IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICK N. ANDERSON, )

)

Plaintiff, )

v. ) CIVIL ACTION NO. 05-0698-CG-M

)

STUART A. WEIN, individually and )

in his official capacity as Administrative )

Law Judge, )

)

Defendant. )

ORDER

This matter is before the court on defendant’s motion to dismiss (Doc. 12) and plaintiff’s

response thereto (Doc. 14). The court finds that this court lacks subject matter jurisdiction over

this case and that, therefore, the motion is due to be granted. 

DISCUSSION

A. Dismissal Standard

A motion to dismiss should not be granted “unless the plaintiff can prove no set of facts

which would entitle him to relief.” Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th

Cir.1996) (quoting Peterson v. Atlanta Housing Authority, 998 F.2d 904, 912 (11th Cir.1993)). 

In making this determination, the court must “take all the allegations in the complaint as true,

and view the complaint in the light most favorable to the plaintiff.” Id. However, to survive a

motion to dismiss, a plaintiff may not merely “label” his claims. At a minimum, the Federal

Rules of Civil Procedure require “a short and plain statement of the claim” that “will give the

defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley

v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (quoting FED.R.CIV.P.

8(a)(2)).

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B. Plaintiff’s Claims

Plaintiff filed his complaint seeking compensatory and injunctive relief for alleged

wrongs committed by defendant, an administrative law judge for the Social Security

Administration (“SSA”), when the defendant considered and ultimately denied plaintiff’s

application for Social Security disability insurance benefits and Supplemental Security Income. 

Defendant moves to dismiss this action for lack of jurisdiction. 

The jurisdiction of this court to review actions taken by the SSA is governed by § 205(g)

of the Social Security Act (codified at 42 U.S.C. § 405(g)) as follows:

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 Commission may allow. Such action shall be brought in

the district court of the United States for the judicial district in which the plaintiff

resides, or has his principal place of business, or, if he does not reside or have his

principal place of business within any such judicial district, in the United States

District Court for the District of Columbia.

42 U.S.C. § 405(g). Section 405(h) provides the following:

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). Our jurisprudence dictates that if a right to sue the United States is created

by statute, and the statute provides a specific remedy, that remedy becomes the exclusive method

by which a claim may be brought. United States v. Babcock, 250 U.S. 328, 331 (1919).

Therefore, any lawsuit seeking judicial review of the findings and decision of the SSA must be

brought in compliance with § 405(g) unless the plaintiff can present a colorable constitutional

claim. See Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986 (1977) (finding that the

requisites of § 405(g) were not met and therefore, that the decision was not subject to review by

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the federal courts unless the plaintiff presented a colorable constitutional claim); Brandyburg v.

Sullivan, 959 F.2d 555, 562 (5th Cir. 1992) (finding that the court “must affirm the district

court’s dismissal unless Brandyburg has raised a colorable constitutional claim.”).

Plaintiff’s complaint alleges due process violations brought pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). “[A] Bivens action

is the federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C. §

1983.” Hartman v. Moore, 126 S.Ct. 1695, 1700 n. 2 (2006). The Supreme Court has held that

Bivens relief was unavailable for Social Security recipients whose benefits had been terminated

improperly in violation of the Due Process Clause. Schweiker v. Chilicky, 487 U.S. 412, 428-

29, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). Given the "elaborate remedial scheme devised by

Congress" to deal with the improper denial or termination of disability benefits, the Court saw no

reason to tread on congressional prerogatives by creating a new judicial remedy for the particular

harm suffered by the claimants. Id. at 414; see also Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct.

2404, 76 L.Ed.2d 648 (1983) (Because plaintiff’s claims arose out of a "relationship ... governed

by comprehensive procedural and substantive provisions giving meaningful remedies against the

United States," the Court concluded "it would be inappropriate ... to supplement that regulatory

scheme with a new judicial remedy."). Moreover, plaintiff fails to allege any facts to support a

due process claim. As stated above, merely labeling a claim is insufficient to survive a motion to

dismiss. 

Upon review of plaintiff’s claims, the court concludes that he has failed to raise a

colorable constitutional claim of any kind. Plaintiff alleges the ALJ posed an improper

hypothetical question to a vocational expert, did not read or properly consider exhibits, and did

not allow “a fair hearing for opening and closing statement” or a “fair hearing for a direct and

cross-examination.” The complaint does not indicate why the ALJ’s actions were allegedly

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unfair or improper. Such allegations appear to simply attack the conclusions and findings of

fact of the ALJ. As discussed above, to the extent plaintiff claims that the ALJ’s conclusions

and findings of fact are faulty, plaintiff must seek review through § 405(g) of the Social Security

Act. The court finds that the factual allegations asserted in plaintiff’s complaint do not support a

constitutional claim.

CONCLUSION

For the reasons stated above, defendant’s motion to dismiss for lack of subject matter

jurisdiction (Doc. 12) is GRANTED, and this case is hereby DISMISSED.

DONE and ORDERED this 4th day of August, 2006. 

 /s/ Callie V. S. Granade

 CHIEF UNITED STATES DISTRICT JUDGE

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