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Glass v. Commissioner, Social Security

United States District Court, D. Maryland

December 15, 2016

LEIGH GLASS
v.
COMMISSIONER, SOCIAL SECURITY

          REPORT AND RECOMMENDATIONS

          Stephanie A. Gallagher United States Magistrate Judge.

         Pursuant to Standing Order 2014-01, the above-captioned case has been referred to me to review the parties' dispositive motions and to make recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). Plaintiff Leigh Glass filed this action pro se. [ECF No. 1]. Defendant Carolyn Colvin, Acting Commissioner, Social Security Administration (“the Commissioner”), has filed a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), on the grounds that Plaintiff failed to exhaust her administrative remedies prior to filing her complaint. [ECF No. 10]. Plaintiff has filed an Opposition to the Commissioner's Motion to Dismiss, [ECF No. 23], several Motions to Strike the Commissioner's Motion to Dismiss, [ECF Nos. 16, 18, 21, 27], a Motion to Strike the Commissioner's Reply, [ECF No. 30], a Motion for Sanctions, [ECF No. 28], and a Motion to Increase Sanctions, [ECF No. 31]. The Commissioner has filed a consolidated response to Plaintiff's Opposition and one of Plaintiff's Motions to Strike and Motion for Sanctions. [ECF No. 29]. The Commissioner did not file a response to Plaintiff's previous Motions to Strike, and has not yet responded to Plaintiff's most recent motions. For the reasons set forth below, I recommend that the Court DENY Plaintiff's motions, and DENY the Commissioner's Motion to Dismiss, allowing the case to proceed forward.

         I. BACKGROUND

         Plaintiff, who appears pro se, filed this Social Security action against the Commissioner on May 6, 2016. [ECF No. 1]. Plaintiff initially alleged that the Commissioner intentionally declined to review her 2014 and 2015 claims for disability benefits and sought a declaratory judgment, as well as injunctive relief from the Commissioner's alleged discrimination. Id. On August 12, 2016, the Commissioner filed a Motion to Dismiss for Failure to State a Claim. [ECF No. 10]. In her motion, the Commissioner argued that this Court does not have jurisdiction over Plaintiff's claim because she failed to exhaust her administrative remedies and is not appealing from a final order of the Commissioner. Id.; see 42 U.S.C. §§ 405(g)-(h).

         On August 15, 2016, the Commissioner mailed her Motion to Dismiss to Plaintiff via UPS Express Mail.[1] [ECF No. 12]. On August 23, 2016, the Commissioner “received a phone call from UPS informing [her] that they were unable to mail [the Motion] to Plaintiff's P.O. Box address, and that they could not find a forwarding address on file for Plaintiff to reroute it to Plaintiff's home address.” Id. On September 1, 2016, the Motion was returned to the Commissioner. Id. On September 7, 2016, the Commissioner re-mailed the Motion “by first class, postage prepaid, to [P]laintiff's P.O. Box address using United States Postal Service (USPS) carrier[.]” [ECF No. 14]. On September 9, 2016, at the Court's order, the Commissioner provided additional information regarding her attempt to serve Plaintiff with the Motion to Dismiss. Id. Specifically, the Commissioner added that she believed UPS “could not deliver to a P.O. box, ” and that she “attempted to reach [P]laintiff using the phone number provided on [P]laintiff's file for the purposes of confirming her proper address; however, the phone number routed the Commissioner to a local Social Security field office.” Id. On September 12, 2016, Plaintiff advised that she had still not been served, and filed a Motion to Strike the Commissioner's Motion to Dismiss. [ECF No. 16].

         On September 28, 2016, Plaintiff renewed her Motion to Strike the Commissioner's Motion to Dismiss, and moved the Court to impose sanctions against the Commissioner. [ECF No. 18]. On October 3, 2016, the Court granted Plaintiff leave to file electronically, [ECF No. 19], and, on October 14, 2016, ordered Plaintiff to file a response by October 31, 2016, [ECF No. 20]. On October 31, 2016, Plaintiff failed to file a response to the Commissioner's Motion to Dismiss. Instead, Plaintiff objected to the Court's order of October 14, 2016, and renewed her Motion to Strike the Commissioner's Motion to Dismiss. [ECF No. 21].

