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Schwab v. Colvin

United States District Court, D. Minnesota

January 30, 2017

Gregory Schwab and Susan Moen, Plaintiffs,
Carolyn Colvin, Acting Commissioner of Social Security, Defendant.

          Joseph A. Wentzell, Esq. Wentzell Law Office, PLLC, counsel for Plaintiffs.

          Ana H. Voss, Assistant United States Attorney, United States Attorney's Office, counsel for Defendant.


          DONOVAN W. FRANK United States District Judge


         Plaintiffs Gregory Schwab and Susan Moen, brother and sister, filed this lawsuit after the U.S. Social Security Administration (“SSA”) declined to process Schwab's Form CMS 1763, which permits individuals to terminate their Medicare insurance. Defendant Carolyn Colvin, Acting Commissioner of the SSA, moves to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction. