MARY ANN ZDON, 

Plaintiff, 

v. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRlCT OF OREGON 

EUGENE DIVISION 

Case No. 6:15-cv-881-PA 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

ORDER 

PANNER, District Judge: 

Prose Plaintiff Mary Ann Zdon brings this action for judicial review of the 

Commissioner's final decision to deny benefits under the Social Security Act. The Commissioner 

moves to dismiss the complaint because final judgment has been entered against Plaintiff on the 

same claims in an action she filed in the U.S. District Court for the Southern District of Florida. 

I grant the Commissioner's motion to dismiss for lack of subject matter jurisdiction. 

BACKGROUND 

In October 2009, Plaintiff, who was then living in Florida, applied for Disability Insurance 

Benefits and Supplemental Security Income. Plaintiff claimed she had been disabled since 

February 2007 because of chronic pain from degenerative disc disease and a severe jaw disorder. 

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Plaintiffs application for benefits was denied initially and on reconsideration. The 

Administrative Law Judge (ALJ) set a hearing in March 2012 and sent Plaintiff a notice on the 

time and place of the hearing. After Plaintiff did not appear for the hearing, the ALJ dismissed 

Plaintiffs application. 

Plaintiff appealed the dismissal to the Appeals Council, stating that she had missed the 

hearing because she was working in Saudi Arabia as an English teacher. The Appeals Council 

remanded for the ALJ to determine whether Plaintiff had good cause for failing to appear. 

On June 6, 2013, the ALJ held a hearing in West Palm Beach, Fl9rida, on the merits of 

Plaintiffs claim for benefits. Plaintiff appeared and testified without assistance from an attorney. 

On June 28, 2013, the ALJ issued a decision denying Plaintiffs claim for benefits. In 

September 2013, the Appeals Council denied Plaintiffs request for review. In December 2013, the 

Appeals Council set aside the initial denial of review to consider Plaintiffs allegations that the 

ALJ had "blatantly lied," defamed her, and asked racist questions. Chung Decl., Ex. 2, at 2, ECF 

No. 12-2. The Appeals Council determined that the ALJ did not abuse his discretion and again 

denied Plaintiffs request for review. 

In November 2013, Plaintiff, now represented by attorney! Katherine Palacios-Paredes, 

timely filed a civil action in the U.S. District Court for the Southern District of Florida, seeking 

judicial review ofthe denial of benefits. After the issues were fully briefed, on March 30,2015, 

the district court affirmed the Commissioner's decision to deny benefits. Chung Decl., Ex. 3, ECF 

No. 12-2. On March 31, 2015, the district court entered judgment accordingly. 

In the meantime, Plaintiff had moved to Coos Bay, Oregon. Plaintiff submits a letter she 

received from her attorney, Palacios-Paredes, dated April6, 2015, and addressed to Plaintiff in 

Coos Bay. In the letter, Palacios-Paredes stated that she no longer represented Plaintiff, and noted 

that U.S. District Court for the Southern District of Florida had "recently denied" Plaintiffs action 

for judicial review of the Commissioner's final decision. Palacios-Parades warned Plaintiff"that 

you have a limited amount of time to appeal your federal district court case to the Court of 

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Appeals, so you should consult with an attorney to ensure you preserved your rights accordingly." 

Pl.'s Resp., Ex. 1, ECF No. 13-1. 

In Plaintiffs handwritten notes on the copy ofPalacios-Paredes's letter in the record here, 

Plaintiff states that she "relieved [Palacios-Parades] of duty" because "the case was moved to 

Oregon" and because Palacios-Parades's mother works as an ALJ in the Southern District of 

Florida. !d. 

Plaintiff did not file a notice of appeal from the judgment of the U.S. District Court for the 

Southern District of Florida. Def.'s Mot. at 3, ECF No. 12. Instead, on May 21, 2015, Plaintiff 

filed the current action pro se in this court. In her complaint here, Plaintiff seeks judicial review of 

the Commissioner's 2013 decision to deny benefits. Pl.'s Compl., ECF No.2. With the 

complaint, Plaintiff attached a copy of the judgment and order from the U.S. District Court for the 

Southern District of Florida affirming the Commissioner's denial ofbenefits. 

