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Tucker v. Berryhill

United States District Court, W.D. Oklahoma

April 30, 2018

MARKEITH D. TUCKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Requirement of Subject-Matter Jurisdiction

         “Subject 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).

         II. Discussion

         In his 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, at 1.

         The 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 1.[1] 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)).

         Moreover, 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").

         RECOMMENDATION

         As outlined above, it is recommended that the Complaint (Doc. No. 1) be DISMISSED without prejudice for lack of subject-matter jurisdiction.

         NOTICE OF RIGHT TO OBJECT

         The 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).

         This Report and Recommendation disposes of all issues referred to the undersigned ...


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