United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge
March 20, 2017, Plaintiff Tameka Jones, who proceeds pro
se, petitioned this Court to review the denial of her
claim for Children's Supplemental Security Income
(“SSI”) on behalf of her minor son, D.O. [ECF No.
1]. The Commissioner filed a Motion to Dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), on the grounds that Ms. Jones failed to
exhaust her administrative remedies prior to filing her
complaint. [ECF No. 14]. On July 10, 2017, the Clerk's
Office mailed a Rule 12/56 letter to Ms. Jones to explain the
potential consequences of failing to respond to the
Commissioner's Motion to Dismiss. [ECF No. 15]. On July
21, 2017, Ms. Jones requested an extension of time to
respond, which I granted through August 28, 2017. [ECF Nos.
16, 17]. Ms. Jones did not file a response. I find that no
hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the reasons explained below, I will grant the
Commissioner's Motion to Dismiss.
August 17, 2004, Ms. Jones filed for SSI benefits, which
resulted in an award to her minor son, D.O. [ECF No. 14-2, at
3(a)]. Following a continuing disability review, D.O.'s
benefits ceased on April 22, 2014. Id. On August 19,
2014, the cessation was upheld on reconsideration.
Id. At Ms. Jones's request, the Social Security
Administration (“SSA”) scheduled a hearing before
an Administrative Law Judge (“ALJ”) for August
26, 2016. Id. at 3(b). On July 20, 2016, the SSA
mailed a Notice of Hearing, which reminded Ms. Jones that
failure to appear at the scheduled hearing without good cause
could result in dismissal of the claimant's request for
hearing. [ECF No. 14-2, Exh. 1]. The Notice of Hearing also
asked Ms. Jones to return an enclosed Acknowledgement of
Receipt, which she signed and returned by mail. Id.
Jones failed to appear at the hearing. Id. On August
26, 2016, the SSA mailed a Notice to Show Cause for Failure
to Appear. Id. After Ms. Jones failed to respond to
the notice within ten days, the ALJ issued an order of
dismissal on September 21, 2016. Id. On November 23,
2016, Ms. Jones requested review of the ALJ's order of
dismissal, and the Appeals Council denied the request for
review on February 3, 2017. [ECF No. 14-2, at 3(c)]. Ms.
Jones filed the instant action on March 20, 2017. [ECF No.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) governs motions to dismiss
for lack of subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). While the plaintiff bears the burden of proving
that a court has jurisdiction over the claim or controversy
at issue, a Rule 12(b)(1) motion should be granted
“only 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.
Commissioner argues that this Court lacks jurisdiction over
Ms. Jones's appeal because she failed to exhaust her
administrative remedies and is not appealing from a final
decision. Under sections 205(g) and 205(h) of the Social
Security Act, an individual may only obtain judicial review
of the Commissioner's “final” decision after
she has exhausted all administrative remedies. 42 U.S.C.
§§ 405(g)-(h). Because there is no formula for
determining whether a decision is final, the meaning of that
term is left to federal and state agencies to define by
regulation. Weinberger v. Salfi, 422 U.S. 749, 766
(1975). Section 405(g) of the Social Security Act provides
that “any individual, after any final decision of the
Commission made after a hearing to which he was a party . . .
may obtain a review of such decision by a civil
action[.]” 42 U.S.C. § 405(g). In Ms. Jones's
case, no hearing was ever held. The ALJ dismissed Ms.
Jones's claim pursuant to 20 C.F.R. § 416.1457(b),
because she failed to appear for her hearing.
a similar issue, the Fourth Circuit has held that an Appeals
Council's refusal to review an ALJ's dismissal of an
untimely request for review did not constitute a final
decision, because the claimant did not exhaust his
administrative remedies in failing to properly request review
of his case. Adams v. Heckler, 799 F.2d 131, 133
(4th Cir. 1986). The Fourth Circuit reasoned that
“[s]uch action does not address the merits of the
claim, and thus cannot be considered appealable[.]”
Id. (citing Smith v. Heckler, 761 F.2d 516,
518 (8th Cir. 1985)). Moreover, the Fifth Circuit held that a
federal court does not have jurisdiction over the appeal of
an Appeals Council's decision to uphold an ALJ's
dismissal of a request for a hearing, where dismissal
occurred due to the claimant's failure to appear.
Brandyburg v. Sullivan, 959 F.2d 555, 558-59 (5th
Cir. 1992). The Fifth Circuit reasoned that “dismissal
on procedural grounds at the administrative stage . . .
deprives the district court of jurisdiction under section
405(g).” Id. at 562; see also Estate of
Lego v. Leavitt, 244 F. App'x 227, 232 (10th Cir.
2007) (recognizing that “district courts lack
jurisdiction to review an ALJ's procedural dismissal
under § 416.1457”). I concur with the reasoning in
those decisions. Because Ms. Jones's appeal was dismissed
on procedural grounds due to her failure to appear at her
hearing, this Court lacks jurisdiction to hear her appeal.
foregoing reasons, the Commissioner's Motion to Dismiss,
[ECF No. 14], is GRANTED, and the Clerk is directed to CLOSE
this case. A separate order follows.