Free Order on Motion to Dismiss - District Court of California - California

Case 3:07-cv-04905-SI

Document 22

Filed 04/28/2008

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 ROBERT MYERS, 7 Plaintiff, 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On September 21, 2007, plaintiff filed this pro se action seeking review of the Social Security Administration's determination that the agency made an overpayment in benefits. Plaintiff has been receiving benefits on his mother's record since January 1992, and as a disabled adult child since March 2004. See Ray Decl. ¶ 3(a); Ex. 1. By letter dated February 10, 2007, the Social Security Administration notified plaintiff that he had been sent two checks for July 2006, resulting in an overpayment of $503.00. Id. ¶ 3(b); Ex. 2. The agency informed plaintiff that his monthly benefits would be reduced for a period of time until the overpayment was recouped. Id. ¶¶ 3(c)-(d); Ex. 3-4. Plaintiff filed a protest on September 20, 2007, and the agency reinstated plaintiff's monthly benefits to the pre-overpayment level until the agency could prepare a formal response. Id. ¶ 3(f); Ex. 6. Defendant has filed a motion to dismiss this case for lack of jurisdiction because plaintiff has not yet exhausted his administrative remedies under the Social Security Act. In support of the motion, defendant has submitted the declaration of Rose Ray, which states that a final decision has not yet been issued in plaintiff's administrative appeal. Id. ¶ 3(g). Plaintiff has not filed an opposition to defendant's motion. Under 42 U.S.C. § 405(g), the Court only has jurisdiction to review "final" decisions of the v. MICHAEL ASTRUE, Commissioner, Social Security Administration, Defendant. / ORDER GRANTING DEFENDANT'S MOTION TO DISMISS No. C 07-4905 SI

Case 3:07-cv-04905-SI

Document 22

Filed 04/28/2008

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Social Security Administration. Here, because plaintiff is currently appealing defendant's determination that plaintiff received an overpayment, there is not a final decision for this Court to review. See 42 U.S.C. § 405(g) (providing for judicial review of "final decision" of Commissioner of Social Security); Califano v. Sanders, 430 U.S. 99, 108 (1977) (explaining that judicial review of social security benefits claims is limited to the Secretary's final decision made after a hearing). Accordingly, the Court GRANTS defendant's motion and DISMISSES THIS ACTION WITHOUT PREJUDICE. (Docket No. 16.). If plaintiff receives a final decision on his appeal that is unfavorable, plaintiff may file a new action seeking review of that final decision.

IT IS SO ORDERED.

Dated: April 28, 2008 SUSAN ILLSTON United States District Judge

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