United States District Court, D. New Jersey
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). 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. §
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.
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.
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.
Rule 12(b)(1) Motion
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).
12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore's Federal Practice § 12.30
(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)
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).
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
District Court Jurisdiction to Review Final SSA
exclusive jurisdictional basis for judicial review of Social
Security cases derives from 42 U.S.C. ...