KEVIN McNULTY, District Judge.
Mr. Manuel Lampon-Paz brings this, his second action requesting that the court order "an immediate decision on my appeal" by the Social Security Administration regarding his disability claims. (Compl. 2).
Mr. Lampon-Paz is a former federal government employee, currently on disability-related retirement and receiving a monthly annuity. (See Compl. pp. 10, 15 (citing earlier litigation)). On September 4, 2015, Mr. Lampon-Paz submitted an application for Title II Disability Insurance Benefits ("DIB"). (Gremillion Decl. ¶ 3(a)). The application was denied on November 23, 2015 and again, upon reconsideration, on January 26, 2016. (Gremillion Decl. ¶ 3(a)). On February 2, 2016, Mr. Lampon-Paz filed a request for a hearing before an administrative law judge ("ALJ"). (Gremillion Decl. ¶ 3(b)). The last filing before this Court indicated that the request for a hearing was still pending. (See Def. Br. 1).
Mr. Lampon-Paz instituted a civil action in this Court on August 15, 2016, raising a number of matters. Lampon-Paz v. Social Security Administration, No. 16-5052. One of them was a request that this Court reverse the Social Security's denial of expedited treatment. (See Complaint, ECF no. 1) By order I disposed of the matter for lack of jurisdiction. (Id. ECF no. 9) On appeal, the United States Court of Appeals for the Third Circuit affirmed my ruling that this Court lacked jurisdiction under 42 U.S.C. §§ 405(g), (h), and 1383(c)(3), for want of a final order. The Court of Appeals added that, if mandamus jurisdiction were proper, it would not be warranted on the facts of the case. Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 F. App'x 71 (3d Cir. Sept. 26, 2016).
Three months later, on December 28, 2016, Mr. Lampon-Paz instituted this, his second civil action in this court requesting that the court order "an immediate decision" by the Social Security Administration regarding his disability claims. (Compl. 2). This complaint asserts jurisdiction under 42 U.S.C. § 1983, alleging a deprivation of civil rights, and 28 U.S.C. § 1361, seeking mandamus relief. (Compl. 1). The complaint cites the Social Security regulations and medical records, alleging that Mr. Lampon-Paz has several impairments, including four disc herniations, two missing or degenerated discs, spinal stenosis, radiculopathy, joint pain, fibromyalgia, and osteophytic ridge. (Compl. 3) The Complaint states that Mr. Lampon-Paz is unable to work, was experiencing homelessness, and has trouble paying for his medications. (Pl. Br. 2-3). He asks that this court order the Social Security Administration to expedite his case.
Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437-38 (D.N.J. 1999). "[B]ecause subject matter jurisdiction is non-waivable, courts have an independent obligation to satisfy themselves of jurisdiction if it is in doubt. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977).
Rule 12(b)(1) challenges may be either facial or factual attacks. See 2 Moore's Federal Practice § 12.30[4] (3d ed. 2007); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa, 67 F.Supp.2d at 438. A court considering such a facial challenge assumes that the allegations in the complaint are true. Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d at 438. A factual attack, on the other hand, permits the Court to consider evidence extrinsic to the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus "Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiff's allegations." CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008).
Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes omitted; case citations in footnotes inserted in text).
The Social Security Administration asserts a facial attack. Therefore, the court will consider only the allegations in the complaint, in the light most favorable to the plaintiff.
The exclusive jurisdictional basis for judicial review of Social Security cases derives from 42 U.S.C. §§ 405(g), (h), and 1383(c)(3).
42 U.S.C. § 405(g), (h) (emphasis added). The statute thus "clearly limits judicial review" in claims arising under the Social Security Act "to a particular type of agency action, a `final decision of the Commissioner of Social Security made after a hearing.'" Califon v. Sanders, 430 U.S. 99, 108 (1977).
