United States District Court, S.D. California
REPORT AND RECOMMENDATION RE DEFENDANT'S MOTION TO DISMISS [Doc. No. 15.]
KAREN S. CRAWFORD, Magistrate Judge.
Plaintiff Roseanna Savanna Hunnicott-Lott has filed an Amended Complaint seeking judicial review of the dismissal of her request for a hearing on her claim for supplemental social security income and disability insurance benefits under the Social Security Act ("SSA"). [Doc. No. 10.] She asserts jurisdiction under Title 42, United States Code, Section 405(g), of the SSA and Title 42, United States Code, Section 1331. [Doc. No. 10, at pp. 10, at p. 1.]
Defendant Commissioner of Social Security ("Commissioner") has filed a Motion to Dismiss plaintiff's Amended Complaint for lack of subject matter jurisdiction. [Doc. No. 15.] In addition, plaintiff filed a Response to the Motion to Dismiss [Doc. No. 17] and defendant filed a Reply [Doc. No. 18]. For the reasons outlined below, it is RECOMMENDED that the District Court DENY the Motion to Dismiss and REMAND the case to the Commissioner for further consideration.
Factual and Procedural Background
In the Amended Complaint, it is alleged that plaintiff sought benefits under the SSA "due to a combination of mental and physical impairments, including intellectual deficits and chronic pain." [Doc. No. 10, at p. 1.] However, her claim was denied at the initial and reconsideration levels. She then filed a request for hearing in August 2011. [Doc. No. 15-1, at p. 2; Doc. No. 10, at p. 1.] A hearing was scheduled for June 14, 2012 at 10:00 a.m. before an Administrative Law Judge ("ALJ"). [Doc. No. 10, at p. 2; Doc. No. 15-1, at p. 2.]
In the Motion to Dismiss, defendant contends that plaintiff "did not appear at the hearing" that was scheduled for June 14, 2012, even though she was provided with notice advising her that failure to appear could result in a dismissal. Defendant also asserts that a reminder notice was sent to plaintiff about the hearing, and the hearing officer contacted plaintiff's representative about the hearing on June 6, 2012. [Doc. No. 15-1, at p. 2.]
Plaintiff's Response to defendant's Motion to Dismiss and plaintiff's Amended Complaint, which includes an attached affidavit by her attorney, both provide a more detailed account of what took place before and after the time set for the hearing on June 14, 2012. Plaintiff was represented by attorney Chris O'Connor when her application for benefits was filed. [Doc. No. 10, at p. 2.] However, when the hearing was scheduled, Mr. O'Connor arranged for plaintiff to be represented during the hearing by attorney Shaneela Marlett (formerly Shaneela Khan). [Doc. No. 10, at p. 2.] However, plaintiff and Ms. Marlett did not have time to meet in person prior to the hearing date so plaintiff could sign an Appointment of Representative form (SSA-1696) allowing Attorney Marlett to represent her at the hearing. [Doc. No. 10, at p. 2.]
On June 14, 2012, Attorney Marlett arrived at the hearing office at 9:45 a.m., 15 minutes before the hearing was scheduled to begin. [Doc. No. 10-1, Marlett Aff., at p. 2.] At 9:50 a.m., Attorney Marlett was called into the courtroom by the ALJ's monitor. She explained that plaintiff had not yet arrived but was on her way. She also explained that plaintiff would sign the Appointment of Representative form as soon as she arrived. [Doc. No. 10-1, Marlett Aff., at p. 2.] The ALJ indicated he would give plaintiff ten minutes to get to the hearing office. [Doc. No. 10-1, Marlett Aff., at p. 2.]
At 10:10 a.m., plaintiff had not arrived, so Attorney Marlett went to the lobby to wait for her. Plaintiff arrived at 10:18 a.m. The security service listed her name and arrival time in a ledger. Plaintiff signed the Appointment of Representative form. Attorney Marlett then wrote a note and sent it in to the ALJ with a signed copy of the form. The note explained that plaintiff had arrived late due to "severe pain" and asked the ALJ not to dismiss the case. [Doc. Nos. 10, at p. 2; 10-1, Marlett Aff., at p. 2; 10-2, at p. 2.] Attorney Marlett also told the ALJ's staff that plaintiff would wait in case the ALJ had time to see her later that day. However, the staff member returned a few minutes later and told Attorney Marlett that the ALJ "refused to hold [plaintiff's] hearing at any time that day." [Doc. No. 10-1, Marlett Aff., at p. 2.] Defendant has not submitted anything to dispute this more detailed recitation of the facts by plaintiff or her attorney.
On or about June 25, 2012, the ALJ dismissed plaintiff's hearing request and advised her that she could appeal the dismissal to the Appeals Council. [Doc. No. 15-1, at p. 2; Doc. No. 10, at p. 3; Doc. No. 20, Weigel Decl., Ex.3a, at pp. 25-29.] The Notice of Dismissal advised plaintiff of her right to file an appeal with the Appeals Council. [Doc. No. 20, Weigel Decl., at pp. 25-27.] The ALJ also issued a two-page Order of Dismissal on June 25, 2012 explaining that plaintiff's hearing request was dismissed for failure to show good cause for not appearing at the hearing as scheduled. [Doc. No. 20, Weigel Decl., at pp. 28-29.]
Plaintiff filed a request for review of the ALJ's dismissal, but the Appeals Council denied that request on September 26, 2012. [Doc. No. 20, Weigel Decl., at pp. 30-32; Doc. No. 15-1, at p. 2.] Next, plaintiff filed the original Complaint in this action on November 12, 2012. [Doc. No. 1.] An Amended Complaint was filed on February 7, 2013. [Doc. No. 10.]
Citing the Ninth Circuit's decision in Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1990), defendant argues in the Motion to Dismiss that subject matter jurisdiction is lacking under Section 405(g) of the SSA, because plaintiff's hearing request was dismissed, so she did not receive a final decision of the Commissioner after a hearing. Defendant also contends federal subject matter jurisdiction is lacking under Section 1331, because plaintiff has not stated a colorable constitutional claim. Relying on the Ninth Circuit's decision in McNatt v. Apfel, 201 F.3d 1084 (9th Cir. 2000), plaintiff argues that the District Court has jurisdiction under Section 405(g), because the record shows she exhausted her administrative remedies to the extent possible under the circumstances. Alternatively, plaintiff argues that the District Court has jurisdiction under Section 1331 because she has alleged and supported a colorable constitutional due process claim.
When a defendant files a motion to dismiss under Federal Rule 12(b)(1) and attacks the factual basis for subject matter jurisdiction, the District Court may "look beyond the complaint" and consider affidavits submitted by the parties. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish ...