United States District Court, E.D. Kentucky, Central Division
JAMES F. DINWIDDIE, JR., Trustee of the Testamentary Trust FBO Debra Ann Jordan under the Last Will and Testament of James F. Dinwiddie, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant, DEBRA ANN JORDAN, Defendant/Cross-Claimant
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
matter is pending for consideration of Defendant Nancy
Berryhill, Acting Commissioner of Social Security's
(“the Commissioner”), motion to dismiss the
plaintiff's Complaint and the Cross-claim of Co-Defendant
Debra Jordan pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure. [Record No. 12] The Court will grant the
Commissioner's motion for the reasons that follow.
claims against the Commissioner concern the creation of a
trust and distribution of the trust principal to Jordan.
James F. Dinwiddie signed his last Will and Testament in
January 2012, which established a testamentary trust for the
benefit of Jordan. [Record No. 1, ¶ 8] James Dinwiddie,
Jr., as Trustee of the Trust, filed this action on October
13, 2017, naming the Commissioner and Jordan as defendants.
Id. He seeks a declaratory judgment that the Trust
Assets shall not be considered a resource of Jordan under the
Social Security Act (“the Act”) for purposes of
social security disability income. Id. at p. 6.
Jordan filed an Answer and Cross-claim against the
Commissioner on November 27, 2017. In part, she asks the
Court to issue a declaratory judgment regarding the Trust.
[Record No. 11] The Commissioner then moved to dismiss
Dinwiddie's Complaint and Jordan's Cross-claim for
lack of subject matter jurisdiction. [Record No. 12]
defendant's argument that the plaintiff and co-defendant
lack standing to bring this action contests this Court's
subject matter jurisdiction under Rule 12(b)(1) of the
Federal Rule s of Civil Procedure. Lyshe v. Levy,
854 F.3d 855, 857 (6th Cir. 2017) (citations omitted). A
12(b)(1) motion “can either attack the claim of
jurisdiction on its face, in which case all allegations of
the plaintiff must be considered as true, or it can attack
the factual basis for jurisdiction, in which case the trial
court must weigh the evidence and the plaintiff bears the
burden of proving that jurisdiction exists.” DLX,
Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A
facial challenge to the Court's subject matter
jurisdiction, like this one, “merely questions the
sufficiency of the pleading.” Ohio Nat. Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
“In reviewing such a facial attack, a trial court takes
the allegations in the complaint as true, which is a similar
safeguard employed under 12(b)(6) motions to dismiss.”
Id. “[T]he party claiming jurisdiction bears
the burden of demonstrating that the court has jurisdiction
over the subject matter.” Id. at 324.
Commissioner argues that Dinwiddie and Jordan have failed to
establish that they have suffered any actual injury that
satisfies the Article III standing requirements.
Additionally, the Commissioner contends that, even if they
could establish Article III standing, they are not entitled
to the relief sought because 42 U.S.C. §§ 405(g)
and (h) explicitly preclude jurisdiction under 28 U.S.C.
§ 1331. The Commissioner further asserts that, because
she has not issued a final adverse decision after a hearing,
Dinwiddie and Jordan cannot seek judicial review under the
Act. Dinwiddie does not respond to most of the
Commissioner's arguments.And as of this date, Jordan had
not responded. This alone is sufficient reason to grant the
Commissioner's motion as to her Cross-claim. See
Local Rule 7.1(c)(1).
every lawsuit filed in federal court, Article III of the
Constitution limits the jurisdiction to hear only actual
cases and controversies. U.S. Const. art 3. § 2.