The term "final decision" is undefined in the Act, but its meaning is provided for by the Commissioner of Social Security's regulations. Weinberger v. Salfi, 422 U.S. 749, 766 (1975). These regulations provide that to obtain a judicially reviewable "final decision . . . after a hearing," a claimant must pursue administrative appeal rights in accordance with the regulations. See 20 C.F.R. § 416.1405 et seq. The regulations specifically provide that "[a] claimant may obtain judicial review of a decision by an administrative law judge if the Appeals Council has denied the claimant's request for review, or of a decision by the Appeals Council when that is the final decision of the Commissioner." 20 C.F.R. § 422.210.
Another potential route to the relief sought by Mr. Lampon-Paz may be a writ of mandamus pursuant to 28 U.S.C. § 1361.
In re Balice, 644 F.App'x 112, 113 (3d. Cir. 2016); see also Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996) ("The writ of mandamus is a drastic remedy that a court should grant only in extraordinary circumstances in response to an act amounting to a judicial usurpation of power." (citations and internal quotation marks omitted)).
On appeal from this Court's denial of an earlier, similar application by Mr. Lampon-Paz, the Court of Appeals at least admitted the possibility of mandamus jurisdiction in the context of a Social Security case:
Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 F. App'x 71 (3d Cir. Sept. 26, 2016) (nevertheless denying relief).
Mr. Lampon-Paz asserts jurisdiction under 42 U.S.C. § 1983, asserting that the SSA's denial of benefits, or denial of a speedy resolution of his claims, constitutes a deprivation of civil rights. In these respects, his Complaint, which cites the substantive regulations and the medical evidence, closely resembles an ordinary appeal from a denial of benefits. No final order denying benefits, however, has been entered. See Section II.B, supra.
On appeal from this Court's dismissal of a substantially similar claim by Mr. Lampon-Paz, the United States Court of Appeals agreed that jurisdiction was lacking:
Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 F.App'x 71 (3d Cir. Sept. 26, 2016).
The applicable statutes, 42 U.S.C. §§ 405(g), (h) and 1383(c)(3), provide the exclusive grounds for this Court's review of agency action. Now, as before, this Court lacks jurisdiction because there has been no final order.
I give separate consideration, however, to the request for mandamus relief under 28 U.S.C. § 1361. As noted above, see Section II.C, in Mr. Lampon-Paz's earlier appeal, the Court of Appeals was willing to at least entertain the possibility of mandamus jurisdiction in an appropriate case, although it denied relief.
Without setting a specific deadline, the Third Circuit's earlier opinion gave some guidance as to delays that might be found so excessive as to justify the intervention of a court:
Lampon-Paz, 669 F.App'x 71.
Mr. Lampon-Paz filed his application for benefits on September 4, 2015. The SSA acted with reasonable dispatch, denying the application on November 23, 2015 and again, upon reconsideration, on January 26, 2016. On February 2, 2016, Mr. Lampon-Paz filed a request for a hearing before an ALJ.
Mr. Lampon-Paz filed this action in December 2016, just three months after the Third Circuit found that relief was not warranted. When it was filed, it therefore had little chance of success. The facts, however, have changed since then; most pertinently, additional time has passed. The facts before me (and neither party has updated them) indicate that Mr. Lampon-Paz's request for a hearing before an ALJ is approaching its second anniversary.
Under the authorities cited by the Third Circuit, the two-year mark
For the foregoing reasons, defendant Social Security Administration's motion to dismiss for lack of jurisdiction is GRANTED IN PART, in that this Court lacks jurisdiction under 42 U.S.C. § 405(g), (h) and 1383(c)(3). It is otherwise DENIED as presented. On or before February 2, 2018, however, the SSA shall submit an affidavit or declaration documenting the reasons for the delay and stating the current status of the request for a hearing and other proceedings in the case.
No opinion is expressed as to the merits of the application for benefits, as to which the SSA retains full authority and discretion.
An appropriate order accompanies this opinion.
