IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

KEVIN REID ALTHOUSE, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-1886-E-BN 

§ 

COMMISSIONER, SOCIAL SECURITY § 

ADMINISTRATION, ET AL., § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Kevin Reid Althouse filed a pro se civil rights complaint against the 

Commissioner of the Social Security Administration (the SSA), SSA employees, U.S. 

Congressman Colin Allred, and Medicare requesting monetary damages. See Dkt. No. 

3. United States District Judge Ada Brown referred Althouse’s lawsuit to the 

undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. And the undersigned enters these 

findings of fact, conclusions of law, and recommendation that the Court should 

dismiss this lawsuit for lack of jurisdiction. 

Applicable Background 

Althouse alleges that federal officers or employees acted negligently to deny 

him “property without due process of law” under the Fifth Amendment when an 

employee of the SSA failed to remove Althouse’s previously designated payee, which 

resulted in that payee receiving thousands of dollars in benefits that should have 

gone to Althouse. See, e.g., Dkt. No. 3, ¶ 8 (“As a result of this negligence on August 

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30, 2017 when I complained that Ramona Polk was stealing my disability payments 

Ramona Polk continued to receive my checks [for six months], an estimated total of 

$4,200.00.”). He further alleges that Medicare wrongfully took $800 from him, for 

coverage after his disability was terminated due to his incarceration, and that the 

SSA continues to deduct an unexplained $40 from his monthly benefits. And he 

alleges that Congressman Allred’s office unsuccessfully contacted the SSA regarding 

Althouse’s complaints. 

Althouse seeks compensatory damages from the SSA and punitive damages 

from Medicare and Congressman Allred (that he “pay for the costs of this proceeding 

due to his apathetic and condescending conduct”). 

Legal Standards and Analysis 

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 

authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 

(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see 

also Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within constitutional bounds, 

Congress decides what cases the federal courts have jurisdiction to consider.”); 

Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (“Federal courts 

are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack 

the power to adjudicate claims.”). 

They must therefore “presume that a suit lies outside this limited jurisdiction, 

and the burden of establishing federal jurisdiction rests on the party seeking the 

federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). 

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Correspondingly, all federal courts have an independent duty to examine their own 

subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-

84 (1999) (“Subject-matter limitations ... keep the federal courts within the bounds 

the Constitution and Congress have prescribed. Accordingly, subject-matter 

delineations must be policed by the courts on their own initiative even at the highest 

level.” (citations omitted)). 

Althouse chose to file this lawsuit in federal court and, by doing so, undertook 

the burden to establish federal jurisdiction. See Butler v. Dall. Area Rapid Transit, 

762 F. App’x 193, 194 (5th Cir. 2019) (per curiam) (“[A]ssertions [that] are conclusory 

[ ] are insufficient to support [an] attempt to establish subject-matter jurisdiction.” 

(citing Evans v. Dillard Univ., 672 F. App’x 505, 505-06 (5th Cir. 2017) (per curiam); 

Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001))). If he does not, this 

lawsuit must be dismissed. See FED. R. CIV. P. 12(h)(3) (“If the court determines at 

any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 

Concerning Althouse’s federal due process claim, the sole basis for federal 

jurisdiction raised by the complaint, as against the SSA, Althouse’s “failure to 

identify any final agency decision precludes jurisdiction ... to the extent that he seeks 

review of a prior social security benefits decision (or requests social security benefits 

outright).” Lavender v. Soc. Sec., No. 3:19-cv-2561-S-BN, 2020 WL 1539640, at *2 

(N.D. Tex. Mar. 6, 2020) (discussing 42 U.S.C. §§ 405(g), 405(h); citing In re Benjamin, 

932 F.3d 293, 296 (5th Cir. 2019); Raczkowski v. United States, 138 F. App’x 174, 175-

76 (11th Cir. 2005) (per curiam) (Section “405(h) bars social security benefits cases 

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with jurisdictional grounding in [Section] 1331.”), rec. accepted, 2020 WL 1529728 

(N.D. Tex. Mar. 31, 2020). 

Even so, Section 405(g)’s finality requirement 

does not preclude judicial review if a claimant asserts a colorable 

constitutional challenge. See Califano v. Sanders, 430 U.S. 99, 107-09 

(1977); Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir. 1986). “Merely 

alleging a constitutional violation or making a conclusory allegation is 

not enough; the claimant must have a colorable constitutional claim.” 

Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). 

Weeks v. Berryhill, 694 F. App’x 340, 342 (5th Cir. 2017) (per curiam); see also 

Celestine v. Colvin, Civ. A. No. 4:15-002150, 2015 WL 12990010, at *5 (S.D. Tex. Dec. 

