RECOMMENDED DECISION ON DEFENDANT'S MOTION TO DISMISS
The commissioner of Social Security moves to dismiss thecomplaint in this action pursuant to Federal Rule of CivilProcedure 12(b)(1) on the ground that the court lackssubject-matter jurisdiction to review an administrative lawjudge's dismissal of a hearing request. See Defendant's MotionTo Dismiss This Action for Lack of Subject Matter Jurisdiction("Motion") (Docket No. 4); Memorandum in Support of Motion ToDismiss This Action for Lack of Subject Matter Jurisdiction("Memorandum") (Docket No. 4) at -. For the reasons thatfollow, I recommend that the Motion be granted.
I. Applicable Legal Standard
When a defendant moves to dismiss pursuant to Rule 12(b)(1),the plaintiff bears the burden of demonstrating thatsubject-matter jurisdiction exists. Lundquist v. PrecisionValley Aviation, Inc., 946 F.2d 8, 10 (1st Cir. 1991); Lord v.Casco Bay Weekly, Inc., 789 F. Supp. 32, 33 (D. Me. 1992). Bothparties may rely on extra-pleading materials. 5A Charles AlanWright & Arthur R. Miller, Federal Practice and Procedure § 1350 at 213 (2d ed. 1990); see alsoHawes v. Club Ecuestre el Comandante, 598 F.2d 698, 699 (1stCir. 1979) (question of jurisdiction decided on basis of answersto interrogatories, deposition statements and an affidavit). Inthis case the plaintiff, who is represented by counsel, withdrewa motion to extend time to respond to the Motion and has filed noresponse. See Docket (entry of June 29, 2004).
The plaintiff was informed by letter dated July 1, 2000 that hehad received an overpayment of Social Security Disability ("SSD")benefits. See Claimant's Request for Revision/Re-opening of theReconsideration Determination of May 30, 2001 ("ReopeningRequest"), Attachment #3 to Motion, at 1. Upon reconsideration,by letter dated May 30, 2001, the commissioner affirmed theinitial overpayment determination. See Attachment #2 to Motionat 1. The reconsideration letter stated, in relevant part: "Ifyou believe that the reconsideration determination is notcorrect, you may request a hearing before an administrative lawjudge of the Office of Hearings and Appeals. If you want ahearing you must request it not later than 60 days from the dateyou receive this notice." Id.
On or about January 2, 2003 Jane Eden, counsel for theplaintiff, submitted a request for a hearing before anadministrative law judge. See Request for Hearing byAdministrative Law Judge, Attachment #3 to Motion. She alsosought reopening and revision of the reconsiderationdetermination pursuant to 20 C.F.R. § 404.987-88. Seegenerally Reopening Request. On or about July 25, 2003administrative law judge Katherine Morgan entered an orderdismissing the plaintiff's request for hearing. See generallyAttachment #4 to Motion. The order provided, inter alia, asfollows: The regulations . . . provide that a request for hearing may be dismissed where the claimant has failed to file the request within the specified time and the time for filing such request has not been extended for good cause shown (20 C.F.R. § 404.957(c)(3)).
The claimant failed to meet the 60 day requirement in which to file the Request for Hearing [i]neffectively filing his Request for Hearing two years later in January of 2003. Accordingly, there is no good cause to extend the time for filing. Therefore, the claimant's request for hearing is hereby DISMISSED. The reconsidered determination dated May 30, 2001 remains in effect[.]Order of Dismissal, Attachment #4 to Motion. On or aboutSeptember 23, 2003 the plaintiff, represented by new counselJames R. Bushell, filed a request for Appeals Council review ofJudge Morgan's order of dismissal. See generally Attachment #5.Bushell argued, inter alia, that as a result of error on thecommissioner's part Judge Morgan was not provided with, and didnot have the benefit of, a separate letter dated December 5, 2002in which Eden had expressly sought an extension of thehearing-request deadline and detailed reasons why in her viewgood cause existed to grant that request. See generally id. Byletter dated January 2004 the Appeals Council declined to reviewJudge Morgan's order of dismissal. See Attachment #6 toMotion.1 The instant suit was filed on March 31, 2004.See Docket No. 1.
The commissioner rests her Motion on two basic principles: (i)that 42 U.S.C. § 405(g) empowers the federal courts to reviewonly "final" decisions of the commissioner, and (ii) that adiscretionary dismissal of a hearing request does not qualify asa "final," judicially reviewable decision. See Memorandum at-.
She is correct. Section 405(g) provides that "any finaldecision of the Commissioner of Social Security made after ahearing" is judicially reviewable in the district court.42 U.S.C. § 405(g); see also, e.g., Califano v. Sanders, 430 U.S. 99, 108 (1977) (Congress"clearly limit[ed] judicial review to a particular type of agencyaction, `a final decision of the [commissioner] made after ahearing.'"). In turn, "the meaning of the term `final decision'has been left to the [commissioner] to flesh out by regulations."Brittingham v. Barnhart, 92 Soc. Sec. Rep. Serv. 301, 304 (D.Del. 2003) (citation and internal quotation marks omitted).Relevant Social Security regulations define administrativeactions that are "not subject to judicial review" to include"[d]enying your request to extend the time period for requestingreview of a determination or a decision[.]"20 C.F.R. § 404.903(j);2 see also, e.g., Torres v. Secretary ofHealth & Human Servs., 845 F.2d 1136, 1138 (1st Cir. 1988)("Absent a colorable constitutional claim not present here, adistrict court does not have jurisdiction to review the[commissioner's] discretionary decision not to reopen an earlieradjudication."); Harper v. Bowen, 813 F.2d 737, 742 (5th Cir.1987) (aligning with majority of circuit courts of appeals inholding that "Sanders precludes judicial review of anadministrative decision not to extend the time limit.");Brittingham, 92 Soc. Sec. Rep. Serv. at 304 (court lackedjurisdiction to entertain plaintiff's appeal of order dismissingrequest for hearing on timeliness grounds).
The plaintiff, who bears the burden of demonstrating theexistence of subject-matter jurisdiction, makes no argument thathe has a colorable constitutional claim that would render hiscomplaint judicially reviewable.
For the foregoing reasons, I recommend that the Motion beGRANTED.
1. The precise date is unclear from the face of the letterand, in any event, immaterial.
2. In SSD cases, administrative law judges possess discretionto dismiss hearing requests pursuant to 20 C.F.R. § 404.957 ("Anadministrative law judge may dismiss a request for a hearingunder [certain enumerated] conditions[.]").