United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the defendants' motion to
dismiss for lack of subject matter jurisdiction. Filing
14. That motion will be granted.
Moore, proceeding pro se, has sued the Social
Security Administration, "Local Director Lisa, "
and Commissioner Nancy A. Berryhill (collectively,
"SSA") for alleged constitutional and state law
violations. Those claims appear to derive from the SSA's
withholding of funds from two of Moore's supplemental
income checks as an offset for a prior overpayment. By
withholding those funds, Moore claims that the SSA violated
"the Social Security Administration Title 16 Repayment
Contrat [sic] Agreement." Filing 1 at 2. Moore
seeks monetary relief for the SSA's "intentional
discriminatory practices, " and a declaration that the
SSA "deprive[d him] of protected rights under the 5th
and 14th Amendments[.]" Filing 1 at 4 (emphasis
omitted). The SSA moves to dismiss Moore's complaint
under Fed. R. Civ. P. 12(b)(1), claiming that Moore
has failed to exhaust his administrative remedies. Filing
16 at 6-7.
may recover overpayments of benefits to Social Security
recipients. 42 U.S.C. § 1383(b)(1). One way of doing so
is by reducing the amount of the recipient's future
benefits payments until the entire overpayment has been
recovered. Id.; 20 C.F.R. § 416.570. Before the
SSA can initiate that process, however, it must notify the
overpaid recipient of its intent to recover the payments. 20
C.F.R. 416.558. After receiving that notification, the
recipient may appeal the SSA's determination by
submitting a request for reconsideration within 60 days. 20
C.F.R. § 416.1409. That request, if submitted,
is the first step in the standard process for appealing an
SSA determination. 20 C.F.R. §§ 416.1400, 416.1407.
administrative record in this case is unclear. It appears,
however, that the SSA notified Moore of its intent to recover
overpaid funds through a reduction in his subsequent benefits
payments. According to the SSA, Moore then filed a request
for reconsideration, which the SSA denied. See
filing 15-1 at 1-2. Moore has taken no further
administrative actions concerning the disputed withholdings.
Filing 15-1 at 2.
Court's jurisdiction over this dispute is limited by
Section 205(g) of the Social Security Act, which provides for
judicial review of a "final decision of the Commissioner
of Social Security made after a hearing." 42 U.S.C.
§ 405(g). The SSA contends that no "final
decision" has been rendered, and that the Court
therefore lacks subject matter jurisdiction over the dispute.
Filing 16. The Court agrees, and the SSA's
motion to dismiss will be granted.
noted above, a benefits recipient may file a request for
reconsideration, as Moore apparently did here, after
receiving a notice of overpayment. 20 C.F.R. § 416.1409.
A denial of that request, however, does not amount to a
"final decision" of the Commissioner. Rather, the
recipient must request a hearing on the SSA's denial
before an Administrative Law Judge ("ALJ").
See 20 C.F.R. § 416.1430. If that decision is
unfavorable, the recipient must seek review of the ALJ's
determination by an Appeals Council. 20 C.F.R. §
416.1400(a). If the Appeals Council denies the
request for review, the ALJ's decision becomes the
"final decision" of the SSA. Id. At that
point, and at that point only, the recipient may seek relief
in federal court. See Quinn v. Comm'r of Social
Security, 2008 WL 4792012, at *1-2 (E.D. Mich.
2008); Bronstein v. Apfel, 158 F.Supp. 2d 1208,
1210 (D. Colo. 2001).
from Moore's complaint are any allegations regarding the
administrative remedies, if any, he pursued following the
SSA's initial determination. Without such allegations,
and in light of the administrative record currently before
the Court, Moore has not satisfied his burden in establishing
federal jurisdiction over his claims. See Great Rivers
Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir.
2010) (burden lies with the party asserting jurisdiction).
Indeed, there is no indication that Moore sought
review-either by an ALJ or Appeals Council-of the SSA's
denial of his request for reconsideration.
Moore execute an end run around administrative review by
purporting to bring his claim pursuant to 42 U.S.C. §
1981, or styling it as a constitutional claim. It is the facts
alleged in a complaint, and not the legal theories, that
state a claim. Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 849 (8th Cir. 2014). The
facts Moore alleges plainly assert a claim arising out of
subchapter II of the Social Security Act-and "[n]o
action against the United States, the Commissioner of Social
Security, or any officer or employee thereof shall be
brought" in federal court to recover on any claim
arising under that subchapter except pursuant to the
administrative procedures set forth above. See 42
U.S.C. § 405(h); see also Weinberger v. Salfi,
422 U.S. 749, 756-64 (1975). Accordingly, Moore's failure
to exhaust his administrative remedies precludes both his
claim both against the SSA and against its employees, in
because the agency has not issued a "final
decision" in this matter, the Court lacks subject matter
jurisdiction over Moore's complaint. For those reasons,
the SSA's motion will be granted, and Moore's
complaint will be dismissed.
SSA's motion to dismiss (filing 14) is granted.
Moore's complaint is dismissed.