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 ofthe 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. !d. 

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 prose 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 

This Court Lacks Subject Matter Jurisdiction 

After the U.S. District Court for the. Southern District of Florida entered judgment on 

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March 31,2015, affirming the Commissioner's denial ofbenefits, Plaintiffhad 60 days to file a 

notice of appeal from the judgment. See Fed. R. App. P. 4(a)(l)(B); Sanford-Murray v. Astrue, 

No. 3:11-cv-01049-SI, 2013 WL 54018, at *1 (D. Or. Jan. 3, 2013). The appeal should have been 

to the Eleventh Circuit Court of Appeals, which includes Florida. See 28 U.S.C. § 41 (composition 

ofthe circuit courts); 28 U.S.C. § 1294(1) (appeals from district courts "shall be taken to ... the 

circuit embracing the district"). 

Instead of filing a notice of appeal, however, Plaintiff filed the current action in this court, 

seeking review of the denial of benefits even though the U.S. District Court for the Southern 

District of Florida had already issued a final judgment resolving that issue. This court lacks 

jurisdiction over Plaintiffs action because the Florida district court judgment was a final decision, 

meaning that only the Eleventh Circuit Court of Appeals had jurisdiction to review that final 

decision. See Gelboim v. Bank of America Corp., 135 S. Ct. 897, 902 (2015) (28 U.S.C. § 1291 

"gives the courts of appeals jurisdiction over appeals from 'all final decisions of the district courts 

ofthe United States"') (quoting 28 U.S.C. § 1291). This court cannot review the final decision of 

another federal district court. See Powell v. US. Gov 't, 23 F. App'x. 674, 674 (9th Cir. 2001) ("the 

district court lacked jurisdiction to review a final decision of another United States District Court") 

(citing 28 U.S.C. § 1294). 

To the extent that Plaintiff asks this court to review the Commissioner's denial of benefits, 

rather than the district court judgment, this court lacks jurisdiction. Plaintiff filed her complaint in 

this court more than 60 days after the Commissioner's decision became final in 2013. See 42 

U.S.C. § 405(g) (setting time limits for seeking judicial review). 

Plaintiff asserts that her case "has not been heard on a F ederallevel." Pl.'s Resp. at 1, ECF 

No. 13. But the U.S. District Court for the Southern District of Florida issued a final judgment on 

March 31, 2015, resolving Plaintiffs request for judicial review of the Commissioner's decision 

to deny benefits. 

Plaintiff cites the letter from her former attorney to show "that this case is still open for an 

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appeal on a Federal level." !d. When the letter was sent, April6, 2015, the time to appeal the 

Florida district court judgment to the Eleventh Circuit Court of Appeals had not yet expired. Now, 

however, the 60- day period to appeal that judgment has expired. The limited exceptions to the 

strict time limits for filing a notice of appeal do not apply here. See Vahan v. Shalala, 30 F.3d 102, 

103 (9th Cir. 1994) (citing Fed. R. App. P. 4(a)(5), 4(a)(6)). Nor has Plaintiff shown grounds for 

equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408,418 (2005) (for equitable tolling to 

apply, party would need to show that she has been pursuing her rights diligently, and that some 

extraordinary circumstance stood in her way); Hensley v. United States, 531 F.3d 1052, 1057-58 

(9th Cir. 2008) (equitable tolling did not apply when due diligence not exercised and no fraud or 

trickery caused the late filing). 

This court lacks subject matter jurisdiction over Plaintiffs complaint. No amendment 

could cure this defect. 

CONCLUSION 

The Commissioner's motion to dismiss (#12) is granted. Plaintiffs motion for 

appointment of counsel (#3) is denied. This action is dismissed without prejudice for lack of 

subject matter jurisdiction. 

IT IS SO ORDERED. 

DATED this Jd,L_ day ofNovember, 2015. 

5- ORDER 

e2 ~~ .0) 

OWENM.PANNER 

U.S. DISTRICT JUDGE 

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