The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is now before the Court upon the government's
motion to dismiss. For the reasons set forth below, the motion
will be granted.
Plaintiff, an attorney, brought this action against the
Secretary of the Department of Health, Education and Welfare in
the Circuit Court in Wheaton, Illinois, for a declaratory
judgment as to his birth date. On the Secretary's motion, the
case was removed from the state court pursuant to 28 U.S.C. § 1441
(a) and 1446.
The complaint alleges that when he was six years old,
plaintiff's foster mother forced him to agree that he was only
five years old, because he was "too little to be six." Plaintiff
contends that this resulted in his age being given as twelve,
rather than thirteen, in the census of 1910.
The government moves to dismiss for lack of subject matter
jurisdiction. The burden of proof on such a motion is on the
plaintiff. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673,
86 L.Ed. 951 (1942); Morgan v. Melchar, 442 F.2d 1082, 1085 (3d
Cir. 1971). Based upon the review provision of the Social
Security Act, and the administrative rules promulgated
Court concludes that plaintiff, by failing to respond to this
motion which was filed over two months ago, has failed to sustain
his burden. In light of the facts set forth below, it is highly
doubtful that plaintiff could have sustained his burden if he had
James E. Forbus, Deputy Director of the Bureau of Retirement
and Survivors Insurance of the Social Security Administration,
outlines the events leading to the filing of this action in his
affidavit. Plaintiff's application for old-age benefits in 1961
stated that he was born on June 19, 1897. Since this date was in
agreement with evidence of record (presumably the 1910 census),
he was awarded benefits based upon that date and was notified of
the establishment of that date as his birth date. Although this
notice advised him of his right to apply for reconsideration of
the determination within six months, plaintiff never requested
In 1971, plaintiff wrote the Social Security Administration
requesting that his birth date be changed to 1896. When this was
refused, this action was filed.
Because the Social Security Act provides for review of agency
action only in the federal district courts, 42 U.S.C. § 405(g),
(h), there has been no waiver of sovereign immunity from suit in
the state courts. Thus the circuit court failed to acquire
jurisdiction, and this Court did not obtain jurisdiction by the
Moreover, there is no independent basis of jurisdiction in this
Court. If this action is viewed as one for review of the 1961
determination, plaintiff's failure to request agency
reconsideration of that decision resulted in no hearing being
held, and consequently there has been no "final decision"
reviewable under § 405(g). Rushing v. Finch, 310 F. Supp. 848, 851
(W.D.La. 1970); 20 C.F.R. § 404.917, 404.945. If the Secretary's
refusal to change the birth date in 1971 is considered as a
denial of a request for reopening of the 1961 determination,
plaintiff's failure to request reconsideration of the denial
prevents that decision from being "final" and reviewable.
The Secretary treated plaintiff's 1971 letter as a request for
recalculation, a discretionary remedy employed where reopening is
no longer available. The Secretary's denial of the request was
based upon plaintiff's failure to give any substantial evidence
in support of his claim. This Court lacks jurisdiction to compel
the Secretary to perform such a discretionary act (Bomer v.
Ribicoff, 304 F.2d 427, 429 (6th Cir. 1962)), and even if such
action were reviewable, plaintiff's failure to seek
reconsideration would deprive this Court of jurisdiction under §
Accordingly, this Court holds that it is without jurisdiction.
The motion to dismiss is granted.
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