The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge
** E-filed December 20, 2011 **
United States District Court For the Northern District of California
INTERIM ORDER RE: DEFENDANT'S MOTION TO DISMISS [Re: Docket No. 7]
In this putative social security benefits appeal, defendant Michael Astrue, Commissioner of 17 the Social Security Administration, moved to dismiss for lack of subject matter jurisdiction. Dkt. 18 No. 7. In essence, the defendant argues that because the Administrative Law Judge ("ALJ") denied 19 plaintiff's request for a hearing as untimely, there has been no "final agency decision" in the 20 underlying social security benefits application, and plaintiff therefore cannot request judicial review 21 by this court. See id. This is a correct statement of the law. See 42 U.S.C. § 405(g) (granting a social 22 security benefits claimant the right to appeal a "final decision of the Commissioner" in federal 23 district court). 24
However, in her opposition to the motion to dismiss, plaintiff states a claim for a 25 constitutional due process violation. "Even though a claimant's failure to obtain a final decision . . . 26 deprives the district court of subject matter jurisdiction, the district court may waive a claimant's 27 failure to exhaust administrative remedies and grant her judicial review if she asserts a colorable 28 constitutional claim." Cardot v. Astrue, 2011 U.S. Dist. LEXIS 100548, *4-5 (W.D. Wash. Aug. 22, 2011) (citing Califano v. Sanders, 430 U.S. 99, 109 (1977)). At the December 20 hearing on 2 defendant's motion to dismiss, plaintiff's counsel conceded that the constitutional claim is the only 3 possible basis for federal subject matter jurisdiction since plaintiff failed to obtain a final agency 4 decision. 5
In order to fully develop the record on the constitutional claim, defendant shall submit to this 6 court within 30 days of the date of this order: (1) Eric Johnson's March 2010 letter to the Social 7 Security Administration; (2) a transcript of the hearing that the ALJ held to determine if plaintiff 8 was entitled to a hearing on the merits of her application; and (3) any and all documents and 9 materials that the parties submitted to the ALJ or that the ALJ considered in conjunction with or 10 anticipation of the hearing that was held.
Further, within 10 days of the filing of the materials listed above, the parties may submit supplemental briefing focused on this legal issue: when a written notice from the SSA is not 13 received by either plaintiff or her attorney, is plaintiff's constitutional right to due process satisfied 14 by an oral notice received by an employee of plaintiff's attorney?
Notice will be electronically mailed to:
Tom F. Weathered firstname.lastname@example.org Shea Lita Bond email@example.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.
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