United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
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
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).
August 15, 2016, the Commissioner mailed her Motion to
Dismiss to Plaintiff via UPS Express Mail. [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].
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].
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,
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].
The Commissioner's Motion to Dismiss
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
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. [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. §
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.
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 ...