IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

CHRISTINE DIANE HENDERSON, 

Plaintiff, 

v. 

CAROLYN L. COLVIN, Acting 

Commissioner of Social Security, 

Defendant. 

PANNER, District Judge: 

Case No. 6:14-cv-1053-PA 

ORDER 

Pro se Plaintiff Christine Dianne Henderson brings this 

action for judicial review of the Commissioner's final decision to 

deny benefits under the Social Security Act. Plaintiff also 

brings claims for disability discrimination, defamation, and 

G 

denial of housing. The Commissioner moves to dismiss Plaintiff's 

1 - ORDER 

Case 6:14-cv-01053-PA Document 48 Filed 10/29/15 Page 1 of 6
non-Social Security claims for lack of subject matter 

jurisdiction. 

I grant the Commissioner's motion to partially dismiss. 

Plaintiff's challenge to the Commissioner's denial of benefits 

will be addressed in a separate order. 

LEGAL STANDARDS 

A motion to dismiss for lack of subject matter jurisdiction 

under Federal Rule of Civil Procedure 12(b) (1) may attack the 

substance of the complaint's jurisdictional allegations even 

though the allegations are formally sufficient. St. Clair v. City 

of Chico, 880 F.2d 199, 201 (9th Cir. 1989). The court may 

consider evidence outside the pleadings to resolve factual 

disputes. Id. The party asserting jurisdiction has the burden of 

proving subject matter jurisdiction exists. Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 

The court should construe the pleadings of a pro se litigant 

more leniently than those of a lawyer. See Eldridge v. Block, 832 

F.2d 1132, 1137 (9th Cir. 1987). A pro se plaintiff should be 

given leave to amend the complaint unless an amendment could not 

cure the complaint's deficiencies. Lopez v. Smith, 203 F.3d 1122, 

1130-31 (9th Cir. 2000) (en bane). 

DISCUSSION 

I. Plaintiff's Non-Social Security Claims 

Aside from seeking judicial review of the Commissioner's 

decision to deny benefits, Plaintiff also brings claims under the 

Americans with Disabilities Act (ADA), the Rehabilitation Act 

2 - ORDER 

Case 6:14-cv-01053-PA Document 48 Filed 10/29/15 Page 2 of 6
of 1973, and other civil rights statutes. See Pl.'s Mem. at 1, 

ECF No. 24 at 2. Plaintiff alleges that her rights under these 

statutes were violated by the Commissioner's denial of Social 

Security benefits. 

Plaintiff brings tort claims, alleging that the 

Administrative Law Judge (ALJ) who evaluated her claim for 

benefits defamed her and her treating physicians by finding that 

her testimony and reports were not credible. Plaintiff also 

brings claims asserting that because she was denied Social 

Security benefits, she was not eligible for subsidized housing. 

II. This Court Lacks Subject Matter Jurisdiction. 

Sovereign immunity protects the United States and its 

agencies from suit unless there is a waiver. The United States 

has waived sovereign immunity as to the Commissioner's final 

decisions denying Social Security benefits, allowing private 

parties to bring actions for judicial review under 42 U.S.C. § 

405(g) and 405(h) of the Social Security Act. See Matthews v. 

Eldridge, 424 U.S. 319, 327 (1976). 

Congress gives federal courts jurisdiction over actions 

seeking judicial review of decisions denying Social Security 

benefits: 

3 - ORDER 

Any individual, after any final decision of 

the Commissioner of Social Security made after 

a hearing to which he was a party, 

irrespective of the amount in controversy, may 

obtain a review of such decision by a civil 

action commenced within sixty days after the 

mailing to him of notice of such decision or 

within such further time as the Commissioner 

of Social Security may allow. 

Case 6:14-cv-01053-PA Document 48 Filed 10/29/15 Page 3 of 6
42 u.s.c. § 405(g). Congress strictly limits this court's 

jurisdiction over such actions: 

No findings of fact or decision of the 

Commissioner of Social Security shall be reviewed by any person, 

tribunal, or governmental agency except as herein provided. 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 to recover on any claim 

arising under this' subchapter. 

42 u.s.c. § 405(h). 

Under these provisions, this court lacks subject matter 

jurisdiction over Plaintiff's claims for defamation, disability 

discrimination, and denial of subsidized housing. These claims 

"arise under" the Social Security Act, for purposes of§ 405(h), 

because the Social Security Act "provides both the standing and 

the substantive basis for the presentation of" the claim. 

Weinberger v. Salfi, 422 U.S. 749, 760-61 (1975). The Supreme 

Court has explained that§ 405(h) "channels" "virtually all legal 

attacks through the agency [and] assures the agency greater 

opportunity to apply, interpret, or revise policies, regulations, 

or statutes without possibly premature interference by different 

individual courts applying 'ripeness' and 'exhaustion' exceptions 

case by case." Shalala v. Ill. Council on Long Term Care, Inc., 

529 U.S. 1, 12-13 (2000) (citation omitted). Even though "the 

agency might not provide a hearing for [any] pa~ticular 

contention, or may lack the power to provide one . [that] is 

beside the point because it is the 'action' arising under the 

Medicare Act that must be channeled through the agency." Id. at 

23 (emphasis and citations omitted). 

4 - ORDER 

Case 6:14-cv-01053-PA Document 48 Filed 10/29/15 Page 4 of 6
Here, subject matter jurisdiction over Plaintiff's disability 

discrimination claims would arise under 28 U.S.C. § 1331, federal 

question jurisdiction. But§ 405(h) specifically "bars claims 

under § 1331 when the claims also arise under" the Social Security 

Act. See Geschke v. Social Security Admin. 2007 WL 1140281, at 

*10 (W.D. Wash. 2007). Because Plaintiff's disability 

discrimination claims are based on the denial of Social Security 

benefits, this court lacks jurisdiction over these claims. 

As to Plaintiff's tort claims for defamation and slander 

based on the ALJ's credibility findings, Congress has waived 

sovereign immunity over tort claims against the United States for 

personal injury, death, or property damage. Federal Tort Claims 

Act, 28 U.S.C. § 1346(b). But§ 405(h) "specifically deprives 

[this court] of subject matter jurisdiction over claims arising 

under 28 U.S.C. § 1346(b) when they also arise under Title II of 

the Social Security Act." Geschke at *11. Because Plaintiff's 

tort claims are intertwined with her claim for Soci~l Security 

benefits, this court lacks subject matter jurisdiction over the 

tort claims. 

Plaintiff's claims relating to housing may arise under state 

law, but the housing claims are also related to the denial of 

Social Security benefits. This court lacks subject matter 

jurisdiction over Plaintiff's housing claims. 

I agree with the Commissioner that this court lacks subject 

matter jurisdiction over Plaintiff's claims other than her claim 

seeking judicial review of the Commissioner's denial of Social 

5 - ORDER 

Case 6:14-cv-01053-PA Document 48 Filed 10/29/15 Page 5 of 6
Security benefits. Because no amendment could cure the lack of 

subject matter jurisdiction, allowing Plaintiff to file an amended 

complaint would be futile. 

CONCLUSION 

The Commissioner's motion to partially dismiss (#37) is 

granted. Plaintiff's claims, other than the claim for judicial 

review of the denial of benefits, are dismissed without prejudice 

for lack of subject matter jurisdiction. 

IT IS SO ORDERED . 

. DATED this ~1' day of October, 2015. 

OWEN M. PANNER 

U.S. DISTRICT JUDGE 

6 - ORDER 

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