UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
July 12, 2011
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY,
The opinion of the court was delivered by: William J. Martini, U.S.D.J.
THIS MATTER comes before the Court upon Defendant's Motion to Dismiss the Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1); the Court having reviewed the filings submitted by the Defendant; the Court noting that the Plaintiff by her letter of July 4, 2011 indicated that she will not be making any filings in opposition; the Court noting that in Califano v. Sanders, 430 U.S. 99, 108 (1977), the Supreme Court held that the Social Security Act "clearly limits judicial review to a particularly type of agency action, a 'final decision of the Secretary made after a hearing'"; the Court recognizing that Congress intended to avoid litigation involving stale and belated claims, Id.; the Court noting the Third Circuit's holding that a decision not to consider an untimely request for review is not the "final decision" required before jurisdiction may be exercised, Bacon v. Sullivan, 969 F.2d 1517, 1519 (3d Cir. 1992); the Court recognizing that the exercise of jurisdiction has previously been deemed inappropriate when a plaintiff seeks review of an ALJ's dismissal of a claim after receiving an untimely request for a hearing, See, e.g., Courtney v. Choplin, 195 F. Supp. 2d 649, 650; Whitelock v. Califano, 451 F. Supp. 541, 543 (E.D.Pa. 1978); the Court finding that it lacks subject matter jurisdiction because Plaintiff did not first obtain a final decision from the Social Security Administration after a hearing, See 42 U.S.C. § 405(g); and for good cause appearing,
ORDERED that Defendant's motion is GRANTED, and it is further ORDERED that Plaintiff's complaint is DISMISSED.
William J. Martini
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