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David L. Dupree v. Michael J. Astrue

September 21, 2011

DAVID L. DUPREE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Wednesday, 21 September, 2011 05:29:50 PM

Clerk, U.S. District Court, ILCD

OPINION

The Court now considers Defendant Michael J. Astrue, Commissioner of Social Security's Motion to Dismiss. See d/e 26 (the Motion). For the reasons that follow, the Motion is GRANTED.

FACTS

The Social Security Administration (SSA) determined that Dupree was disabled and eligible to receive Supplemental Security Income (SSI) as of January 1, 2009. The SSA paid Dupree monthly SSI benefit checks up to and including August 2009. Dupree's September 2009 benefit check was returned to the United States Treasury. As a result, on September 28, 2009, SSA sent Dupree a Notice of Planned Action (Form SSA-L8155), to Dupree's last known address. The Notice of Planned Action informed Dupree that: (a) SSA would suspend his SSI benefits as of November 1, 2009; (b) he had 60 days to seek reconsideration; (c) he could request a formal conference at the reconsideration level; and (d) he must appeal within 10 days to continue receiving his SSI benefits until SSA issued its decision on reconsideration.

Dupree did not seek reconsideration of the September 28, 2009 Notice of Planned Action. SSA suspended Dupree's SSI benefits as of November 1, 2009.

In December 2009, SSA received information that Dupree was incarcerated in the Sangamon County Jail. On December 10, 2009, SSA sent another Notice of Planned Action (Form SSAL8155) to Dupree. Like the prior Notice of Planned Action, the December 10, 2009 Notice of Planned Action informed Dupree that:

(a) SSA would suspend his SSI benefits for September and October 2009;1 (b) he had 60 days to seek reconsideration by formal conference, informal conference or case review; and (c) he must appeal within 10 days to continue receiving his SSI. On December 17, 2009, the SSA sent Dupree a notice of "Important Information" which advised him that the SSA would be suspending his SSI benefits for September and October of 2009.

By letter dated January 20, 2010, Dupree sought reconsideration of the SSA's December 17, 2009 notice of "Important Information". The letter also served as a request for reconsideration of the December 10, 2009 Notice of Planned Action. In a separate letter dated January 22, 2010, Dupree requested reconsideration of the SSA's January 11, 2010 Notice of Overpayment.

On October 26, 2010, Dupree filed a Complaint seeking to get his SSI benefits reinstated. See d/e 1. He filed an Amended Complaint on April 26, 2011 seeking reinstatement of his benefits and a mandamus order commanding the Commissioner to immediately pay those benefits. See d/e 20. The Commissioner has filed the instant Motion (d/e 26) seeking to dismiss Dupree's Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) because the pendency of Dupree's requested reconsideration shows that the SSA-through the Commissioner-has not yet reached a final decision about Dupree's claims.

Dupree opposes the Commissioner's efforts. When he filed his opposition, Dupree advised the Court that he is incarcerated at Vandalia Correctional Center in Vandalia, Illinois. See d/e 44 (Notice of Change of Address). By performing an inmate search on the Illinois Department of Corrections website, the Court found that Dupree was taken into custody for burglary on July 25, 2009, convicted, and given 7 years in prison. ...


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