Ronald Micklas v. J. Doe, No. 1 ( 2012 )

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                                                                 [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT           FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 5, 2012
No. 11-12445
Non-Argument Calendar            JOHN LEY
CLERK
________________________
D.C. Docket No. 0:10-cv-61497-RLD
RONALD MICKLAS,
llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,
versus
J. DOE, NO. 1,
(Reviewer No.1),
J. DOE NO. 2,
(Reviewer No. 2),
COMMISSIONER OF SOCIAL SECURITY,
in his Official Capacity,
llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 5, 2012)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ronald Micklas, proceeding pro se,1 appeals the district court’s dismissal of
his complaint against two unnamed Social Security reviewers and the
Commissioner of Social Security. Micklas argues that the district court erred in
dismissing his suit for lack of subject matter jurisdiction. Upon review of the
briefs and record, we affirm.2
Micklas asserts his claim under 42 U.S.C. § 1983, which provides a remedy
for deprivation of federal statutory and constitutional rights by a person acting
under color of state law. Almand v. DeKalb Cnty.,

103 F.3d 1510

, 1512–13 (11th
Cir. 1997). Micklas’s allegations relay his displeasure with having his claims for
Social Security benefits denied. His claims do not, however, involve a violation of
his rights by a person acting “under color of state law” as required by § 1983.
Instead, his complaints arise under federal law—the Social Security Act pursuant
to which his claims for benefits were denied. We thus construe Micklas’s
complaint otherwise to “discern whether jurisdiction . . . can be founded on a
1
Because he proceeds pro se, we construe Micklas’s pleadings liberally. Tannenbaum v.
United States,

148 F.3d 1262

, 1263 (11th Cir. 1998) (per curiam).
2
We review de novo the district court’s dismissal for lack of subject matter jurisdiction.
Cash v. Barnhart,

327 F.3d 1252

, 1255 n.4 (11th Cir. 2003) (per curiam).
2
legally justifiable base.” Sanders v. United States,

113 F.3d 184

, 187 (11th Cir.
1997) (per curiam).
Construing Micklas’s complaint as a Bivens action does not result in federal
jurisdiction. Under Bivens, federal officials acting under color of federal law may
be sued in their individual capacities for violating an individual’s constitutional
rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388

, 397,

91 S. Ct. 1999

, 2005 (1971). A Bivens action is unavailable,
though, where Congress has provided an alternate remedy. Hardison v. Cohen,

375 F.3d 1262

, 1264 (11th Cir. 2004). The Supreme Court, because of the
remedies under the complex Social Security statutes and regulations, has expressly
foreclosed extension of a Bivens action to persons who were improperly denied
Social Security benefits as a result of alleged due process violations. Schweiker v.
Chilicky,

487 U.S. 412

, 425–29,

108 S. Ct. 2460

, 2468–71 (1988). Because
Micklas alleges due process violations related to denial of his benefits, a Bivens
actions is not available and cannot provide a basis of jurisdiction in this court.
Even construing Micklas’s claim as one for review of the denial of benefits,
federal jurisdiction is lacking. The Social Security Act limits a district court’s
jurisdiction over claims related to Social Security benefits determinations to the
review of a “final decision” of the Commissioner. 42 U.S.C. § 405(g). To obtain
3
review in federal court under Section 405(g), a Social Security claimant must have
(1) presented a claim for benefits to the Commissioner and (2) exhausted
administrative remedies. See Crayton v. Callahan,

120 F.3d 1217

, 1220 (11th Cir.
1997). “This means claimant must have completed each of the steps of the
administrative review process unless exhaustion has been waived.”

Id. Waiver is

not at issue in this appeal.
Here, the Commissioner submitted exhibits to the district court that
demonstrated Micklas had not exhausted his administrative remedies.3
Specifically, these exhibits established that Micklas had not proceeded beyond the
second of the four-step administrative review process of the Social Security
Administration. Upon review, we agree with the district court that Micklas has
not exhausted his administrative remedies. The district court thus correctly
determined that it was without jurisdiction over Micklas’s claims.
AFFIRMED.
3
Micklas also argues on appeal that it was improper for the district court to consider
materials outside of the pleadings in determining the motion to dismiss for lack of subject matter
jurisdiction. It is well established, however, that when a party “challenge[s] the existence of
subject matter jurisdiction in fact, . . . matters outside the pleadings, such as testimony and
affidavits, are considered.” Lawrence v. Dunbar,

919 F.2d 1525