MI CHAEL D. J . EI SENBERG, Plaintiff,

v. SOCI AL SECURI TY ADMI

NI STRATI ON and MI CHAEL

J . ASTRUE , Commi ssioner, Social Security

Administration, Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 08-1978 ( CKK)

MEMORAN DUM OP INION (Mar ch 29, 2010) Plaintiff Michael D. J. Eisenberg , an attorne y who is repr esentinghimself pro se , filed the above- captioned matter see king judicia l reviewof an a dminist rative la w judg e’s f

ailure to a ct on his request for

attorney ’s fe es in conne ction with his repre sentation of a c laimant in administrative proc eeding s befor e the Social Sec urity Administration. Pl aintiff has na med as Def endants in this action the Social Secur ity Administration (“SSA”) and Commissioner of the SSA, Mi chae l J . Astrue ( collectively , “De fenda nts”). This matter c omes befor e the Court on Def endants’ [9] Mot ion to Dismi ss, in which Def endants a ssert that this Court lacks subject matter jurisdiction over Plaintiff’ s claims. After a thoroug h revie w of the pa rties’ submissions, applicable case law, statutory and re g ulatory

authority as we ll as the rec ord of this ca se as a whole, the Court agree s that it lacks subject matter jur isdiction over Plaintiff’s claims and sha ll there fore GRANT De fenda nts’ [9] Motion to Dism iss pursuant to Fede ral Rule of CivilProcedur e 12(b) (1), for the r easons that f ollow. 1 I. BACKG ROUND As set forth in the Complaint, Plainti ff is an attorney who pra ctices be fore the SSA. See Compl. ¶ 4. On or about F ebrua ry 6, 2007, he wa s hired by an individual (her einaf

ter, “Claimant”) to repre sent her be fore the SSA in her eff orts to secure social sec urity benef its. Id. 2 ¶ 5. A he aringwas he ld before an administrative law judge (“A L J ”) on or

about Novembe r 15, 2007, reg ardingClaimant’s benef it request, at whic h Claimant was awa rded c urre nt, future a

nd back be nefits. Id. ¶ 8. The A L J also awa rded Plaintiff, Claimant’s attorne y , the full amount of attorney ’s fe es re quested. Id. ¶ 9. Shortly there afte r, on or a

bout Dece mber 3, 2007, Claimant ( i.e., Plaintiff’s client) wr ote to the SSA st atingthat she believe d Plaintiff’s attorney ’s fe es should be re duced. Id. ¶ 10. In response , on J anuar

y 12, 2008, Plaintiff wrote a letter to the pre siding AL J explaining why he believed that he was in fa ct entitled to the full amount of attorne y ’s fe es re quested. Id. ¶ 11. B y letter dated J anuar

y 15, 2008, the AL J responde d to Plainti ff that she was inclined to re duce his reque sted fee s by

approximately

one-f ifth to $1,000. Id. ¶¶ 12, 20. The AL J g ave no r eason f or the intended r eduction in attorne y ’s fe es except to advise Plaintiff that her decision wa s based on “his perf ormanc e in the hea

ring .” Id. The AL J further advised Plaintiff that he ha d 15 day s in

Whil e De fenda

nts have not spec ifically

indicated that their

motion to di smiss i s asserte d 1 under F eder al Rule of Civil P roce dure 12( b)(1) , it is well established that motions t o dismiss for lack of subject matter jur isdiction are pr operly revie wed unde r Rule 12(b)( 1). See Fe d. R. Civ. P

. 12(b)( 1). For privac y rea sons, the parties have not identified the individual cla imaint by name a nd 2 instead re fer

to this i ndividual as “Claimaint” throughout the instant briefing . The Court agree s that the individual’s identity is not material to the re solution of Defe ndants’ Motion to Dismis s, and shall there fore adopt the par ties’ appr oach of

ref err ing to this individual as “Claimant.” 2which to re spond to her letter

. Id. Plaintiff did so, providing a timely response by

letter dated J anuar y 24, 2008. Id. ¶ 13. Plaintiff, however , did not rece ive any response from the AL J . Acc ording ly , on November