“The doctrine of standing is one of several doctrines
that reflect this fundamental limitation.” Summers
v. Earth Island Inst., 555 U.S. 488, 493 (2009). To
satisfy the standing requirement, the plaintiffs must
establish that: (i) they have suffered an injury in fact that
is (a) concrete and particularized and (b) actual or imminent
rather than conjectural or hypothetical; (ii) that there is a
causal connection between the injury and the defendant's
alleged wrongdoing; and (iii) that the injury can likely be
redressed. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992). Here, the dispute is whether an injury in
plaintiff appreas to argue that the Notice of Planned Action
sent by the SSA on July 7, 2017 (which notified Jordan that
the SSA planned to lower her SSI payment beginning August
2017), constituted an injury in fact because of the potential
reduction or termination of her benefits. But the reduction
or termination of benefits never occurred. [Record No. 12-1,
¶ 10; Record No. 11, Cross-claim ¶ 4] Instead, the
SSA reviewed the Trust and determined, based on agency
policy, that the Trust principal is not a countable resource
for SSI purposes. [Record No. 12-1, ¶ 7] Per SSA policy,
no notice was sent to Jordan after this determination because
it would not change her eligibility or payment status.
Id. at ¶ 8. Further, because Dinwiddie is not
authorized to communicate with the SSA on Jordan's
behalf, the SSA did not discuss its findings with him.
[Record No. 11, p. 5, Cross-claim ¶ 5; Record No. 12-1,
¶ 12] Based on the action of the SSA in making the
determination that Jordan's SSI benefits would not be
reduced because of the Trust, Dinwiddie and Jordan suffered
no concrete and particularized injury that is actual or
imminent. Thus, no case or controversy is presented for
assuming that Dinwiddie or Jordan had standing to bring this
action, they have not met their burden to show this Court has
subject matter jurisdiction over the action under the Act or
any other statute. See Ohio Nat. Life Ins. Co. v. United
States, 922 F.2d at 324. Dinwiddie asserts in his
Complaint that the Court has subject matter jurisdiction
under 28 U.S.C §§ 1331, and 1338, because this
action is related to and arises under the Social Security
Act. [Record No. 1, ¶ 5]
28 U.S.C. § 1338 applies to actions relating to patents,
plant variety protection, copyrights, and trademarks. This
statute is not a basis for asserting jurisdiction in this
matter. Second, section 1331 is the general
federal-question-jurisdiction statute. Because Dinwiddie and
Jordan named the secretary of the SSA in her official
capacity, they must do more than invoke this general statute.
They also must “identify a waiver of sovereign immunity
in order to proceed.” Reetz v. United States,
224 F.3d 794, 795 (6th Cir.2000); see also United States
v. Sherwood, 312 U.S. 584, 586 (1941) (“The United
States, as sovereign, is immune from suit save as it consents
to be sued.”); Whittle v. United States, 7
F.3d 1259, 1262 (6th Cir.1993) (affirming dismissal of suit
against federal agency because federal sovereign immunity
“extends to agencies of the United States” and
“[t]he federal question jurisdictional statute is not a
general waiver of sovereign immunity”). Dinwiddie does
not respond to this argument and provides no basis for
finding a waiver of federal sovereign immunity.
even assuming that the Act provides the Court with subject
matter jurisdiction, the Supreme Court has held that 42
U.S.C. § 405(g), to the exclusion of the general
federal-question jurisdiction statute, is the sole avenue for
judicial review of claims arising under the Act. See
Hecker v. Ringer, 466 U.S. 602, 614-15 (1984). Thus, to
bring an action for a claim arising under the Act, as
Dinwiddie alleges, there first must be a final decision of
the Commissioner. See 42 U.S.C 405(g). Here, no
administrative review process has even begun. The SSA
retracted the Notice of Planned Action dated July 7, 2017.
See Record No. 12-2, p. 3. Therefore, exhaustion of
prescribed administrative remedies has not occurred. As such,
this Court does not have jurisdiction under 42 U.S.C. §
405(g) to entertain Dinwiddie and Jordan's claim.
although Dinwiddie contends the Court has jurisdiction under
28 U.S.C § 2201, his argument is unsupported.
“Section 2201 is part of the Declaratory Judgment Act.
Before ‘invoking the Act, ' however, a federal
court must ‘have jurisdiction already' under some
federal statute. Toledo v. Jackson, 485 F.3d 836,
839 (6th Cir. 2007) (quoting Heydon v. MediaOne of S.E.
Mich, Inc.,327 F.3d 466, 470 (6th Cir. 2003)). This
section is not an independent basis for federal subject