         To address the substantive issues in this case, on November 1, 2016, the Court regenerated electronic notification of the Motion to Dismiss, provided Plaintiff with an electronic copy of the Commissioner's Motion, and advised Plaintiff that a response to the Motion was required by November 18, 2016. [ECF No. 22]. On November 18, 2016, Plaintiff filed an opposition to the Commissioner's Motion to Dismiss, in which she alleged “fraud, criminal activity, and retaliatory behavior by [the Commissioner].” [ECF No. 23]. On November 21, 2016, Plaintiff supplemented her previous Motions to Strike and filed a Motion for Sanctions, and argued that they be granted as a matter of law due to the Commissioner's failure to respond. [ECF Nos. 27, 28]. On November 22, 2016, the Commissioner filed a response to Plaintiff's Opposition to the Commissioner's Motion to Dismiss and to Plaintiff's November 21, 2016 motions. [ECF No. 29]. Finally, on December 6, 2016, Plaintiff filed a Motion to Strike the Commissioner's Reply to its Motion to Dismiss, and a Motion to Increase Sanctions. [ECF Nos. 30, 31].

         II. DISCUSSION

         The Commissioner moves to dismiss Plaintiff's Complaint on the grounds that the Court does not have subject matter jurisdiction over Plaintiff's claims. [ECF Nos. 10, 29]. Plaintiff opposes the Commissioner's Motion to Dismiss, asks this Court to strike the Commissioner's Motion to Dismiss and Reply, and requests sanctions against the Commissioner. [ECF Nos. 16, 18, 21, 27, 28, 30, 31]. To support her motions, Plaintiff contends that the Commissioner erroneously addressed Plaintiff's 2009 Social Security claim, and failed to serve Plaintiff with a copy of her Motion to Dismiss in violation of Fed.R.Civ.P. 5(b)(2). Id. Plaintiff further argues that her motions must be summarily granted because they are unopposed. [ECF Nos. 24, 25, 27, 28]. The Commissioner contends, however, that Plaintiff's claims are meritless, that sanctions are unwarranted, and that dismissal is proper. [ECF No. 29].

         A. The Commissioner's Motion to Dismiss

         Beginning with Defendant's Motion to Dismiss, the Commissioner moves to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. [ECF Nos. 10, 29]. As an initial matter, motions to dismiss for lack of subject matter jurisdiction are governed by Federal Rule 12(b)(1). Fed.R.Civ.P. 12(b)(1). While the plaintiff bears the burden of proving that the court has jurisdiction over the claim or controversy at issue, a Rule 12(b)(1) motion should only be granted if the “material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D. Md. 2010); see also Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a motion to dismiss for lack of subject matter jurisdiction, the pleadings should be regarded as “mere evidence on the issue, ” and courts may “consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647. The pleadings of pro se litigants, such as Plaintiff, are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         Here, Plaintiff asserts several bases of subject matter jurisdiction over her claims regarding the Commissioner's alleged discrimination. Specifically, Plaintiff alleges jurisdiction under 28 U.S.C. §§ 1331, 1346, 1367, 2201, and 2202.[2] [ECF No. 1]. Additionally, because the pleadings of pro se litigants are liberally construed, see Erickson, 551 U.S. at 94, the Court finds that Plaintiff further alleged jurisdiction under 42 U.S.C. § 405(g). Id. The Commissioner, however, moves to dismiss Plaintiff's Complaint on the grounds that it lacks subject matter jurisdiction. [ECF Nos. 10, 29]. For the reasons described below, the only potential basis for jurisdiction over Plaintiff's claims is 42 U.S.C. § 405(g).

         First, Plaintiff contends that the Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. [ECF No. 1]. Generally, sovereign immunity protects the federal government and its agencies from being sued, absent an express waiver. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994). Plaintiff contends, however, that “[j]urisdiction is proper pursuant to federal question jurisdiction under 28 U.S.C. § 1331; as well as 28 U.S.C. § 1346 due to the [Defendant] being an agency of the U.S. Government[.]” [ECF No. 1]. Contrary to Plaintiff's assertion, the Social Security Act contains an exclusive remedy provision that expressly bars claimants from bringing actions relating to Social Security claims under those provisions. See 42 U.S.C. § 405(h) (“No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.”). Instead, jurisdiction over cases “arising under” Social Security exists only under 42 U.S.C. § 405(g), which requires an agency decision in advance of judicial review. See 42 U.S.C. § 405(g) (“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.”). Accordingly, subject matter jurisdiction does not exist under 28 U.S.C. §§ 1331 and 1346.

         Second, Plaintiff contends that the Court has subject matter jurisdiction under 28 U.S.C. § 1367. Section 1367 permits a federal court to entertain a jurisdictionally inadequate state claim if it is joined with a jurisdictionally adequate federal claim involving the same event or transaction. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). This case, however, does not involve any state claims. Indeed, the plain language of § 1367(a) prevents the application of supplemental jurisdiction in this case. See 28 U.S.C. § 1367(a) (providing that a district court will have supplemental jurisdiction over all related claims unless “expressly provided otherwise by Federal statute”). Here, Congress has “expressly provided otherwise by ...


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