17, 2008, havingfailed to re ceive a fina l determination with respe ct to his request for attorney ’s fe es, Plaintiff filed the a bove-c aptioned lawsuit see king judicia l reviewof the AL J ’s inaction on his attorney ’s fe es re quest. See ge nerally Compl. P laintiff’s Complaint asserts two claims for r elief unde r the APA. The first claim alleg es that the AL J ’s fa ilure to issue a fina l decision on Plaintiff’s re quest for attorney ’s fe es violated sec tion 555(b) of the A PA by failingto conclude a matter

prese nted to the SSA “within a rea sonable time.” Id. ¶¶ 13- 17. The sec ond claim alleg es that the AL J acte d “ar bitrarily and ca priciously ” in violation of section 706(2) (A) of the APA by : (a) f

ailing to a ct on Plaintiff’s re quest for attorney ’s fe es; and (b) indicatingin the J anuar y 15, 2008 letter that she w as inclined to re duce his attorney ’s fe es to $1,000.00. Id. ¶¶ 18- 20. The Complaint further alleg es that this Court has jurisdiction over Plaintiff’s claims pursua nt to the APA and 28 U.S.C. § 2501. Id. ¶¶ 2- 3. As relief , Plaintiff seeks an or der: (a ) findingthat the AL J ’s J anuar

y 15, 2008 letter a

rbitrar y and ca pricious, id. ¶ 21; (b) de clar ing that Defe ndants acte d with undue delay

in respondingto Plainti ff’ s J anuar y 24, 2008 rebuttal letter , id. ¶ 22; and (c) requiringthe AL J to either a war d Plaintiff his full fee or pr ovide a substantive r esponse to Plaintiff’s J anuar

y 24, 2008 rebuttal letter

within 60 day s of the Court’s orde r, id. ¶ 23. On Fe bruar

y 19, 2009, subsequent to Plaintiff’s filing of this lawsuit, the AL J issued her final orde r with respe ct to Plaintiff’s reque st for attorne y ’s fe es. SeeDef s.’ MTD, Doc ket No. [9] , Att. 1 (Orde r of Administrative L aw Judge dated F eb. 19, 2009) ( here afte r, the “ Fe b. 19,

32009 Orde r”)

. As set forth ther ein, the AL J conclude d that, “[u] nder the circ umstances, it 3 appea rs re asonable to awar d [P laintiff] 75 perce nt of the agree d-upon fe e.” Id. at 2. Acc ording ly , the AL J awa rded Plaintiff a

reduc ed fe e of $3,975.00. Id. Def endants have now f

iled a [9] Motion to Dism iss Pl aintiff’s Complaint for lac k of subject matter jur isdiction pursuant to Fede ral Rule of Civil Procedure 12(b)( 1). Specific ally , Def endants a rgue that Plaintiff has not stated a valid statutory

basis for this Court’s jurisdiction. Whil e Plaintiff alleg es in his Compl aint that the Court has jurisdiction pursuant to the APA and 28 U.S.C. § 2501, Defenda nts contend that neither

statutory provision affor ds the Court subject matter jurisdiction over Plaintiff’ s claims beca use: (a) the APA does not apply to matters ar ising under the Social Security Act; and ( b) 28 U.S.C. § 2501 relate s to the time for filingsuit in t he Court of Fe dera l Claims and is t here fore inapplicable to the c ase at hand. Def s.’ MTD at 1- 2. Def endants fur

ther note that although Plaintiff c ould have br oug ht a suit for manda mus relief invoking the Court’ s jurisdiction under 28 U.S.C. § 1361, any such cla im is now mootin light of the issuance of a f

inal decision with respe ct to Plaintiff’s attorney ’s fe e re quest. Id. at 2. Fina lly , Def endants c ontend that any

potential claim Plaintiff may wish to assert base d on his dissatisfaction with the AL J ’s final de cision would simil arly fail, as the SSA’s dec isions reg ardingattorney ’s fe es ar e fina l and not subject to judicial revie w. Id.

I t is well settled that a motion to dis miss pursuant to Rul e 12(b) (1) c an re fer to material 3 outside of the plea dings w ithout being c onverte d into a motion for summary judgme nt. See, e .g., Herbe rt v. Nat’l Acad. of Scienc es , 974 F.2d 192, 197 ( D.C. Cir. 1992) (“where nece ssary , the court may consider the complaint supplemented by undisputed fac ts evidence d in the rec ord, or the complaint supplemented by undisputed fac ts plus the court’s re solution of disput ed fa cts”); Bonterra Am., Inc . v. Be

