Faucette v. Colvin, 15 Civ. 8495 (AJP)

• Decision Date: 03 March 2016
• Docket Number: 15 Civ. 8495 (AJP)
• Parties: ELIJAH DANTE FAUCETTE, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

ELIJAH DANTE FAUCETTE, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

15 Civ. 8495 (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 3, 2016

OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Elijhah Faucette brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security denying him Supplemental Security Income and Disability Insurance Benefits. (Dkt. No. 2: Compl.) Presently before the Court is the Commissioner's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Dkt. No. 8: Comm'r Notice of Mot.) The parties have consented to decision by a United States Magistrate Judge pursuant to 18 U.S.C. § 636(c). (Dkt. No. 16.) Faucette did not reply to the Commissioner's motion and the time to do so has passed. (See Dkt. No. 15: 2/9/16 Scheduling Order.)

For the reasons set forth below, the Commissioner's motion to dismiss (Dkt. No. 8) is GRANTED.

FACTS

Procedural Background

On July 19, 2013, Faucette filed for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") alleging that he has been disabled due to a foot injury and mental disorder since July 1, 2013. (Dkt. No. 13: Nicoll Aff. Ex. 1: Appl. Summ.; Ex. 2: 8/23/13 Denial at 4.)¹ On August 23, 2013, the Social Security Administration ("SSA") found Faucette not disabled because he did not take the medical examination provided at the SSA's expense, and denied his application for SSI. (8/23/13 Denial at 1, 4.) On September 3, 2014, Faucette requested an administrative hearing. (Ex. 3: Hr'g Request.)

On December 10, 2014, Administrative Law Judge ("ALJ") Wallace Tannenbaum issued Faucette a notice for a February 3, 2015 hearing. (Ex. 4: 12/10/14 Hr'g Notice.) The hearing notice, addressed to Faucette at 2185 7th Ave., Apt. 6G, New York, N.Y. 10027, indicated that ALJ Tannenbaum would consider Faucette's eligibility for SSI and DIB. (12/10/14 Hr'g Notice at 1, 3.) Included with the hearing notice was a postage-paid acknowledgment form, which Faucette was instructed to complete and return. (12/10/14 Hr'g Notice at 2, 9.) Faucette did not complete the acknowledgment form. (Ex. 6: 2/5/15 Dismissal Order at 4.) On January 20, 2015, the SSA sent a reminder notice to Faucette at the 7th Ave. address, requesting that Faucette call the SSA to confirm his plan to attend his hearing. (Ex. 5: 1/20/15 Hr'g Notice Reminder.)² Faucette failed to appear for his hearing, and on February 5, 2015, ALJ Tannenbaum dismissed Faucette's hearing request. (2/5/15 Dismissal Order.) ALJ Tannenbaum indicated that the SSA's August 23, 2013 determination of nondisability remained in effect. (2/5/15 Dismissal Order at 2.) ALJ Tannenbaum mailed the Dismissal Order to Faucette at the 7th Ave. address. (2/5/15 Dismissal Order at 1.)

On February 17, 2015, Faucette filed a request for Appeals Council review, indicating that he signed an SSA Form 1696 appointing Lawrence Beck as his representative and had received no correspondence. (Ex. 7: 2/17/15 Review Req.) Faucette continued to report his address as 2185 7th Ave., Apt. 6G, New York, N.Y. 10027. (Id.) On September 3, 2015, the Appeals Council sent Faucette a letter indicating that there was no record of his appointing Beck as his representative, and requesting that he submit evidence to prove he had not received the hearing notices or send a statement explaining why he did not appear for his hearing. (Ex. 8: 9/3/15 Appeals Council Ltr.) Faucette did not respond. (Nicoll Aff. ¶ 3(f).) On October 21, 2015, the Appeals Council denied Faucette's request for review. (Ex. 9: 10/21/15 Appeals Council Denial.) The SSA mailed the denial letter to Faucette's 7th Ave. address. (Id.) Faucette timely filed this action on October 28, 2015. (Dkt. No. 2: Compl.)

ANALYSIS

I. APPLICABLE LEGAL STANDARDS

A. Fed. R. Civ. P. 12(b)(1)

"A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court 'lacks the statutory or constitutional power to adjudicate it.'" Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). Subject matter jurisdiction is a nonwaivable requirement. E.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84, 119 S. Ct. 1563, 1569-70 (1999); Ahmed v. Holder, 624 F.3d 150, 154 (2d Cir. 2010) ("[W]e may not exercise jurisdiction that we otherwise lack simply because the parties will allow it."); In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 121 (2d Cir. 2007); Burns v. King, 160 F. App'x 108, 111 (2d Cir. 2005); Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003); Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ("[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte.").³ Cases lacking subject matter jurisdiction must be dismissed whether raised by the parties or on the Court's own initiative. Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); see, e.g., Henderson v. Shinseki, 562 U.S. 428, 131 S. Ct. 1197, 1202 (2011); Arbaugh v. Y&H Corp., 546 U.S. at 514, 126 S. Ct. at 1244; Ruhrgas AG v. Marathon Oil Co., 526 U.S. at 583, 119 S. Ct. at 1570 ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."); City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 125-26 (2d Cir. 2011).⁴

On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court "may refer to evidence outside the pleadings." Makarova v. United States, 201 F.3d at 113 (citing Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)).⁵ Additionally,the "standards for dismissal under [Rule] 12(b)(6) and 12(b)(1) are substantively identical." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.) (Sotomayor, C. J.), cert. denied, 540 U.S. 1012, 124 S. Ct. 532 (2003).⁶ The only substantive difference is "that the party invoking the jurisdiction of the court has the burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6) motion, in which the defendant has the burden of proof." Lerner v. Fleet Bank, N.A., 318 F.3d at 128 (citing Thompson v. Cty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)); see also, e.g., CP Investors Grp., LLC v. Deutch, 13 Civ. 5228, 2014 WL 1327975 at *3 (S.D.N.Y. Apr. 3, 2014); Langella v. Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y. 2004) ("On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries the burden of establishing that subject matter jurisdiction exists over his complaint."); Bishop v. Porter, 2003 WL 21032011 at *3.

The Court must construe a pro se complaint liberally and must use less stringent standards when reviewing a pro se complaint than if the complaint had been drafted by counsel. See, e.g., Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cancel v. Home Depot, 488 F. App'x 520, 521 (2d Cir. 2012); Spataro v. Glenwood Supply, 479 F. App'x 403, 404 (2d Cir. 2012); Ercole v. LaHood, 472 F. App'x 47, 48 (2d Cir. 2012), cert. denied, 133 S. Ct. 1479 (2013); Harris v. Mills,572 F.3d 66, 72 (2d Cir. 2009); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).⁷ "Even a pro se plaintiff, however, will bear the burden of proving that subject-matter jurisdiction exists." Omoniyi v. Dep't of Homeland Sec., 10 Civ. 1344, 2012 WL 892197 at *5 (S.D.N.Y. Mar. 13, 2012) (citing Makarova v. United States, 201 F.3d at 113; see also, e.g., Pucci v. Brown, 423 F. App'x 77, 77, 78 (2d Cir. 2011).

B. 42 U.S.C. § 405(g)

Judicial review of Social Security decisions is limited to those where the claimant had a hearing:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, 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 of Social Security may allow.

42 U.S.C. § 405(g) (emphasis added). As prior decisions have explained:

The Second Circuit interprets Section 405(g) to grant jurisdiction to review an SSA decision only if that decision follows an actual hearing on the merits. Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983) (stating that Appeals Council dismissal predicated on procedural default "is not reviewable by the district court because it is not a 'final decision' under § 405(g)"). Under this interpretation, a "[d]ismissal for failure to appear at the hearing does not constitute a final decision on the merits and consequently cannot be reviewed under 42 U.S.C. § 405(g)." Milazzo ex rel. Rodriguez v. Barnhart, No. 05 Civ. 9218, 2006 WL 2161781 (S.D.N.Y. Aug. 1, 2006) (citing Plagianos v. Schweiker, 571 F. Supp. 495, 497 (S.D.N.Y. 1983)("[W]hen there was no hearing and determination on the merits by a final decision, there is nothing for the court to review ... [and] absent any constitutional question, an application for judicial review fails to state a claim on which relief may be granted.")); see alsoSaldana v. Astrue, No. 07 Civ. 5893, 2008 WL 534762, at *2 (S.D.N.Y. Feb. 25, 2008) ("failure to appear at [a] hearing [means] this Court lacks jurisdiction over the action"); Urena v. Commissioner of Social Security, No. 02 Civ. 8537, 2003 WL 21702285, at *2 (S.D.N.Y. July 23, 2003) (invocation of Section 405(g) jurisdiction was inappropriate to review an SSA decision based on the procedural ground of failure to appear).

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