3, 2015) (“[A]ny due process claim against Defendant Colvin, to the extent pleaded, 

is prohibited by Section 405(h). In certain cases[, however,] a procedural due process 

claim may be brought under Section 405(g) challenging the constitutional sufficiency 

of administrative procedures.” (citations omitted)). 

But Althouse’s conclusional claim for negligence labeled as a due process 

violation is not colorable under the constitution, as a “mere allegation of a due process 

violation is not persuasive.” Robertson, 803 F.2d at 810 (“agree[ing] with our 

colleagues of the Fourth Circuit that ‘[i]f the mere allegation of a denial of due process 

can suffice to establish subject-matter jurisdiction, then every decision of the 

Secretary would be reviewable by the inclusion of the [magic] words’” (quoting 

Holloway v. Schweiker, 724 F.2d 1102, 1105 (4th Cir. 1984))). 

Absent a colorable constitutional claim, the Federal Tort Claim Act (the FTCA) 

precludes tort suits against the SSA, as an agency of the United States, as well as its 

employees acting in their official capacities. See, e.g., Joseph v. Soc. Sec. Admin., CV 

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16-3377 (JFB) (GRB), 2017 WL 1067804, at *5-*6 (E.D.N.Y. Feb. 28, 2017), rec. 

adopted, 2017 WL 1078570 (E.D.N.Y. Mar. 20, 2017); see also Fabian v. Colvin, No. 

SA-14-CV-141-XR, 2014 WL 3952803, at *3 (W.D. Tex. Aug. 13, 2014) (“[T]here are 

no other viable jurisdictional bases for Plaintiff’s damages claim against the SSA. In 

fact, § 405(h) expressly provides that ‘no action against the United States, the 

Commissioner of Social Security, or any officer or employee thereof shall be brought 

under section 1331 or 1346 of Title 28.’ Therefore, even though 28 U.S.C. § 1346 (i.e. 

the Federal Tort Claims Act or FTCA) waives sovereign immunity for certain tort 

actions against the federal government, Plaintiff is barred by statute from recasting 

her claim against the SSA as an intentional tort.” (citations omitted)). Cf. Gibson v. 

Fed. Bureau of Prisons, 121 F. App’x 549, 551 (5th Cir. 2004) (per curiam) (“[A]n 

action against the United States, the BOP, or BOP officers in their official capacities 

as such claims are barred by the doctrine of sovereign immunity.” (citing Corr. Servs. 

Corp. v. Malesko, 534 U.S. 61, 71-72 (2001); Hafer v. Melo, 502 U.S. 21, 25 (1991))). 

The Court similarly lacks jurisdiction over Althouse’s claim against Medicare. 

See, e.g., Supreme Home Health Servs., Inc. v. Azar, 812 F. App’x 229, 234-35 (5th Cir. 

2020) (“The Supreme Court has made clear that 42 U.S.C. § 405(h), as incorporated 

by 42 U.S.C. § 1395ii, generally bars suits arising under the Medicare laws from being 

brought under federal-question jurisdiction. Claims must first be ‘channeled through’ 

the administrative review process. A plaintiff may invoke § 1331 in a particular set 

of cases, however, where the bar against jurisdiction ‘would not lead to channeling of 

review through the agency but would mean no review at all.’ ‘This exception is narrow 

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and applies only when channeling a claim through the agency would result in the 

“complete preclusion of judicial review.”’ But [even] the delay caused by the ‘colossal 

backlog in Medicare appeals’ is not enough to provide jurisdiction under § 1331.” 

(citations omitted)). 

And, insofar as Althouse seeks damages from Congressman Allred or any other 

federal defendant in an individual capacity under Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Bivens, unlike 42 U.S.C. 

§ 1983, is not a Congressional statute that “entitles an injured person to money 

damages if a state official violates his or her constitutional rights.” Ziglar v. Abbasi, 

137 S. Ct. 1843, 1854 (2017) (“Congress did not create an analogous statute for federal 

officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a 

specific damages remedy for plaintiffs whose constitutional rights were violated by 

agents of the Federal Government.”). 

Given that the facts here present a context outside the Bivens trilogy of cases, 

Althouse has not shown that the Court should extend Bivens to this context. See Roe 

v. Johnson Cnty., Tex., No. 3:18-cv-2497-B-BN, 2021 WL 4395280, at *11-*13 (N.D. 

Tex. July 13, 2021), rec. accepted, 2021 WL 3828151 (N.D. Tex. Aug. 27, 2021); see 

also Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) (refusing to extend Bivens to an 

action under the Fifth Amendment’s Due Process Clause for wrongful denial of Social 

Security disability benefits: “When the design of a Government program suggests 

that Congress has provided what it considers adequate remedial mechanisms for 

constitutional violations that may occur in the course of its administration, we have 

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not created additional Bivens remedies.”). 

Recommendation

The Court should dismiss this case for lack of jurisdiction. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: August 30, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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