stmann , 907 F. Supp. 4, 5 n. 1 (D.D .C. 1995) (noting that, “[i] n deciding a motion to dism iss a case for lac k of subject matter jurisdiction, the Court may consider evidentiar y matters outside the plea dings” ). 4Plaintiff has filed an O pposition t o Def endants’ motion. See Pl.’s Opp’n, Docke t No. [11] . He c oncede s that the “Ag ency ’s ac tion to make Attorney fee decisions and [ sic ] how much to gr ant for a

ttorney ’s fe es ar e . . . non-r eviewa ble.” Id. at 3. Plaintiff argues, howe ver, that this Court has jurisdiction under the APA to re view his claim that the year -dela y by the SSA in issuing a f

inal decision re g ardinghis request for attorney ’s fe es wa s arbitra ry and ca pricious. Id. at 1-3. Plaintiff urg es that this claim is not mootor alter natively , if the Court finds the issue is moot, that it qualifies under the “ capa ble of re petition y et eva ding r eview” exception to the mootness doctrine. Id. at 3-4. Plaintiff there fore seeks a n order requiring“the Ag ency

to expl ain why it took over a year

to make its decision (whic h was made afte r this Action was filed) and compensate Plaintiff appropr iately .” Id. at 4. Def endants have since filed a Reply

. See Def s.’ Reply , Docke t No. [13] . Acc ording ly , briefingon Def endants’ Motion to Dismiss is complete, and the motion is now ripe for the Court’s re view and r esolution. II. LEGAL STANDARD Under Rule 12(b)(1) , the plaintiff bea rs the burde n of establishingthat the cour t has subject matter jur isdiction. Georgiades v . Martin-Trigona , 729 F.2d 831, 833, n. 4 ( D.C. Cir. 1984) (“ I t is the burden of the party claimingsubject matter jur isdiction to demonstrate that it exis ts.”); see also Grand Lodge of Fraternal Order of Policev. Ashcroft , 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ( a cour

t has an “ aff

irmative oblig ation to ensure tha t it is actingwithin the scope of its jurisdictional authority ”). Acourt must acc ept as true all fac tual alleg ations contained in the complaint when r eviewinga motion to dism iss pursuant to Rule 12(b)(1) , and the plaintiff should rece ive the bene fit of all favorable infere nces that can be drawn from the a lleg ed fa cts. See Leathe rman v. Tarrant Cty. Narcotics Intelligence &Coordinati on Unit , 507 U.S. 163, 164

5(1993); Koutny v. Martin , 530 F. Supp. 2d 84 (D.D .C. 2007) (“[A] court acc epts as true all of the

fac tual alleg ations contained in the c omplaint and may also consider

‘undisputed fa cts evidenc ed in the rec ord.’” ) (inter

nal citations omitted). Howeve r, “‘ plaintiff’s fa ctual alleg ations in the complaint . . . will bear c loser scr utiny in resolvinga 12(b) (1) motion’ than in re solving a 12(b)( 6) motion for fa ilure to state a c laim.” Grand Lodge , 185 F. Supp. 2d at 13-14 ( quoting 5A Charles Ala

n Wright & Arthur R. Miller, F eder al Prac tice and Proc edure § 1350). Where, a s here , an ac tion is brought by a pro se plaintiff, althoug h an attorne y , the Court must take particula

r ca re to c onstrue the plaintiff’ s filings libera lly for suc h complaints are held “to less string ent standar ds than forma l pleading s draf ted by lawy ers.” Haines v. Kerne r , 404 U.S. 519, 520-21; see also Richardson v . United States , 193 F.3d 545, 548 ( D.C. Cir. 1999). “Courts of this Circuit have interpr eted the Supre me Court’s instruction in Haines as encompa ssing a ll filings submitted by pro se litigants, not just their pleading s.” Lindsey v. United States , 448 F. Supp. 2d 37, 44 (D.D .C. 2006) (interna l citations omit ted). The District of Columbi a Circuit has fur

ther instructe d that lower c ourts may use supplemental mate rials to clar ify a pro se plaintiff’s cla ims withoutconver ting a motion to di smiss i nto one for summar y judgme nt. See Gree nhill v. Spellings , 482 F.3d 569, 572 ( D.C. Cir. 2007) (explaining that lowe r courts may

“conside r supplemental mate rial filed by a pro se litigant in orde r to clarify the prec ise claims beingurg ed”) (citing Anyanwutaku v. M oore , 151 F.3d 1053, 1054 ( D.C. Cir. 1998)). III. DISCUSS ION Def endants move f

or dismissal of the Complaint, arguing that the Court lacks subject matter jurisdiction over Plaintiff’ s claims. The Court agree s. Plainti ff a lleg es in his Compl aint

6that this Court has jurisdiction over his claims pursuant to the APA and 28 U.S.C. § 2501.

