IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICK N. ANDERSON, :

Plaintiff, :

vs. : CA 09-0577-KD-C

MICHAEL J. ASTRUE, :

Commissioner of Social Security, 

Defendant. :

REPORT AND RECOMMENDATION

This matter is before the undersigned on Defendant’s Motion to

Dismiss Plaintiff’s Complaint for Failure to Exhaust His Administrative

Remedies, (Doc. 12) filed December 15, 2009. After consideration of the

motion and the Court record, it is the undersigned’s recommendation that it

be GRANTED. 

I. Background.

On September 4, 2009, Plaintiff filed the instant complaint (Doc. 1)

asking for a “permanent injunction enjoining the Defendant’s [sic] in any

active concert of participation from engaging in any oppressive,

unconscionable, unfair, outrageous, and unreasonable practice.” (Id. at 1.) 

Plaintiff’s complaint also prays for “a [possibly separate] permanent

injunction engaging [sic] the Defendant’s [sic] in any concert of

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participation from engaging in any unconscionable, and illegally

discriminatory, provision, ambiguities, clauses, and any other

technicalities.” (Id.) Finally, Plaintiff requests that he be awarded

$100,000,000, without explanation. (Id.)

In his Brief in Support of the Plaintiff’s Verified Complaint (Doc. 2),

Plaintiff stretches the limit of the undersigned’s sense of understanding. A

sample paragraph:

New York Central R.R. versus White, 243 U.S. id. At 201

(1917), it stated the court did seem twice to suggest that

abolition without reasonable substitution/option would raise a

Due Process problem. The claimant’s Patrick Neal Anderson

argue if the honorable District Court refuse to hear this case

because lack of jurisdiction. The Social Security Hearing and

Appeal Council in Falls Church, Virginia does not need to

make a decsion on the claimant’s appeal and the honorable

District Court also violated the 5th Amendment Due Process

Clause to the U.S. Constitution without reasonable

substitution or option this should shock the conscience of the

honorable District Court.

(Doc. 2, p. 2.)

Regardless, on December 15, 2009, Defendant filed a Motion to

Dismiss Plaintiff’s Complaint for Failure to Exhaust His Administrative

Remedies (Doc. 12), arguing that Plaintiff has not received a final decision

from the Commissioner of Social Security because he filed a request with

the agency for a hearing on their decision to deny him benefits, and that

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 Plaintiff’s applications for benefits were denied on August 10, 2009; Plaintiff filed the

current action on September 4, 2009; and then (strangely) Plaintiff filed a request for hearing

with the Social Security Administration on October 5, 2009. (Id.) 

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request is still pending.1 (Id. at 2.) Attached to Defendant’s motion to

dismiss is a document labeled “Declaration of Earnest Baskerville Court

Case Preparation and Review Branch 3 Office of Disability Adjudication

and Review Social Security Administration” (Doc. 12-1) in which Mr.

Baskerville relates that on June 25, 2004, an Administrative Law Judge

issued a decision denying Plaintiff’s claims for a period of disability,

disability insurance benefits, and supplemental social security income, but

that Plaintiff never filed a request to have that decision reviewed. (Id. at 2-

3.) Mr. Baskerville also reveals that Plaintiff made “subsequent” claims for

a period of disability, disability benefits, and supplemental social security

income on June 22, 2009, and when this second set of claims was denied on

August 10, 2009, that Plaintiff filed a request for a hearing of these claims,

a request that is still currently pending. (Id. at 3.) 

II. Discussion.

A. Absence of a Final Decision

42 U.S.C. § 405(g) states, in part:

Any individual, after any final decision of the Commissioner

of Social Security made after a hearing to which he was a

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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.

Id. (emphasis added). 42 U.S.C. § 405(h) continues by explaining that it is

the sole source of jurisdictional authority for judicial review of a decision of

the Commissioner of Social Security:

The findings and decision of the Commissioner of Social

Security after a hearing shall be binding upon all individuals

who were parties to such hearing. 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.

Id. (emphasis added).

The above language highlights the major deficiency of Plaintiff’s

current filing: because his request for a hearing regarding the denial of his

benefits is still pending, and his claims do not fit into the parameters of the

sole jurisdictional vehicle that would properly bring his claims before this

Court, as there has been no final decision regarding them. Remember, as

the Supreme Court said in United States v. Babcock, 250 U.S. 328, 39 S.Ct.

464 (1919), “the United States, when it creates rights in individuals against

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itself, is under no obligation to provide a remedy through the courts,” and

“where a statute [such as 42 U.S.C. §§ 405(g) and (h)] creates a right and

provides a special remedy, that remedy is exlusive.” Id. at 331 (internal

citations omitted). In the specific context of social security, the Eleventh

Circuit has added that “the remedies outlined [in 42 U.S.C. § 405(g)] are the

exclusive source of federal court jurisdiction over cases involving [social

security income].” Jackson v. Astrue, 506 F.3d 1349, 1353 (2007). See

also Barron v. Astrue, 2009 WL 3642768, *1 (M.D.Ga.) (stating that “[t]he

exclusive jurisdictional basis for judicial review of final decisions on claims

arising under Title II and/or Title XVI of the Act is provided for and limited

by sections 205(g) and (h), 42 U.S.C. § 405(g) and (h).”); Wimberly v.

