United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers, Chief Magistrate Judge.
OPINION AND ORDER
D. MORRISON, UNITED STATES DISTRICT JUDGE.
matter is before the Court for consideration of
Defendant's Motion to Dismiss Plaintiff's Complaint.
(ECF No. 15.) Plaintiff did not respond to Defendant's
motion, and the time to respond has since passed. The matter
is now ripe for consideration.
Plaintiff Bryant Merchant's second action in this Court
related to his applications for social security benefits. Mr.
Merchant filed a protective application for disability
insurance benefits and supplemental insurance income benefits
on October 2, 2012. (See Merchant v. Commissioner of
Social Security, 2:16-cv-1074, ECF No. 15, at 1.) After
that application was denied, Mr. Merchant filed another
application for benefits on April 19, 2013, which was denied
initially and upon reconsideration. (Id. at 1-2.)
Subsequently, an administrative law judge (“ALJ”)
held a hearing, determined that Mr. Merchant was not disabled
within the meaning of the Social Security Act, and denied Mr.
Merchant's second application for benefits.
(Id.) The Appeals Council denied review and adopted
the ALJ's determination as the final decision of the
Commissioner of Social Security. (Id.) Mr. Merchant
filed a timely complaint in this Court, but the Court
affirmed the Commissioner's final decision to deny
benefits in an Opinion and Order dated March 19, 2018.
(Id. at 15.)
Merchant did not appeal the Court's March 19, 2018,
Opinion and Order. Nor did he file a new application for
benefits based on any new claims that may have arisen after
the ALJ adjudicated his second application. (Prelle
Declaration, ECF No. 15-1, ¶ 3(e).) Instead,
Plaintiff filed the instant Complaint, which purports to seek
review of a “final decision” that
“adversely affects [him] in whole or in part.”
(Compl., ECF No. 3.) The Commissioner moves to dismiss the
Complaint on the grounds that because Mr. Merchant has not
obtained a final decision from the Commissioner with regard
to any new claims, the Court lacks subject matter
jurisdiction over this action. (ECF No. 15, at 1.)
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) provides for dismissal when
the court lacks subject matter jurisdiction. Without subject
matter jurisdiction, a federal court lacks authority to hear
a case. Thornton v. Sw. Detroit Hosp., 895 F.2d
1131, 1133 (6th Cir. 1990). Motions to dismiss for lack of
subject matter jurisdiction fall into two general categories:
facial attacks and factual attacks. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial
attack under Rule 12(b)(1) “questions merely the
sufficiency of the pleading[, ]” and the trial court
therefore takes the allegations of the complaint as true.
Wayside Church v. Van Buren Cty., 847 F.3d 812, 816
(6th Cir. 2017) (internal quotations omitted). To survive a
facial attack, the complaint must contain a short and plain
statement of the grounds for jurisdiction. Rote v. Zel
Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). A
factual attack is a challenge to the factual existence of
subject matter jurisdiction, in which case no presumptive
truthfulness applies to the factual allegations.
Ritchie, 15 F.3d at 598. In the context of a factual
attack, a reviewing court may weigh the evidence in order to
satisfy itself as to the existence of its power to hear the
subject matter jurisdiction is challenged, “the
plaintiff has the burden of proving jurisdiction in order to
survive the motion.” Moir v. Greater Cleveland
Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.
1990). Plaintiff has not met that burden in this case.
405(g) of the Social Security Act, 42 U.S.C. § 301
et. seq., governs a district court's
jurisdiction to review a decision of the Commissioner of
Social Security. Pursuant to § 405(g), federal courts
are authorized to review “any final decision of the
Commissioner of Social Security made after a hearing to which
he was a party . . . .” Although the Social Security
Act does not define “final decision, ” the Sixth
Circuit Court of Appeals has explained that a decision is not
final for purposes of § 405(g) until a claimant presents
his claims to the Commissioner and exhausts the
administrative process established by the applicable
regulations. Willis v. Sullivan, 931 F.2d 390,
396-97 (6th Cir. 1991) (explaining that finality is comprised
of two elements- presentation and exhaustion); see also
James v. Comm'r of Soc. Sec., No. 16-6224, 2017 WL
3391704, at *2 (6th Cir. May 4, 2017). That administrative
process entails four steps: (1) an initial determination; (2)
reconsideration; (3) an ALJ hearing and decision; and (4)
Appeals Council review or denial thereof. 20 C.F.R. §
404.900(a)(1)-(4). A plaintiff cannot obtain judicial review
until obtaining a final decision, and he/she cannot obtain a
final decision until after presenting his/her claims to the
Commissioner and completing this entire four-step review
process. See Willis, 931 F.2d at 396-97; 20 C.F.R.
submits a declaration from an Acting Chief of Court Case
Preparation and Review (“Declarant”). Declarant
avers that since this Court affirmed the Commissioner's
final decision with regard to Mr. Merchant's second
application, he has not presented any new claims to the
Commissioner by submitting a new application for benefits.
(ECF No. 15-1, ¶ 3(e).) Mr. Merchant has not refuted
that evidence. Indeed, he has failed to respond in any way to
the motion to dismiss. Accordingly, the Court finds that Mr.
Merchant has not established that he has presented any new
claims to the Commissioner, and, as a result, there is no
final decision from the Commissioner for this Court to
review. Because there is no final decision, this Court lacks
subject matter jurisdiction over this action.
Willis, 931 F.2d at 397.
Commissioner addresses the additional argument that Mr.
Merchant, through his Complaint, has sought to appeal this
Court's March 13, 2018, Opinion and Order. (Def. Mot.
Dismiss, ECF No. 15, at 5-6.) The Commissioner asserts that
Mr. Merchant's Complaint should not be construed as such
because he has not filed a Notice of Appeal with this Court
or a Civil Appeal Statement with the United States Court of
Appeals for the Sixth Circuit. (Id.) Mr. Merchant
also did not identify his Complaint as an appeal, nor did he
in “in any way indicate that he was challenging the
District Court's March 2018 final decision and
Court agrees. Even construed liberally, nothing in the
Complaint indicates that Plaintiff was attempting to file a
notice of appeal. The Complaint, which is titled as such,
explicitly invokes this Court's jurisdiction under §
405(g). (ECF No. 3.) Moreover, it alleges that Plaintiff
“complains of a decision” which “has become
the final decision of the Secretary.” (Id.)
Although this allegation refers to the Secretary instead of
the Commissioner, the Court finds that this can only ...