Compl. ¶¶ 2-3. The latter re fer ence to section 2501, howeve r, is clea rly in error , as the c ited code provision gove rns the time for f iling ce rtain cla ims before the United States Court of F eder al Claims and is inapplicable to the ca se at ha nd. See28 U.S.C. § 2501. The Court is therefor e lef t only with the APA as a possible sourc e of jurisdiction over Plaintiff’s claims. I t is well settled, howeve r, that the APA itself doe s not confer subject matter jur isdiction. Calif ano v. Sanders , 430 U.S. 99, 107 (1977) (The “APA does not a ffor d an implied g rant of subje ct-matter jurisdiction permitting fe dera l judicial reviewof ag ency action.”) . Acc ording ly , “[b] eca use the APA does not provide a

n independe nt gr ant of subjec t matter jurisdiction, the Court has jurisdiction under the APA only insofar a s it has jurisdiction under § 1331.” Am. Chiropractic Ass’n v. Shalala , 108 F. Supp. 2d 1, 8 (D.D .C. 2000). Unfortunately for Plaintiff, the Supre me Court has made c lear

that “fe dera l-question jurisdiction under 28 U.S.C. § 1331 is precluded by [t he Social Secur ity

Act].” Calif

ano , 430 U.S. at 109 (citing W einberge r v. Salfi , 422 U.S. 749, 761 (1975)) ; see also 42 U.S.C. § 405(h) (“N o action ag ainst the United States, the Commi ssioner of Social Sec urity , or any office r or e mploy ee the reof shall be brought under section 1331 or 1346 of

Title 28 to recove r on any claim ar ising unde r this subchapter .”). A s the Social Security

Act spec ifically

prec ludes fede ral que stion jurisdi ction over Plaintiff’s suit, the Court lacks indepe ndent subject matter jurisdiction to entertain Plaintiff’s cla ims brought pursuant to the APA. Plaintiff’s Complaint m ust theref ore be dismiss ed. Plaintiff’s arguments to the contrar y are without merit. Rely ing on Thompson v. United States Dep’t of Labor , 813 F.2d 48 ( 3d Cir. 1987), Plaintiff maintains that this C ourt has jurisdiction under the APA to re view his claim that De fenda nts “unrea sonably

delayed

7resolution” of his fe e re quest. SeePl.’s Opp’n at 1-3. Plaintiff’s r eliance on Thompson ,

howeve r, is misplaced. In Thompson , the plaintiff soug ht judicial reviewunder the APA of the Depa rtment of L abor’ s failure to timely resolve the plaitniff’s administrative c omplaint alleg ing discriminatory

treatment in violation of S ection 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793. 813 F.2d at 50, 52. The dec ision does not address — a nd is theref

ore irr eleva

nt to — the question of whethe r a c ourt has jurisdiction to enterta in a plaintiff’s c laims under the APA whe re, as her e, the plaintiff se eks re view of unr easona ble delay by the Social Secur ity

Administration in resolvinghis request for

attorney ’s fe es. As indicate d above, the Social Security Act, unlike the Rehabilitation Act, specif ically prec ludes fede ral que stion jurisdi ction, and the Court ther efor e lacks subjec t matter jurisdiction over Plaintiff’s c laims. Nothing in Thompson holds to the contra ry . Acc ording ly , it is clear that the Court lac ks subject matter jurisdiction over Plaintiff’s claims seekingjudicial revie w under the APA of the SSA’s alleg ed dela y in ruling on his re quest for attorney ’s fe es. De fenda nts note, howeve r, that Plaintiff arguably could have broug ht — and the Court would have ha d jurisdiction to entertain — a ma ndamus ac tion to compel the Commi ssioner to issue a fina l decision with respe ct to Plaintiff’s fee reque st pursuant to 28 U.S. § 1361 (“The district courts shall have orig inal jurisdiction of any action in the natur e of mandamus to compel a

n office r or e mploy ee of

the United States or a

ny ag ency there of to perf orm a duty

owed to the plaintiff.” ). See G anem v . Hec kler , 746 F.2d 844, 845- 46 (D.C. Cir. 1984) (holdingthat the “[Social Security ] Act does not prec lude the exerc ise of mandamus jurisdiction”). Reg ardle ss, as Def endants c orre ctly

