The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Defendant seeks dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction based on plaintiff's having brought a claim for relief under a class action settlement in the Northern District of California. The Commissioner also seeks dismissal of the complaint based on mootness and lack of exhaustion. Plaintiff, proceeding in pro se, has filed an opposition. The matter was set for hearing on October 6, 2011; however, plaintiff did not appear as the record reflects that he had his notice of the hearing returned as undeliverable. Geralyn Gulseth appeared telephonically for defendant. The parties have consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
Having reviewed the papers in support of and in opposition to the motion, the court now issues the following order.
On September 17, 2010, plaintiff initiated this action by filing a "writ of mandate."*fn1
Plaintiff, an SSI recipient, alleges that his situation is similar to a class action settlement in the Northern District of California, Martinez v. Astrue, Civ.S. 08-4735 CW, which was settled on September 24, 2009. (Def.'s Mot., Ex. 3.) That case addressed a "fugitive felon" policy of "denying or suspending benefits to persons on the basis of an outstanding felony arrest warrant..." (Id., Ex. 1.) The complaint is very confusing but appears to allege that plaintiff is a former felon who had a warrant issued against him by the State of Michigan in 1987, which was not dismissed until July 1, 2005, some 18 years later. (Compl. ¶ 7.) Plaintiff alleges that the SSA discontinued his benefits in May, 2005 based on the warrant. (Pl.'s Opp. at 2.) Plaintiff claims that despite the dismissal of the warrant, he was assessed an overpayment from 2003 through 2005, in the amount of $20,021.34. (Id. at 3.) In addition to collecting on the overpayment which to date amounts to $5,460, plaintiff claims that the SSA took his entire monthly allotment from May, 2005 through December, 2005, which totals approximately $5,000 to $6,000.
The Commissioner submits the following grounds for dismissal: that any claim relating to the Martinez settlement must be adjudicated in the Northern District as the proper forum; that the relief plaintiff seeks has been provided pursuant to the Martinez settlement and therefore these claims are moot; and to the extent any claims are made outside of the Martinez settlement, plaintiff has not exhausted his administrative remedies. Defendant filed a supplemental statement which modifies its position, as will be addressed infra.
I. LEGAL STANDARD FOR MOTION TO DISMISS
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn2
"[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988). The burden of proof on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 445, 62 S.Ct. 673, 675 (1942); Thornhill Publishing Co. v. General Tel. & ...