United States District Court, E.D. Arkansas, Central Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge Brian S. Miller. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objections; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
September 3, 2019, Plaintiff Marion Baugh
(“Baugh”) filed a pro se Complaint, on
behalf of R.W., a minor child, seeking review of the denial
of R.W.'s disability benefits. Doc. 2. While Baugh
suggests in her Complaint that, on “August 29, 2019,
” she received a final decision from the Commissioner
of the Social Security Administration (“SSA”),
she does not attach a copy of the “Commissioner's
final decision” as the “Pro Se 13 Complaint
Form” instructed her to do. Id. at 3. Federal
courts only have jurisdiction to review final
decisions from the Commissioner of the SSA. On its face,
Baugh's failure to attach a copy of the
Commissioner's final decision to her Complaint, as she
was required to do, raises questions about whether she has
met her burden of demonstrating that the Court has
jurisdiction over this action.
review of the substantive allegations in Baugh's pro
se Complaint and pro se Amended Complaint
confirms that she is not appealing from a final
decision of the Commissioner. According to her own
allegations, the “case worker with the state, ”
acting on behalf of the SSA, ordered a “medically
unnecessary” educational examination for R.W. to be
completed before the “Medical Review Board” made
an initial determination on R.W.'s disability
claim. Id. at Attachment 1; Doc. 12
at 5. These admissions by Baugh make it clear that she
did not even complete the initial determination
level of review before initiating this action.
November 21, 2019, Respondent filed a Motion to Dismiss,
pursuant to Federal Rule of Civil Procedure 12(b)(6), along
with a supporting Brief. Docs. 8 and 9. Respondent
argues that the Complaint is premature and this Court lacks
subject matter jurisdiction because “no final agency
decision has been issued.” Doc. 9.
November 27, 2019, Baugh filed an Amended Complaint. In that
pleading, she seeks to avoid the dismissal of her claim
against the SSA by asserting two conclusory and entirely
derivative causes of action: (1) the SSA's conduct, in
dealing with R.W.'s disability claim, constituted
“fraud” in violation of the False Claims Act
(“FCA”), 31 U.S.C. § 3729; and (2) the SSA
violated R.W.'s constitutional rights under Bivens v.
Six Unknown Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Doc. 12.
Based on these two new claims, Baugh argues that
Respondent's Motion to Dismiss should be denied and the
Court should maintain jurisdiction over the action,
notwithstanding her failure to administratively exhaust the
preliminary determination that R.W. might not be entitled to
disability benefits. Doc. 11 at 2-3.
on December 20, 2019, Baugh filed a one-paragraph Motion for
Summary Judgment, which makes the following nonsensical
request for relief under Rule 56(c):
The plaintiff made recent accommodations in this case to
appease the questions at present, of “lack
of subject-matter jurisdiction”
consequences, in order to secure a burden of proof in this
case against the Defendant. These accommodations have been
cited in the Amendment of the Complaint Civil Procedure
Rule15, filed November 27, 2019. The Plaintiff would like to
request a Motion for Summary Judgment under Civil
Procedure Rule 56(c).
Doc. 13 (emphasis in original).
reasons explained below, the Court recommends that the
Complaint and Amended Complaint that Baugh filed on behalf of
R.W. be dismissed, without prejudice.
United States and its agencies, including the SSA, are immune
from suit, absent a statute expressly permitting a court to
exercise jurisdiction. Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 475 (1994). The Social Security Act
authorizes federal courts to review final decisions
of the Commissioner of Social Security. 42 U.S.C. §
405(g); 42 U.S.C. § 405(h). SSA regulations define a
“final decision” of the Commissioner as an
“initial determination” that has been pursued
through all steps of the administrative review process.
See 20 C.F.R. § 416.1400(a); Schoolcraft v.
Sullivan, 971 F.2d 81, 84-85 (8th Cir. 1992); see
Weinberger v. Salfi, 422 U.S. 749, 766 (1975)
(“[A] ‘final decision' is a statutorily
specified jurisdictional prerequisite.”); see also
Rowden v. Warden, 89 F.3d 536, 537 (8th Cir. 1996) (A
plaintiff “may seek judicial review of the
Secretary's decision in this case only after a final
decision by the Secretary.”).
does not contest the fact that she failed to exhaust
R.W.'s available administrative remedies for challenging
the preliminary determination that R.W. may not be entitled
to disability benefits. Rather, to save R.W.'s disability
claim from dismissal, she asserts far-fetched and factually
unsupported claims against Respondent under Bivens
and the FCA. Doc. 9 at 3. Both of those claims are
supported only by her conclusory and entirely speculative
allegations that: (1) the SSA “fraudulently”
failed to consider R.W.'s existing medical records and
ordered a “medically unnecessary” educational
examination in violation of the FCA; and (2) the preliminary
decision made by the SSA violated R.W.'s constitutional
rights under Bivens. By failing to allege any
plausible facts to support these nebulous allegations,
Baugh has failed to plead viable claims under Bivens
and the FCA. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (“labels and conclusions, ” a
“formulaic recitation of the elements of a cause of
action, ” and “naked assertions devoid of further
factual enhancement” are insufficient to plead a viable
claim for relief); Renneke v. Astrue, 276 Fed.Appx.
548 (citing Heckler v. Ringer, 466 U.S. 602, 614
(1984) (where the plaintiffs raised procedural claims related
to the Secretary's decision to deny payments for surgery,
those claims were inextricably intertwined with
plaintiffs' claims for benefits; all aspects of claims
should be channeled into the administrative process because
the relief sought was invalidation of the Secretary's
policy and declaration that a particular surgery was
because the Court lacks subject matter jurisdiction over
R.W.'s disability benefits claim, it should be dismissed,
without prejudice, under Rule 12(b)(1). R.W.'s
Bivens and FCA claims should be dismissed, without