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Eisenberg v. Social Security Administration

March 29, 2010

MICHAEL D. J. EISENBERG, PLAINTIFF,
v.
SOCIAL SECURITY ADMINISTRATION AND MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Michael D. J. Eisenberg, an attorney who is representing himself pro se,filed the above-captioned matter seeking judicial review of an administrative law judge's failure to act on his request for attorney's fees in connection with his representation of a claimant in administrative proceedings before the Social Security Administration. Plaintiff has named as Defendants in this action the Social Security Administration ("SSA") and Commissioner of the SSA, Michael J. Astrue (collectively, "Defendants"). This matter comes before the Court on Defendants' [9] Motion to Dismiss, in which Defendants assert that this Court lacks subject matter jurisdiction over Plaintiff's claims. After a thorough review of the parties' submissions, applicable case law, statutory and regulatory authority as well as the record of this case as a whole, the Court agrees that it lacks subject matter jurisdiction over Plaintiff's claims and shall therefore GRANT Defendants' [9] Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),*fn1 for the reasons that follow.

I. BACKGROUND

As set forth in the Complaint, Plaintiff is an attorney who practices before the SSA. See Compl. ¶ 4. On or about February 6, 2007, he was hired by an individual (hereinafter, "Claimant")*fn2 to represent her before the SSA in her efforts to secure social security benefits. Id. ¶ 5. A hearing was held before an administrative law judge ("ALJ") on or about November 15, 2007, regarding Claimant's benefit request, at which Claimant was awarded current, future and back benefits. Id. ¶ 8. The ALJ also awarded Plaintiff, Claimant's attorney, the full amount of attorney's fees requested. Id. ¶ 9.

Shortly thereafter, on or about December 3, 2007, Claimant (i.e., Plaintiff's client) wrote to the SSA stating that she believed Plaintiff's attorney's fees should be reduced. Id. ¶ 10. In response, on January 12, 2008, Plaintiff wrote a letter to the presiding ALJ explaining why he believed that he was in fact entitled to the full amount of attorney's fees requested. Id. ¶ 11. By letter dated January 15, 2008, the ALJ responded to Plaintiff that she was inclined to reduce his requested fees by approximately one-fifth to $1,000. Id. ¶¶ 12, 20. The ALJ gave no reason for the intended reduction in attorney's fees except to advise Plaintiff that her decision was based on "his performance in the hearing." Id. The ALJ further advised Plaintiff that he had 15 days in which to respond to her letter. Id. Plaintiff did so, providing a timely response by letter dated January 24, 2008. Id. ¶ 13.

Plaintiff, however, did not receive any response from the ALJ. Accordingly, on November 17, 2008, having failed to receive a final determination with respect to his request for attorney's fees, Plaintiff filed the above-captioned lawsuit seeking judicial review of the ALJ's inaction on his attorney's fees request. See generally Compl. Plaintiff's Complaint asserts two claims for relief under the APA. The first claim alleges that the ALJ's failure to issue a final decision on Plaintiff's request for attorney's fees violated section 555(b) of the APA by failing to conclude a matter presented to the SSA "within a reasonable time." Id. ¶¶ 13-17. The second claim alleges that the ALJ acted "arbitrarily and capriciously" in violation of section 706(2)(A) of the APA by: (a) failing to act on Plaintiff's request for attorney's fees; and (b) indicating in the January 15, 2008 letter that she was inclined to reduce his attorney's fees to $1,000.00. Id. ¶¶ 18-20. The Complaint further alleges that this Court has jurisdiction over Plaintiff's claims pursuant to the APA and 28 U.S.C. § 2501. Id. ¶¶ 2-3. As relief, Plaintiff seeks an order: (a) finding that the ALJ's January 15, 2008 letter arbitrary and capricious, id. ¶ 21; (b) declaring that Defendants acted with undue delay in responding to Plaintiff's January 24, 2008 rebuttal letter, id. ¶ 22; and (c) requiring the ALJ to either award Plaintiff his full fee or provide a substantive response to Plaintiff's January 24, 2008 rebuttal letter within 60 days of the Court's order, id. ¶ 23.

On February 19, 2009, subsequent to Plaintiff's filing of this lawsuit, the ALJ issued her final order with respect to Plaintiff's request for attorney's fees. See Defs.' MTD, Docket No. [9], Att. 1 (Order of Administrative Law Judge dated Feb. 19, 2009) (hereafter, the "Feb. 19, 2009 Order").*fn3 As set forth therein, the ALJ concluded that, "[u]nder the circumstances, it appears reasonable to award [Plaintiff] 75 percent of the agreed-upon fee." Id. at 2. Accordingly, the ALJ awarded Plaintiff a reduced fee of $3,975.00. Id.

