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Lampon-Paz v. Commissioner of Social Security

United States District Court, D. New Jersey

December 26, 2017

MANUEL LAMPON-PAZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         Mr. Manuel Lampon-Paz brings this, his second action requesting that the court order "an immediate decision on my appeal" by the Social Security Administration regarding his disability claims. (Compl. 2).[1] The Commissioner of Social Security seeks to dismiss the claim, stating that this Court does not have jurisdiction because Mr. Lampon-Paz has not exhausted his administrative remedies and there has been no "final decision ... after a hearing" in this case as required by the Social Security Act, 42 U.S.C. § 405(g).

         I. BACKGROUND

         Mr. Lampon-Paz is a former federal government employee, currently on disability-related retirement and receiving a monthly annuity. (See Compl. pp. 10, 15 (citing earlier litigation)). On September 4, 2015, Mr. Lampon-Paz submitted an application for Title II Disability Insurance Benefits ("DIB"). (Gremillion Decl. ¶ 3(a)). The application was denied on November 23, 2015 and again, upon reconsideration, on January 26, 2016. (Gremillion Decl. ¶ 3(a)). On February 2, 2016, Mr. Lampon-Paz filed a request for a hearing before an administrative law judge ("ALJ"). (Gremillion Decl. ¶ 3(b)). The last filing before this Court indicated that the request for a hearing was still pending. (See Def. Br. 1).[2]

         Mr. Lampon-Paz instituted a civil action in this Court on August 15, 2016, raising a number of matters. Lampon-Paz v. Social Security Administration, No. 16-5052. One of them was a request that this Court reverse the Social Security's denial of expedited treatment. (See Complaint, ECF no. 1) By order I disposed of the matter for lack of jurisdiction. (Id. ECF no. 9) On appeal, the United States Court of Appeals for the Third Circuit affirmed my ruling that this Court lacked jurisdiction under 42 U.S.C. §§ 405(g), (h), and 1383(c)(3), for want of a final order. The Court of Appeals added that, if mandamus jurisdiction were proper, it would not be warranted on the facts of the case. Lampon-Paz v. Commissioner of Social Security, No. 16-3580, 669 Fed.Appx. 71 (3d Cir. Sept. 26, 2016).

         Three months later, on December 28, 2016, Mr. Lampon-Paz instituted this, his second civil action in this court requesting that the court order "an immediate decision" by the Social Security Administration regarding his disability claims. (Compl. 2). This complaint asserts jurisdiction under 42 U.S.C. § 1983, alleging a deprivation of civil rights, and 28 U.S.C. § 1361, seeking mandamus relief. (Compl. 1). The complaint cites the Social Security regulations and medical records, alleging that Mr. Lampon-Paz has several impairments, including four disc herniations, two missing or degenerated discs, spinal stenosis, radiculopathy, joint pain, fibromyalgia, and osteophytic ridge. (Compl. 3) The Complaint states that Mr. Lampon-Paz is unable to work, was experiencing homelessness, and has trouble paying for his medications. (PI. Br. 2-3). He asks that this court order the Social Security Administration to expedite his case.

         II. LEGAL STANDARDS

         A. Rule 12(b)(1) Motion

         Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437-38 (D.N.J. 1999). "[B]ecause subject matter jurisdiction is non-waivable, courts have an independent obligation to satisfy themselves of jurisdiction if it is in doubt. See ML Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977).

         Rule 12(b)(1) challenges may be either facial or factual attacks. See 2 Moore's Federal Practice § 12.30[4] (3d ed. 2007); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa, 67 F.Supp.2d at 438. A court considering such a facial challenge assumes that the allegations in the complaint are true. Cardio-Med. Assoc, Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d at 438. A factual attack, on the other hand, permits the Court to consider evidence extrinsic to the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus "Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiffs allegations." CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008).

The burden of establishing federal jurisdiction rests with the parly asserting its existence, [citing Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006).] "Challenges to subject matter jurisdiction under Rule 12(b)(1) may be facial or factual." [citing Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)).] A facial attack "concerns 'an alleged pleading deficiency' whereas a factual attack concerns 'the actual failure of [a plaintiffs] claims to comport [factually] with the jurisdictional prerequisites." [citing CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in original) (quoting United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
"In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." [citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).] By contrast, in reviewing a factual attack, "the court must permit the plaintiff to respond with rebuttal evidence in support of jurisdiction, and the court then decides the jurisdictional issue by weighing the evidence. If there is a dispute of a material fact, the court must conduct a plenary hearing on the contested issues prior to determining jurisdiction." [citing McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006) (citations omitted).]

Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes omitted; case citations in footnotes inserted in text).

         The Social Security Administration asserts a facial attack. Therefore, the court will consider only the allegations in the complaint, in the light most favorable to the plaintiff.[3]

         B. District Court Jurisdiction to Review Final SSA Orders

         The exclusive jurisdictional basis for judicial review of Social Security cases derives from 42 U.S.C. ...


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