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 William
Anthony Taccino filed this action pro se. [ECF No.
1]. Defendant Nancy Berryhill, 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 timely appeal the final
judgment of the Commissioner. [ECF No. 11]. Plaintiff has
filed an opposition to the Commissioner's Motion to
Dismiss, a Motion to Strike the Commissioner's Motion to
Dismiss, a Motion for Emergency Injunction, and two Motions
for Default Judgment. [ECF Nos. 13, 16]. The Commissioner did
not file responses to Plaintiff's motions. No hearing is
necessary. See Local Rule 105.6 (D. Md. 2016). For
the reasons set forth below, I recommend that the Court GRANT
the Commissioner's Motion to Dismiss and DENY
Plaintiff's Motions, but I further recommend that the
Court ORDER the clerk's office to docket Plaintiff's
2016 Complaint and related documents, [ECF Nos. 1, 11, 13,
14, 15, 16], in Civil No. GLR-14-2112 so that United States
District Judge George L. Russell III can determine whether
Plaintiff is entitled to further relief.
April 30, 2012, Plaintiff filed a claim for Disability
Insurance Benefits (“DIB”), alleging a disability
onset date of December 1, 2010. [ECF No. 11, Ex. 2].
Plaintiff's claims were denied initially and on
reconsideration. Id. A hearing was held on March 5,
2014, before an Administrative Law Judge (“ALJ”).
Id. Following the hearing, on March 18, 2014, the
ALJ determined that Plaintiff was not disabled within the
meaning of the Social Security Act during the relevant time
frame. Id. On June 19, 2014, the Appeals Council
(the “AC”) denied Plaintiff's request for
review, and notified Plaintiff of his right to seek judicial
review by commencing a civil action within 60 days from the
date of his receipt of the AC's notice. [ECF No.
1, 2014, Plaintiff, proceeding as a “volunteer for the
organization Organizing for Action, ” filed a pro
se complaint alleging a multitude of claims against the
United States, the State of Maryland, the State of West
Virginia, and various federal departments and agencies,
including the Social Security Administration. Organizing
for Action William A. Taccino v. United States of America et
al., Civ. No. GLR-14-CV-02112, (D. Md. July 1, 2014)
(unpublished). Notably, within the nineteen page complaint,
Plaintiff alleged that he “ha[d] been denied and
deprived of…his entitled Social Security disability
benefits[.]” Id. at [ECF No. 1, p. 2');">p. 2]; see
Id. at p. 6 (contending that the Commissioner,
“for the past 2 years has wrongfully and/or illegally
denied Plaintiff of his entitled Social Security disability
benefits.”). However, because Plaintiff also alleged a
multitude of claims against fourteen defendants, on July 16,
2014, Judge Russell dismissed Plaintiff's complaint as
frivolous. Id. at [ECF Nos. 3, 4].
than two years later, on August 5, 2016, Plaintiff filed this
complaint against the Commissioner. [ECF No. 1].
Specifically, Plaintiff alleged that his social security
claim was erroneously dismissed because his 2014 complaint
had constituted a timely appeal of the Commissioner's
final order. Id. On November 14, 2016, the
Commissioner moved to dismiss Plaintiff's 2016 complaint
as untimely. [ECF No. 11].
Commissioner moves to dismiss Plaintiff's 2016 complaint
because the Court does not have subject matter jurisdiction
over Plaintiff's claims. [ECF No. 11]. Plaintiff opposes
the Commissioner's Motion to Dismiss, and asks this Court
to strike the Commissioner's Motion to Dismiss, grant an
emergency injunction, and grant default judgment in
Plaintiff's favor. [ECF Nos. 13, 15, 16]. To support his
motions, Plaintiff argues that he timely filed for judicial
review of the Commissioner's decision in 2014, but that
the Court erroneously dismissed his complaint. Id.
The Commissioner contends, however, that dismissal of the
2016 case is proper because Plaintiff's claims are
untimely. [ECF No. 11].
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');">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, 1 U.S. 89');">551 U.S. 89, 94
the Commissioner asserts that Plaintiff's complaint must
be dismissed because it is untimely. [ECF No. 11, p. 2');">p. 2]. On
June 19, 2014, the AC mailed Plaintiff notice of its decision
denying his request for review of an adverse decision issued
by an ALJ, regarding his claim for DIB. Id. at p. 1.
That notice also advised Plaintiff of his statutory right to
commence a civil action within sixty days from receipt of the
notice. Id.; 42 U.S.C. §§ 405(g) and (h).
The Commissioner's implementing regulations have
interpreted the statute to permit sixty-five days from the
date of the notice, to allow sufficient time for mailing the
notice. 20 C.F.R. §§ 404.901, 422.210(c). Plaintiff
therefore had to file his civil action on or before August
23, 2014. The Commissioner is correct, then, that Plaintiff
filed this complaint two years late, on August 5, 2016. [ECF
No. 11] (citing [ECF No. 1]). Accordingly, this Court lacks
jurisdiction in this 2016 case to adjudicate Plaintiff's
Plaintiff may be correct that he timely appealed the
Commissioner's decision. [ECF No. 13]. On July 1, 2014,
less than one month after the AC denied review of the
ALJ's decision, Plaintiff filed a complaint alleging, in
part, that his Social Security disability benefits were
wrongly denied. Organizing for Action William A.
Taccino, Civ. No. GLR-14-CV-02112, at [ECF No. 1, p. 2');">p. 2,
6]. Although Plaintiff's Social Security claim was buried
among many frivolous claims against non-party defendants,
Plaintiff's 2014 complaint may have constituted a timely
appeal of the Commissioner's final judgment. Thus, the
most appropriate course of action is to file Plaintiff's
current complaint, and related documents, in Civil Case No.
GLR-14-CV-2112 to allow Judge Russell to consider whether
Plaintiff's 2014 filing constituted a timely appeal and,
if so, whether Plaintiff is now entitled to any type of
reasons set forth above, I respectfully recommend that:
Court GRANT the Commissioner's Motion to ...