a cause
lies outside [its] limited jurisdiction, . . . the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen, 511 U.S. at 377.
a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.” Fed. Deposit Ins.
Corp. v. Meyer, 510 U.S. 471, 475 (1994). Given that
“[s]overeign immunity is jurisdictional in
nature,” id., a court’s jurisdiction to
decide suits brought against the Federal Government is
limited to “the terms of its consent to be sued,”
United States v. Sherwood, 312 U.S. 584, 586 (1941).
For claims arising under the Social Security Act, 42 U.S.C.
§ 405(g) provides the sole avenue for judicial review,
see 42 U.S.C. § 405(h), allowing unsuccessful
claimants to seek review of “any final decision of the
[Administration] made after a hearing . . . within sixty days
after the mailing to him of notice of such decision,”
42 U.S.C. § 405(g). The Social Security Act does not
define the term “final decision;” instead, the
Administration fleshes out its meaning by regulation.
Weinberger v. Salfi, 422 U.S. 749, 766 (1975).
regulations require claimants to proceed through a four-step
administrative review process before any decision becomes
First, the claimant must seek an initial determination as to
his eligibility. Second, the claimant must seek
reconsideration of the initial determination. Third, the
claimant must request a hearing, which is conducted by an
ALJ. Fourth, the claimant must seek review of the ALJ’s
decision by the Appeals Council. If a claimant has proceeded
through all four steps on the merits, all agree, §
405(g) entitles him to judicial review in federal district
Smith v. Berryhill, 139 S.Ct. 1765, 1772 (2019)
(citing 20 C.F.R. § 416.1400). Claimants seeking
successive stages of review face regulatory deadlines,
including, as relevant here, sixty days to request a hearing
from an ALJ following reconsideration. See 20 C.F.R.
§ 416.1433(b). Although claimants who miss this deadline
may request an extension for good cause, 20 C.F.R. §
416.1433(c); see also 20 C.F.R. § 416.1411
(explaining the Administration’s standards for good
cause), “[b]ecause the [Administration’s]
decision whether, for good cause shown, to entertain an
untimely hearing request . . . is strictly discretionary, it
is not final and thus not generally reviewable by a district
court,” Dexter v. Colvin, 731 F.3d
977, 980 (9th Cir. 2013) (citations omitted); see also
Peterson v. Califano, 631 F.2d 628, 630–31 (9th
Cir. 1980) (holding that judicial review is available under
§ 405(g) only after a statutorily mandated hearing takes
place (first citing Califano v. Sanders,
430 U.S. 99, 108 (1977), and then citing Cappadora v.
Celebrezze, 356 F.2d 1, 4–5 (2d Cir.
limited exception exists, however, for “any colorable
constitutional claim of due process violation that implicates
a due process right to a meaningful opportunity to be heard
or to seek reconsideration of an adverse benefits
determination.” Udd v. Massanari, 245 F.3d
1096, 1099 (9th Cir. 2001). A constitutional claim is
colorable if it is not “wholly insubstantial,
immaterial, or frivolous.” Id. (quoting
Boettcher v. Sec’y of Health & Human
Servs., 759 F.2d 719, 722 (9th Cir. 1985)). To meet this
test, a claimant cannot rely on “mere
allegation[s],” but must instead support his claim with
“facts sufficient to state a ...