Astrue, 2009 WL 4730310, *2 (M.D.Ga.) (“42 U.S.C. § 405(g) is the

exclusive jurisdictional basis for judicial review of cases arising under the

Act.”).

Although the term “final decision” is undefined by the statute, the

Act instead “leav[es] it to the Commissioner to give meaning to that term

through regulations.” Wimberly, 2009 WL 4730310, *2 (citing Sims v.

Apfel, 530 U.S. 103, 106 (2000)). See also Weinberger v. Salfi, 422 U.S.

749, 767 (1975) (same). 20 C.F.R. § 404.900, then, details the existence of

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four (4) distinct steps that must be completed before a decision becomes

final:

(a) Explanation of the administrative review process. This

subpart explains the procedures we follow in determining

your rights under title II of the Social Security Act. The

regulations describe the process of administrative review and

explain your right to judicial review after you have taken all

the necessary administrative steps. These procedures apply

also to persons claiming certain benefits under title XVIII of

the Act (Medicare); see 42 CFR 405.701(c). The

administrative review process consists of several steps, which

usually must be requested within certain time periods and in

the following order:

(1) Initial determination. This is a determination we make

about your entitlement or your continuing entitlement to

benefits or about any other matter, as discussed in § 404.902,

that gives you a right to further review.

(2) Reconsideration. If you are dissatisfied with an initial

determination, you may ask us to reconsider it.

(3) Hearing before an administrative law judge. If you are

dissatisfied with the reconsideration determination, you may

request a hearing before an administrative law judge.

(4) Appeals Council review. If you are dissatisfied with the

decision of the administrative law judge, you may request that

the Appeals Council review the decision.

(5) Federal court review. When you have completed the steps

of the administrative review process listed in paragraphs

(a)(1) through (a)(4) of this section, we will have made our

final decision. If you are dissatisfied with our final decision,

you may request judicial review by filing an action in a

Federal district court.

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(6) Expedited appeals process. At some time after your initial

determination has been reviewed, if you have no dispute with

our findings of fact and our application and interpretation of

the controlling laws, but you believe that a part of the law is

unconstitutional, you may use the expedited appeals process.

This process permits you to go directly to a Federal district

court so that the constitutional issue may be resolved. 

20 C.F.R. § 404.900(a) (emphasis added). Here, it is easy to see where

Plaintiff’s argument fell off the tracks. After receiving an unfavorable

initial determination concerning his current claims, Plaintiff failed to seek

reconsideration through the Administration, and instead requested a hearing

before an administrative law judge (ALJ). Even if this had been the correct

step in the sequence, however, Plaintiff would still not have received a final

decision, as his request for a hearing is still pending. As the regulation

immediately above clearly indicates, an Appeals Council decision must be

passed down after the hearing (or after the request for a hearing is denied)

in order for a final decision to be issued. Clearly, then, Plaintiff’s claims

have not undergone at least two of the clearly-outlined steps necessary for

Plaintiff to have received a final decision and thus invoke the jurisdiction of

this Court.

B. Exception Inapplicable to Plaintiff

There exists one exception to the exhaustion doctrine outlined above. 

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In Heckler v. Ringer, 466 U.S. 602 (1984), the Court outlined three

scenarios in which it may be proper for the exhaustion requirement to be

waived: (1) where the Secretary has waived the exhaustion requirement,

believing exhaustion to be futile; (2) where a plaintiff raises a claim that is

“wholly collateral to their claim for benefits under the Act;” and (3) where a

plaintiff can make a “colorable claim” that an erroneous denial of benefits

at the early stages of the process will “injure them in a way that cannot be

remedied by the later payment of benefits.” Id. at 618 (internal citations

omitted). It is readily apparent to the undersigned that Plaintiff Anderson

has not satisfied any of these requirements, and so the exhaustion

requirement concerning his current claims is not, and has not been, waived.

As a result, Plaintiff Anderson’s claims have not been subject to a

final decision, and his complaint should be dismissed for lack of subject

matter jurisdiction. See, e.g., Heckler, 466 U.S. at 618, 626 (upholding

dismissal of Social Security claims where the exhaustion requirement was

not met); Jackson, 506 F.3d at 1358 (same); Cochran v. U.S. Health Care

Financing Admin., 291 F.3d 775 (11th Cir. 2002) (same); Wimberly, 2009

WL 4730310 at *3 (same). 

III. Conclusion.

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For all of the above reasons, it is the undersigned’s recommendation

that Defendant’s Motion to Dismiss Plaintiff’s Complaint for Failure to

Exhaust His Administrative Remedies, (Doc. 12) be GRANTED and that

Plaintiff’s claims be DISMISSED.

The instructions that follow the undersigned’s signature contain

important information regarding objections to the report and

recommendation of the Magistrate Judge.

DONE this the 15th day of January, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

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 Effective December 1, 2009, the time for filing written objections was extended to “14

days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

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l. Objection. Any party who objects to this recommendation or anything in it must,

within fourteen (14) days of the date of service of this document, file specific written

objections with the Clerk of this court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar an attack, on appeal, of the

factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855

F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)

(en banc). The procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days2 after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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