Defendants have now filed a [9] Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Specifically, Defendants argue that Plaintiff has not stated a valid statutory basis for this Court's jurisdiction. While Plaintiff alleges in his Complaint that the Court has jurisdiction pursuant to the APA and 28 U.S.C. § 2501, Defendants contend that neither statutory provision affords the Court subject matter jurisdiction over Plaintiff's claims because: (a) the APA does not apply to matters arising under the Social Security Act; and (b) 28 U.S.C. § 2501 relates to the time for filing suit in the Court of Federal Claims and is therefore inapplicable to the case at hand. Defs.' MTD at 1-2. Defendants further note that although Plaintiff could have brought a suit for mandamus relief invoking the Court's jurisdiction under 28 U.S.C. § 1361, any such claim is now moot in light of the issuance of a final decision with respect to Plaintiff's attorney's fee request. Id. at 2. Finally, Defendants contend that any potential claim Plaintiff may wish to assert based on his dissatisfaction with the ALJ's final decision would similarly fail, as the SSA's decisions regarding attorney's fees are final and not subject to judicial review. Id.

Plaintiff has filed an Opposition to Defendants' motion. See Pl.'s Opp'n, Docket No. [11]. He concedes that the "Agency's action to make Attorney fee decisions and [sic] how much to grant for attorney's fees are... non-reviewable." Id. at 3. Plaintiff argues, however, that this Court has jurisdiction under the APA to review his claim that the year-delay by the SSA in issuing a final decision regarding his request for attorney's fees was arbitrary and capricious. Id. at 1-3. Plaintiff urges that this claim is not moot or alternatively, if the Court finds the issue is moot, that it qualifies under the "capable of repetition yet evading review" exception to the mootness doctrine. Id. at 3-4. Plaintiff therefore seeks an order requiring "the Agency to explain why it took over a year to make its decision (which was made after this Action was filed) and compensate Plaintiff appropriately." Id. at 4. Defendants have since filed a Reply. See Defs.' Reply, Docket No. [13]. Accordingly, briefing on Defendants' Motion to Dismiss is complete, and the motion is now ripe for the Court's review and resolution.

II. LEGAL STANDARD

Under Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Georgiades v. Martin-Trigona, 729 F.2d 831, 833, n. 4 (D.C. Cir. 1984) ("It is the burden of the party claiming subject matter jurisdiction to demonstrate that it exists."); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"). A court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Koutny v. Martin, 530 F. Supp. 2d 84 (D.D.C. 2007) ("[A] court accepts as true all of the factual allegations contained in the complaint and may also consider 'undisputed facts evidenced in the record.'") (internal citations omitted). However, "'plaintiff's factual allegations in the complaint... will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350).

Where, as here, an action is brought by a pro se plaintiff, although an attorney, the Court must take particular care to construe the plaintiff's filings liberally for such complaints are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21; see also Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). "Courts of this Circuit have interpreted the Supreme Court's instruction in Haines as encompassing all filings submitted by pro se litigants, not just their pleadings." Lindsey v. United States, 448 F. Supp. 2d 37, 44 (D.D.C. 2006) (internal citations omitted). The District of Columbia Circuit has further instructed that lower courts may use supplemental materials to clarify a pro se plaintiff's claims without converting a motion to dismiss into one for summary judgment. See Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (explaining that lower courts may "consider supplemental material filed by a pro se litigant in order to clarify the precise claims being urged") (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1054 (D.C. Cir. 1998)).

III. DISCUSSION

Defendants move for dismissal of the Complaint, arguing that the Court lacks subject matter jurisdiction over Plaintiff's claims. The Court agrees. Plaintiff alleges in his Complaint that this Court has jurisdiction over his claims pursuant to the APA and 28 U.S.C. § 2501. Compl. ¶¶ 2-3. The latter reference to section 2501, however, is clearly in error, as the cited code provision governs the time for filing certain claims before the United States Court of Federal Claims and is inapplicable to the case at hand. See 28 U.S.C. § 2501. The Court is therefore left only with the APA as a possible source of jurisdiction over Plaintiff's claims. It is well settled, however, that the APA itself does not confer subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 107 (1977) (The "APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action."). Accordingly, "[b]ecause the APA does not provide an independent grant of subject matter jurisdiction, the Court has jurisdiction under the APA only insofar as it has jurisdiction under § 1331." Am. Chiropractic Ass'n v. Shalala, 108 F. Supp. 2d 1, 8 (D.D.C. 2000). Unfortunately for Plaintiff, the Supreme Court has made clear that "federal-question jurisdiction under 28 U.S.C. § 1331 is precluded by [the Social Security Act]." Califano, 430 U.S. at 109 (citing Weinberger v. Salfi, 422 U.S. 749, 761 (1975)); see also 42 U.S.C. ยง 405(h) ("No action against the United States, the Commissioner of Social Security, or any officer or ...


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