United States District Court, N.D. New York
CHRISTINE A. SCOFIELD, ESQ., OFFICE OF CHRISTINE A. SCOFIELD, Attorney for Plaintiff, Syracuse, New York.
SIXTINA FERNANDEZ, ESQ., SOCIAL SECURITY ADMINISTRATION, Attorney for Defendant, Office of Regional General Counsel, New York, New York.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
On June 3, 2012, counsel for Michael Lynn Groves initiated this action, pursuant to 42 U.S.C. § 405(g), seeking review of a decision by the Commissioner of Social Security denying his application for disability benefits. Dkt. No. 1, Compl. On November 13, 2012, Defendant filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that because Groves failed to file this federal action within the proscribed sixty-day filing period, the Court lacks subject matter jurisdiction to entertain the action. Dkt. No. 11. Groves opposes the Motion. Dkt. No. 13. For the reasons stated below, it is recommended that Defendant's Motion be granted and this case be dismissed.
Groves filed two applications seeking disability insurance payments due to a disability beginning on September 29, 2008. Dkt. No. 10-2, Donald Ortiz Decl., dated Aug. 8, 2012, Ex. 1, Admin. Law Judge Dec., dated Aug. 25, 2010. On May 26, 2010, Groves appeared by video for a hearing before an administrative law judge ("ALJ"); at that time Plaintiff was represented by Christine Scofield, Esq. Id. In a written decision, dated September 24, 2010, the ALJ found that Groves retained the residual functional capacity ("RFC") to perform a full range of sedentary work and that jobs exist in the economy that he would be able to perform. Id. Upon Groves's timely request for review, the Appeals Council, February 17, 2012, found no basis to review the ALJ's decision and denied the request for review, thus making the ALJ's findings the final decision of the Commissioner. Ortiz Decl., Ex. 2.
Within the Notice of Appeals Council Action is information regarding the claimant's entitlement to file a civil action in federal court, which must be commenced sixty days after receipt of that Notice. Id. Additionally, there was direction that an extension of the sixty-day time period could be requested of the Appeals Council; such request must be in writing and there must be "good reason" provided. Id. In accordance with that Notice, to be considered timely, Plaintiff must have commenced this action on or before April 23, 2012; the present action was filed on June 3, 2012.
A. Standard of Review
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing FED. R. CIV. P. 12(b)(1)). Federal courts are "duty bound... to address the issue of subject matter jurisdiction at the outset." Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 929 (2d Cir. 1998). "In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that [jurisdiction] exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002) (citations omitted); see also Societe Nationale d'Exploitation Industrielle des Tabacs et Allumettes v. Salomon Bros. Int'l Ltd., 928 F.Supp. 398, 402 (S.D.N.Y. 1996) ("[T]he Court need not accept as true contested jurisdictional allegations and may resolve disputed jurisdictional facts by reference to affidavits and other materials outside the pleadings.") (citing cases).
B. Timely Filing
Absent Congressional consent to be sued, the United States is immune from suit and federal courts lack subject matter jurisdiction to entertain the suit. United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoted in Makarova v. United States, 201 F.3d at 113). Where the United States waives sovereign immunity and consents to be sued, the terms of such consent define the court's jurisdiction to entertain the suit. Id. In the case at bar, the express Congressional consent to suit can be found at 42 U.S.C. § 405(g), which authorizes judicial review of cases arising under Title II of the Social Security Act. Section 405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision ...