1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KEVIN M. KEAY,

Plaintiff, No. 3:15-cv-01691-HZ 

v. OPINION & ORDER

COMMISSIONER OF SOCIAL SECURITY

ADMINISTRATION, 

Defendant.

Kevin M. Keay

650 NW Irvine

Portland, OR 97209

Pro Se Plaintiff

HERNÁNDEZ, District Judge:

On September 8, 2015, Kevin Keay filed an application to proceed in forma pauperis

(“IFP”) [2], and a complaint [1] in which he alleges that the Social Security Administration 

failed to pay him his benefit for the month of September, 2015, an amount he claims should be 
2 - OPINION & ORDER

$629.00. Mr. Keay’s application to proceed IFP is granted, but his complaint is dismissed

because he has failed to allege that he exhausted his administrative remedies. If Mr. Keay has 

already presented his claims to the Social Security Administration, and wishes to file an 

amended complaint that includes information about that process, he may file an amended 

complaint within thirty days. The Court provides some additional instructions at the end of this 

Opinion & Order. 

DISCUSSION

According to his complaint, Mr. Keay was awarded Social Security benefits in 2008. He 

alleges that the Social Security Administration failed to pay him his benefit for the month of 

September, 2015, an amount he claims should be $629.00. Although Mr. Keay’s complaint is 

short on details, it appears that the Court lacks subject matter jurisdiction over his claim for 

nonpayment of benefits because Mr. Keay has not alleged that he has exhausted his 

administrative remedies through the Social Security Administration.

“Federal courts are courts of limited jurisdiction” and there is a presumption “that a cause 

[of action] lies outside this limited jurisdiction [.]” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994). Agencies of the federal government, like the Social Security 

Administration (SSA), are generally immune from suit and can only be sued in federal court if 

the United States waives its immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Because 

sovereign immunity is a jurisdictional issue, the terms of the United States’ consent to suit 

“define [a] court’s jurisdiction to entertain the suit.” Kersh v. Soc. Sec. Admin., No. 3:13-CV00582-SI, 2013 WL 3353854, at *2 (D. Or. July 3, 2013) (citing Meyer, 510 U.S. at 475; Kaiser 

v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir.2003) (“Absent a waiver of sovereign 

immunity, courts have no subject matter jurisdiction over cases against the government.”)). Any 
3 - OPINION & ORDER

waiver of sovereign immunity must be “unequivocally expressed,” and it will be strictly 

construed in favor of the sovereign. Kersh, 2013 WL 3353854 at * 2 (citing United States v. 

Nordic Vill. Inc., 503 U.S. 30, 34 (1992)).

The Social Security Act includes a narrow waiver of sovereign immunity—under the 

Act, a plaintiff may only seek judicial review of a “final decision” of the Commissioner. A final 

decision includes a waivable component—exhaustion of Defendant’s prescribed administrative 

remedies—and a nonwaivable component—the presentation of the claim to Defendant, resulting 

in a reviewable decision. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 328 (1976)). 

Administrative exhaustion necessarily includes “all three stages of the administrative appeals 

process.” See Bowen v. City of N.Y., 476 U.S. 467, 482 (1986); see also 20 C.F.R. §§ 404.900, 

416.1400 (describing the four step administrative process as including an initial determination, 

reconsideration, a hearing before an administrative law judge, and review by the Appeals 

Council).

In other words, before bringing suit in this Court, Mr. Keay must first present his 

complaint to the Social Security Administration and challenge the failure to pay him his 

September benefit through the available administrative review process in that agency. Allowing 

the Social Security Administration the chance to review his claim and, if appropriate, correct any 

error could eliminate the need for judicial involvement altogether. McCarthy v. Madigan, 503 

U.S. 140, 144–45 (1992). Until Mr. Keay presents his dispute to the SSA and receives a final 

decision from the agency about his September benefits, this Court does not have subject matter 

jurisdiction over his claim. 

Accordingly, Mr. Keay’s complaint is dismissed, with leave to amend. If Mr. Keay has 

already challenged the SSA’s failure to pay his September benefit and received a final decision 
4 - OPINION & ORDER

from the Agency, he should submit an amended complaint and include specific allegations to 

that effect. If that is the case, Mr. Keay must submit his amended complaint within thirty (30) 

days of the date listed at the end of this Order. 

CONCLUSION

For the reasons stated, Mr. Keay’s application to proceed in forma pauperis [2] is granted

and his IFP status is confirmed. His complaint [1] is dismissed sua sponte without prejudice for 

failing to exhaust his administrative remedies. Mr. Keay may file an amended complaint, 

consistent with this Opinion & Order, within 30 days of the date below. The Clerk’s Office is 

directed to withhold issuance of any summons until further order of the Court.

IT IS SO ORDERED.

Dated this day of __________________, 2015.

 

MARCO A. HERNÁNDEZ

United States District Judge