United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
to Standing Order 2014-01, the above-referenced case was
referred to me to review the pending dispositive motion and
to make recommendations pursuant to 28 U.S.C. § 636(b)
and Local Rule 301.5(b)(ix). [ECF No. 4]. Plaintiff Trovone
Murray filed this action pro se under the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the
denial of her claim for benefits by the Social Security
Administration (“SSA”). [ECF No. 1]. The SSA has
filed a motion to dismiss, arguing that this Court lacks
subject matter jurisdiction because Ms. Murray did not
exhaust her administrative remedies. [ECF No. 17]. Ms. Murray
has opposed the SSA's motion. [ECF No. 20]. No. hearing
is deemed necessary. See Loc. R. 105.6 (D. Md.
2016). For the reasons stated below, I recommend that the
SSA's motion to dismiss be granted.
March 14, 2017, Ms. Murray appeared at a hearing regarding
her denied claim for benefits, and asked the Administrative
Law Judge (“ALJ”) for a postponement to allow
consultation with a representative. [ECF No. 17-2 at 7].
After the ALJ granted the postponement, the SSA mailed a new
Notice of Hearing to Ms. Murray, asking her to sign an
acknowledgment of receipt to indicate her intent to appear at
the rescheduled hearing. Id. Ms. Murray signed and
returned the acknowledgement, but did not appear at the
hearing and did not make contact with the Hearing Office to
explain her absence. Id. On July 31, 2017, the ALJ
issued an order dismissing Ms. Murray's request for
hearing, in light of her failure to appear. Id. at
7-8. Ms. Murray appealed the ALJ's dismissal to the
Appeals Council, which denied her request for review.
Id. at 9-10. Ms. Murray then filed the instant
action on February 5, 2018. [ECF No. 1].
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.
argues that this Court lacks jurisdiction over Ms.
Murray's appeal because she failed to exhaust her
administrative remedies and is not appealing from a final
decision. Under sections 405(g) and 405(h) of the Social
Security Act, an individual may only obtain judicial review
of the SSA'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) (emphasis
added). In Ms. Murray's case, no hearing was ever held.
The ALJ dismissed Ms. Murray's claim pursuant to 20
C.F.R. § 416.1457(b), because she failed to appear for
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 Fed.Appx. 227, 232 (10th Cir. 2007)
(“[D]istrict courts lack jurisdiction to review an
ALJ's procedural dismissal under §
416.1457.”). I concur with the reasoning in those
decisions. Because Ms. Murray's claim was dismissed on
procedural grounds due to her failure to appear at her
hearing, this Court lacks jurisdiction to hear her appeal.
foregoing reasons, I recommend that the SSA's Motion to
Dismiss, [ECF No. 17], be granted. Any objections to this
Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed.R.Civ.P. 72(b) and Local
Rule 301.5.b. I direct the Clerk to mail a copy of this
Report and Recommendations to Plaintiff at the address listed
on the docket.
to file written objections to the proposed findings,
conclusions, and recommendations of the Magistrate Judge
contained in the foregoing report within fourteen (14) days
after being served with a copy of this report may result in
the waiver of any right to a de novo review of the
determinations contained in the report and such failure shall
bar you from challenging on appeal the findings and
conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.