United States District Court, W.D. Michigan, Southern Division
J. QUIST, UNITED STATES DISTRICT JUDGE.
John Esteban Serna, filed a pro se complaint seeking judicial
review of a final decision of the Commissioner of Social
Security. The three-paragraph form complaint does not specify
the type of benefits Plaintiff seeks, but the last paragraph
states that “[t]he plaintiff has exhausted his
administrative remedies in this matter and this court has
jurisdiction for judicial review pursuant to 42 U.S.C. §
405(g).” (ECF No. 1 at PageID.2.)
moves to dismiss Plaintiff's complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of
jurisdiction, arguing that Plaintiff failed to exhaust his
administrative remedies prior to filing the instant action.
Defendant's motion is unopposed.
it is unclear from Plaintiff's complaint, Defendant
submits evidence that Plaintiff has been receiving Social
Security disability benefits since May 2009 and that
Plaintiff has an auxiliary beneficiary, S.S.-a minor child
who also received benefits. (ECF No. 7-1 at PageID.32-33.)
Juan C. Serna, S.S.'s grandfather, was designated a
representative payee for benefit payments to S.S.
(Id. at PageID.33.) On October 26, 2018, Plaintiff
requested that he be named the representative payee for S.S.
Plaintiff reported that he did not have custody of S.S. and
that S.S. was living with the child's mother.
(Id.) On December 26, 2018, the Social Security
Administration (SSA) notified Plaintiff that benefits for
S.S. were being suspended because S.S.'s grandfather
could no longer serve as S.S.'s representative payee.
(Id. at PageID.33, 62.) The SSA indicated that it
was looking for another qualified representative to receive
the payments and that when payments were resumed, S.S.,
through the representative payee, would receive all of the
money that was due. The notice provided instructions for
seeking review of the decision. (Id. at PageID.63.)
Neither the grandfather nor Plaintiff filed a request for
reconsideration of the SSA's December 26, 2018,
determination. (Id. at PageID.34.)
motion under Rule 12(b)(1) may be brought as either a facial
attack or a factual attack. Gentek Bldg. Prods. v. Steel
Peel Litig. Trust, 491 F.3d 320, 330 (6th Cir. 2007)
(citing Ohio Nat'l Life Ins. Co. v. United
States, 922 F.3d 320, 325 (6th Cir. 1990)).
A facial attack on the subject-matter jurisdiction alleged in
the complaint questions merely the sufficiency of the
pleading. When reviewing a facial attack, a district court
takes the allegations in the complaint as true, which is a
similar safeguard employed under 12(b)(6). If those
allegations establish federal claims, jurisdiction exists.
Id. (citations omitted). On the other hand, when a
motion presents matters outside the pleadings in an attack on
jurisdiction, the district court may make factual findings to
resolve the dispute. Lovely v. United
States, 570 F.3d 778, 781-82 (6th Cir. 2009); see
also Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th
Cir. 2007) (“When a Rule 12(b)(1) motion attacks the
factual basis for jurisdiction, the district court must weigh
the evidence and the plaintiff has the burden of proving that
the court has jurisdiction over the subject matter.”).
Because Defendant's motion presents matters outside the
record, the motion presents a factual attack.
appeals of Social Security decisions are authorized by 42
U.S.C. § 405(g), which provides, in pertinent part:
Any individual after any final decision of the Commissioner
made after a hearing to which he was a party . . . 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
42 U.S.C. § 405(g). Section 405(g) “clearly limits
judicial review to a particular type of agency action.”
Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980,
986 (1977). Although § 405(g) limits review to a
“final decision of the Commissioner, ” that
phrase is not defined in the statute. Weinberger v.
Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467 (1975).
However, the regulations provide that a claimant must
complete a four-step process to obtain a
judicially-reviewable final decision. See 20 C.F.R.
§§ 404.900(a)(1)-(4); 416.1400(a)(1)-(4).
“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.” Smith v.
Berryhill, 139 S.Ct. 1765, 1772 (2019) (citing 20 C.F.R.
§ 416.1400). “If a claimant has proceeded through
all four steps on the merits . . . § 405(g) entitles him
to judicial review in federal district court.”
Id. Thus, two elements are necessary to enable a
federal district court to review decisions of the
Commissioner pursuant to § 405(g): the Commissioner must
issue a final decision and the claimant must exhaust his
administrative remedies. Pohlmeyer v. Sec'y of Health
& Human Servs., 939 F.2d 318, 320 (6th Cir. 1991).
instant case, neither element is met. Plaintiff failed to
seek reconsideration of the SSA's December 26, 2018,
determination with regard to the representative payee for
S.S., and the Commissioner has not issued a final decision.
Accordingly, Defendant's motion ...