Kimmons v. Kijakazi

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 BRANLETT EUGENE KIMMONS, Case No. 22-cv-04447-JSC 8 Plaintiff, ORDER GRANTING MOTION TO DISMISS v. [9] Re: Dkt. No. 17 10 KILOLO KIJAKAZI, Defendant. [12] Plaintiff, representing himself, filed this action seeking judicial review of a decision by the [13] Commissioner of Social Security. (Dkt. No. 1.1) The Commissioner thereafter filed the now [14] pending motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). [15] (Dkt. No. 10.) Plaintiff did not file a response to the motion to dismiss, and instead, filed a notice [16] of appeal to the Ninth Circuit Court of Appeals indicating he was seeking review of the [17] “scheduling order social security review action.” (Dkt. No. 11 at 5.) The Ninth Circuit Court of [18] Appeals dismissed the appeal for lack of jurisdiction, noting this Court has “not issued any orders [19] that are final or appealable.” (Dkt. No. 13.) On December 19, 2022, the Court ordered Plaintiff to [20] submit a response to the Commissioner’s motion. (Dkt. N. 14.) Plaintiff did not do so and the [21] Court ordered Plaintiff to show cause in writing by February 3, 2023, as to why this action should [22] not be dismissed for failure to prosecute. (Dkt. No. 17.) On February 9, 2023, Plaintiff filed a [23] response to the Court’s order. (Dkt. No. 21.) Plaintiff’s response indicates he seeks review of a [24] January 5, 2023 “fully favorable” decision granting his application for supplemental security [25] income. (Dkt. No. 21; Dkt. No. 21-1.) Having reviewed Petitioner’s response, the Court [27] 1 GRANTS the government’s motion to dismiss this action for lack of subject matter jurisdiction. 2 DISCUSSION 3 “Federal courts are courts of limited jurisdiction. They possess only the power authorized 4 by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 , 377 5 (1994). “Subject matter jurisdiction can never be forfeited or waived and federal courts have a 6 continuing independent obligation to determine whether subject-matter jurisdiction exists.” Leeson 7 v. Transamerica Disability Income Plan, 671 F.3d 969 , 975 n.12 (9th Cir. 2012) (internal 8 quotation marks and citations omitted); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 9 2004) (noting district courts are “obligated to consider sua sponte whether [they] have subject 10 matter jurisdiction”). 11 The Social Security Act provides an individual may seek review of a final decision of the 12 Commissioner of Social Security. 42 U.S.C. § 405 (g) (“Any individual, after any final decision of 13 the Commissioner of Social Security made after a hearing to which he was a party, irrespective of 14 the amount in controversy, may obtain a review of such decision by a civil action commenced 15 within sixty days”). The Act does not permit courts to review actions taken by the Commissioner 16 prior to the issuance of a final decision. 42 U.S.C. § 405 (h) (“No findings of fact or decision of the 17 Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental 18 agency except as herein provided.”); Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (“The 19 Social Security Act grants to district courts jurisdiction to review only ‘final decisions’ of the 20 Commissioner.”). 21 Plaintiff’s response to the Court’s Order to Show Cause indicates he seeks review of a 22 January 5, 2023 decision by Administrative Law Judge Julia Mariani. (Dkt. No. 21 at 1.) This 23 decision, however, was issued over five months after this action was filed. Further, the 24 Administrative Law Judge’s decision is not a final decision subject to judicial review. See Bass v. 25 Soc. Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1988) (“The decision made following the hearing 26 does not become the final decision of the Secretary until the claimant requests review by the 27 appeals council, and the appeals council either grants or denies review.”). Accordingly, the Court 1 Administrative Law Judge’s decision—and now because the Administrative Law Judge’s opinion 2 || is not final until the Appeals Council either grants or denies review. Id. (“A claimant’s failure to 3 exhaust the procedures set forth in the Social Security Act ... deprives the district court of 4 || jurisdiction.”); see also Morongo Band of Mission Indians v. Cal. St. Bd. of Equalization, 858 F.2d 5 1376, 1380 (9th Cir. 1988) (“Subject matter jurisdiction must exist as of the time the action is 6 || commenced.”); Orff v. United States, 358 F.3d 1137, 1149 (9th Cir.2004) (“If jurisdiction is 7 || lacking at the outset, the district court has no power to do anything with the case except dismiss.”). 8 Plaintiff has until March 3, 2023 to file an appeal with the Appeals Council. Once the Appeals 9 Council issues its decision, Plaintiff can seek review in this Court. 10 CONCLUSION 11 For the reasons stated above, the Court dismisses this action for lack of subject matter 12 || jurisdiction. 5 13 Plaintiff is reminded he can contact the Legal Help Center for free assistance; he can make 14 an appointment by calling 415-782-8982 or emailing fedpro@ sfbar.org. 3 15 This Order disposes of Docket No. 10. [16] = 17 IT IS SO ORDERED. || Datea: February 14, 2023 [19] 20 feats nth Wy JAGQUBIINE SCOTT CORLEY United States District Judge