United States District Court, W.D. Oklahoma
MARKEITH D. TUCKER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Markeith Tucker, appearing pro se, filed his Complaint (Doc.
No. 1) on April 25, 2018. See Compl. (Doc. No. 1).
This matter has been assigned to the undersigned Magistrate
Judge pursuant to the Court's General Order in In re:
Social Security Cases, Gen. Order No. 16-4 (W.D. Okla.)
(eff. Jan. 1, 2017). Upon review, the undersigned recommends
dismissal of the Complaint.
Requirement of Subject-Matter Jurisdiction
matter jurisdiction defines the court's authority to hear
a given type of case” and “represents the extent
to which a court can rule on the conduct of persons or the
status of things.” Carlsbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009) (citations and internal
quotation marks omitted). “[T]he district courts have
an independent obligation to address their own subject-matter
jurisdiction and can dismiss actions sua sponte for
a lack of subject-matter jurisdiction.” City of
Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1093
(10th Cir. 2017); see also Fed. R. Civ. P. 12(h)(3).
Complaint, Plaintiff alleges that during the course of
pursuing Supplemental Security Income (“SSI”)
benefits at the state level, he submitted a request to the
Social Security Administration (“SSA”) for an
“emergency advance payment” pursuant to 20 C.F.R.
§ 416.520. See Compl. at 1; Compl. Ex. 1 (Doc.
No. 1) at 1; Compl. Ex. 3 (Doc. No. 1-3) at 1-2. This
regulation provides that the SSA may pay a one-time advance
payment “to an individual who is initially applying for
benefits who is presumptively eligible for SSI benefits and
who has a financial emergency.” 20 C.F.R. §
416.520(a). Plaintiff complains that his request was
improperly denied, or that its disposition has been delayed,
and that he is being treated unfairly by the relevant
Administrative Law Judge (“ALJ”) and by state
disability-agency employees. See Compl. at 1; Compl.
Ex. 2 (Doc. No. 1-2) at 1. Plaintiff further explains that he
is presently waiting for an administrative hearing to be
conducted on his SSI application. See Compl. Ex. 2,
Court's jurisdictional basis for reviewing cases arising
under the Social Security Act is found in 42 U.S.C. §
405(g), which provides that judicial review is available
“after any final decision of the Commissioner of Social
Security made after a hearing to which [the individual] was a
party.” 42 U.S.C. § 405(g). Liberally construed,
Plaintiff's Complaint presents a request for judicial
review of the SSA's decision whether to award Plaintiff
an emergency advance payment in connection with his benefits
request. See Compl. at 1; Compl. Ex. 1, at
Plaintiff affirmatively states that he has not yet received a
hearing on his SSI application; thus, there has been no
“final decision.” 42 U.S.C. § 405(g);
see Compl. Ex. 2, at 1; see also Mathews v.
Eldridge, 424 U.S. 319, 328 (1976) (“[T]he
requirement that there be a final decision by the Secretary
after a hearing [is] regarded as central to the requisite
grant of subject-matter jurisdiction.” (omission and
internal quotation marks omitted)).
the discretionary nature of the SSA's authority to award
emergency advance payments means that-barring the possibility
of some extraordinary set of circumstances not present
here-there can be no judicial review of the SSA's
exercise of that authority. The Fifth Circuit Court of
Appeals has held that the decision whether to award emergency
advance payments is committed to the SSA's
“unreviewable discretion” and “is not
suitable for judicial review.” Green v.
Heckler, 742 F.2d 237, 239, 240 (5th Cir. 1984). In
Green, the appellate court affirmed the district
court's dismissal of a request for judicial review of the
denial of such payments, finding that the district court
lacked jurisdiction under § 405(g), 28 U.S.C. §
1331, or 28 U.S.C. § 1361. See Id. at 240-41.
The undersigned finds this decision persuasive, and
Plaintiff's pleading fails to establish any alternative
grounds for the Court to exercise jurisdiction over this
matter. See Fed. R. Civ. P. 8(a)(1); see also
Jackson v. Comm'r of Soc. Sec., No.
3:12-cv-957-J-39PDB, 2015 WL 13650915, at *1 (M.D. Fla. May
8, 2015) (noting that the district court had held that it
lacked the authority to grant an emergency advance payment
under 20 C.F.R. § 416.520 or "to review the denial
of a request for such payment").
outlined above, it is recommended that the Complaint (Doc.
No. 1) be DISMISSED without prejudice for lack of
OF RIGHT TO OBJECT
parties are advised of their right to file an objection to
the Report and Recommendation with the Clerk of this Court by
May 21, 2018, in accordance with 28 U.S.C. § 636 and
Federal Rule of Civil Procedure 72. The parties are further
advised that failure to timely object to this Report and
Recommendation waives the right to appellate review of both
factual and legal issues contained herein. See Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
Report and Recommendation disposes of all issues referred to
the undersigned ...