¶1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
¶2Robert Norman Beaudreau
¶3 v. Civil No. 17-cv-032-JD Opinion No. 2017 DNH 125 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
¶4 O R D E R
¶5 Robert Norman Beaudreau brought suit seeking judicial
¶6review, pursuant to 42 U.S.C. § 405(g), of the decision of the
¶7Social Security Administration to deny him social security
¶8retirement benefits under the Windfall Elimination Provision.
¶9The Acting Commissioner moves to dismiss on the ground that the
¶10court lacks subject matter jurisdiction. Beaudreau filed an
¶11untimely response to the motion. The Acting Commissioner filed
¶12a reply.
¶13 Standard of Review
¶14 For purposes of a motion to dismiss for lack of subject
¶15matter jurisdiction under Rule 12(b)(1), the court credits the
¶16plaintiff's properly pleaded allegations and draws all
¶17reasonable inferences in the plaintiff's favor. Reddy v. Foster, 845 F.3d 493, 497 (1st Cir. 2017). In addition to the
¶18complaint, the court considers other materials and evidence in
¶19the record “whether or not the facts therein are consistent with
¶20those alleged in the complaint.”1 Id.; see also Torres-Negron v.
¶21J&N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007). When
¶22subject matter jurisdiction is challenged, the party asserting
¶23subject matter jurisdiction, the plaintiff in this case, has the
¶24burden of showing that jurisdiction exists. Acosta-Ramirez v.
¶25Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir. 2013).
¶26 Discussion
¶27 In support of the motion to dismiss, the Acting
¶28Commissioner contends that the underlying administrative action,
¶29the Appeals Council’s order dated January 13, 2017, is not a
¶30“final decision” of the Acting Commissioner of Social Security
¶31under § 405(g). As a result, the Acting Commissioner asserts,
¶32the order is not subject to judicial review so that the court
¶33 1 Beaudreau, who is represented by counsel, asserts that the Acting Commissioner improperly supported the motion to dismiss with other evidence, including a declaration. Beaudreau is mistaken. An affidavit or declaration that would not be considered for purposes of a motion to dismiss under Rule 12(b)(6) is properly considered for purposes of a motion under Rule 12(b)(1). See Mehic v. Dana-Farber Cancer Inst., Inc., 2017 WL 637681, at *3 (D. Mass. Feb. 16, 2017); Conservation Law Found. v. Cont'l Paving, Inc., 2016 WL 7116019, at *2 (D.N.H. Dec. 6, 2016).
¶34 2 lacks subject matter jurisdiction in this case. Beaudreau does
¶35not address subject matter jurisdiction directly and instead
¶36argues that the Acting Commissioner has mischaracterized the
¶37relief that he is seeking through judicial review and challenges
¶38the administrative procedure used to process his requests for
¶39reconsideration of administrative decisions.
¶40 In the January 13 order, the Appeals Council held that the
¶41Administrative Law Judge (“ALJ”) erred in considering
¶42Beaudreau’s challenge to the calculation of benefits and should
¶43have considered only whether Beaudreau was entitled to
¶44readjudication under Acquiescence Ruling (“AR”) 12-1(8). The
¶45Appeals Council determined that Beaudreau was not entitled to
¶46readjudication under AR 12-1(8), and, as a result, the ALJ
¶47should have dismissed Beaudreau’s claim. The Appeals Council
¶48retroactively dismissed Beaudreau’s request for a hearing,
¶49making the ALJ’s decision of no effect, and reinstated the
¶50decision issued on October 28, 2008, as the final decision of
¶51the Commissioner.
¶52 This court has jurisdiction to review final decisions of
¶53the Commissioner of Social Security. § 405(g). “Absent a
¶54constitutional claim, [the court] lack[s] jurisdiction to review
¶55the Secretary’s refusal to reopen a prior adjudicated claim.”
¶56Dvareckas v. Sec’y of Health & Human Servs., 804 F.2d 770, 771
¶57 3 (1st Cir. 1986) (citing Califano v. Saunders, 430 U.S. 99
¶58(1977)). An agency action, without a hearing, is not a final
¶59decision of the Commissioner for purposes of § 405(g). Rios v.
¶60Sec’y of Health, Ed., & Welfare, 614 F.2d 25, 26 (1st Cir.
¶611980). In addition, a decision to retroactively dismiss a
¶62request for a hearing is not a final decision that is subject to
¶63judicial review under § 405(g). Hockridge v. Barnhart, 44 F.
¶64App’x 107 (D.C. Cir. 2002); Morris v. Colvin, 183 F. Supp. 3d
¶651133, 1136 (D. Colo. 2016).
¶66 Beaudreau states that there is “no question” that the
¶67Appeals Council’s decision was final and that the Acting
¶68Commissioner is “splitting hairs” in the characterization of his
¶69claim. He has not shown, however, that the Appeals Council’s
¶70decision was a final decision within the meaning of § 405(g)
¶71and, for that reason, has not carried his burden to show that
¶72subject matter jurisdiction exists. In the absence of subject
¶73matter jurisdiction, the court cannot review the Appeals
¶74Council’s decision.
¶75 Conclusion
¶76 For the foregoing reasons, the defendant’s motion to
¶77dismiss (document no. 5) is granted, and the case is dismissed
¶78for lack of subject matter jurisdiction.
¶79 4 The clerk of court shall enter judgment accordingly and
¶80close the case.
¶81 SO ORDERED.
¶82 __________________________ Joseph DiClerico, Jr. United States District Judge
¶83June 20, 2017
¶84cc: Leslie Nixon, Esq. T. David Plourde, Esq.
¶85 5