asser t, any such cla im would now be moot in

8light the AL J ’s issuance of a f inal decision on Plaintiff’s fe e re quest. 4 Finally , while Plaintiff has not moved for leave to amend his Complaint to add claims direc tly challeng ing the actua l decision by the AL J to awar d Plaintiff reduc ed attorne y ’s fe es in the amount of $3,975.00, he appea rs to sug g est in his opposit ion briefingthat Def endants should be re quired “ to expl ain why the [AL J ’s] decision to gr ant only 75% of the f

ee . . . is not ar

bitrary and ca pricious.” Pl.’s Opp’n a

t 3. As Defe ndants corr ectly observe , howeve r, the Court would also lack jurisdiction over any potential claim Plaintiff may wish to assert base d on his dissatisfaction with the AL J ’s final de cision, as the re levant re g ulations and ca se law make cle ar that decisions by

the SSA reg ardingattorney ’s fe es ar e fina l and not subject to judicial revie w. See20 C.F.R. § 404.1720(d)( 1) (pr oviding f or administrative re view of a fee deter mination by “[a]n authoriz ed off

icial of the Socia l Security Administration who did not take part in the fe e deter mination being que stioned,” which de cision “is not subject to further revie w”) ; see also Copaken v . Sec’

y of Health, Educ . &W

elfare , 590 F.2d 729, 730- 31 & n. 1 ( 8th Cir. 1979) (per

In an appa

rent attempt to respond to Defe ndants’ arg uments reg ardingmootness, 4 Plaintiff argues in his oppositi on briefingthat — even if moot — his claim seekingjudicial revie w under

the APA of the SSA’s unre asonable delay in resolvinghis fee r equest satisfies the mootness exception for ca ses that ar e “c apable of re petition, y et eva ding r eview,” such that the Court should entertain his claim. Pl.’s Opp’n at 3- 5. This argument, howeve r, misses the point entirely . The Court must dismi ss Plainti ff’ s claims under the APA beca use the APA itself doe s not provide indepe ndent subject matter jurisdiction and the Social Secur ity Act spec ifically prec ludes fede ral-que stion jurisdi ction pursuant to 28 U.S.C. § 1331. As such, the Court lacks subject matter jur isdiction to entertain Plaintiff’s APA claims. See supra at pp. 6-8. This is true reg ardle ss of whethe r or not Plaintiff’s APA cla ims are now moot, a que stion the Court need not rea ch. Indeed, D efe ndants raise d the issue of mootness only to point out t hat eve n if Plaintiff had alleg ed a c laim for manda mus relief c ompelling the SSA to act on Plaintiff’s f ee r equest — a claim over

which the Court would have had jurisdiction — such a c laim would now be moot in light of the issuance of

the AL J ’s final ruling

on Plaintiff’s fee reque st. SeeDef s.’ MTD at 2. Plaintiff’s argument that his claim for judicial re view under the APA fits the exception to the mootness doctrine is there fore immaterial to the principa l problem in this case, i.e., the lack of any independe nt source of

jurisdiction over Plaintiff’s APA cla ims.

9curiam) (af firmingdistrict court’s holding“that it lacke d subject matter jur isdiction [ under e ither the APA or the Socia l Security Act] to review the Sec reta ry ’s fe e dete rmination for a buse of discretion”) ; Carver v. H

eck ler , 568 F. Supp. 301, 304-05 (D . Vt. 1983) (f inding that c ourt lacke d subject matter jur isdiction under either the Social Secur ity

Act or the APA to review attorney fee decisions by

Secre tary

). Indeed, Plaintiff c oncede s as much, ac knowledg ing tha t “the Ag ency ’s ac tion to make Attorney fee decisions and [ sic ] how much to gra nt for attorne y ’s fee s are . . . non-re viewable .” Pl.’s Opp’n at 3. Accor dingly , the Court shall GRANT Def endants’ [9] Mot ion to Dismi ss pursuant to Rule 12(b)(1)

. IV. CONCLUSION For the re asons set for

th above, De fenda

nts’ [9] Motion to Dism iss pursuant to Fede ral Rule of Civil P roce dure 12( b)(1) is GRANTED. An a ppropriate Orde r ac companies this Memorandum Opinion. Date: Marc h 29, 2010 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

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