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Thomas v. Astrue


July 14, 2009


The opinion of the court was delivered by: Padova, J.


Defendant Michael J. Astrue has filed a "Motion to Dismiss Plaintiff's Complaint Under the Social Security Act and to Deny Plaintiff's Application for Attorney Fees under the Equal Access to Justice Act." For the following reasons, we grant the Motion in its entirety.

In 2001, Plaintiff Curt Thomas filed an application with the Social Security Administration ("SSA"), seeking both Supplemental Security Income ("SSI") and Title II Widower's Insurance Benefits ("Widower Benefits"). When benefits were denied, Plaintiff appealed through the administrative process. Eventually, on March 14, 2007, an Administrative Law Judge ("ALJ") issued a final decision finding that Plaintiff had been continuously disabled since December 27, 2000, and was therefore medically eligible to receive both SSI and Widower Benefits. The ALJ directed the SSA to determine whether there were any other Social Security regulations that prohibited or limited the payment of benefits.

Plaintiff alleges in his Complaint that the SSA subsequently (1) denied him benefits for periods in which it believed him to be incarcerated; (2) paid him only a small portion of the Widower Benefits that he was owed; (3) withheld attorney's fees and medical premiums from his benefits; and (4) failed to pay him a Lump Sum Death Benefit to which he was entitled. Plaintiff asks us to review these subsequent decisions and grant him benefits that he was erroneously denied. He also asks that we award him attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. Defendant argues, among other things, that we lack jurisdiction over Plaintiff's claims because the SSA decisions that Plaintiff challenges are not final decisions subject to judicial review. We agree and therefore dismiss Plaintiff's claims for lack of jurisdiction. In addition, we deny Plaintiff's request for attorney's fees for the reasons set forth below.

Where, as here, a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) attacks the existence of subject matter jurisdiction in fact, "no presumptive truthfulness attaches to plaintiff's allegations and the Court may weigh the evidence to satisfy itself that subject matter jurisdiction exists." Stevens v. Astrue, Civ. A. No. 08-18, 2008 WL 4748178, at *4 (W.D. Pa. Oct. 24, 2008) (citing Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). This is "[b]ecause the issue in a factual 12(b)(1) motion is the trial court's... very power to hear the case...." Id. (citing Mortenson, 549 F. 2d at 891). Plaintiff nevertheless bears the burden of showing that jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).

The "exclusive jurisdictional basis" for judicial review of claims arising under the Social Security Act is set forth in 42 U.S.C. § 405(g), which provides that an individual may obtain review of "'a final decision of the Commissioner of Social Security made after a hearing to which he was a party.'" Stevens, 2008 WL 4748178, at *4 (quoting 42 U.S.C. § 405(g)). Under Social Security regulations, "a 'final decision' is one rendered after a claimant has completed a four-step administrative review process." Id. at *6; Callender v. Soc. Sec. Admin., 275 Fed. App'x 174, 175 (3d Cir. 2008). In that review process, any claimant who is unhappy with an initial determination may ask for reconsideration. 20 C.F.R. § 416.1400(a)(1)-(2). If reconsideration is denied, he can request a hearing before an ALJ, after which he may request the SSA Appeals Council to review the ALJ's determination. Id. at § 416.1400(a)(3)-(4). "When [the claimant has] completed the steps of the administrative review process... [the SSA] will have made [its] final decision." Id. at § 416.1400(a)(5). If the claimant is "dissatisfied with" that decision, he "may request judicial review by filing an action in a Federal district court." Id.

In this case, the ALJ issued a final and appealable decision on March 14, 2007, which was fully favorable to Plaintiff on the issue of his medical eligibility for benefits. Plaintiff's current Complaint does not concern that final decision, but instead concerns subsequent SSA determinations regarding his limited eligibility for benefits based on SSA regulations.*fn1 Plaintiff does not allege, and various attachments to his Complaint do not disclose, that he appealed any of the now-challenged determinations through the SSA's established administrative review process.*fn2 Likewise, he does not allege either in the Complaint or in his response to Defendant's motion that there was ever "a final decision made after a hearing" on any of the issues he now asks us to address.*fn3 In contrast, Defendant specifically and repeatedly asserts that "there is nothing in the Agency's records to indicate that Plaintiff filed a timely appeal, nor indicating that any such appeal (if any) was exhausted." (Def.'s Mem. at 5-7.) Under these circumstances, we conclude that we do not have jurisdiction to review Plaintiff's claims. In addition, we find that, to the extent that Plaintiff challenges the withholding of attorney's fees, we have no jurisdiction because the United States Court of Appeals for the Third Circuit has explicitly stated that a fee determination "is not a final decision under § 405(g) which is subject to judicial review." Palmer v. Barnhart, 89 Fed. App'x 806, 809 (3d Cir. 2004).

Plaintiff also seeks attorney's fees under the Equal Access to Justice Act, stating that he is "surely... entitled to something" for representing himself against the Social Security Administration since the year 2000. (Compl. at 4); see also 28 U.S.C. § 2412(b) ("[A] court may award reasonable fees and expenses of attorneys... to the prevailing party in any civil action brought by or against the United States."). However, pro se litigants are not entitled to attorney's fees under the EAJA. See Asemani v. Ridge, Civ. A. No. 03-6833, 2004 WL 2244542, at *5 (E.D. Pa. Sept. 30, 2004) (citing Zucker v. Westinghouse, 374 F.3d 221, 228-29 (3d Cir. 2004)). Accordingly, we cannot grant Plaintiff the relief he seeks.

For the foregoing reasons, we dismiss Plaintiff's Complaint in its entirety and deny his request for attorney's fees. An appropriate Order accompanies this Memorandum.

John R. Padova, J.

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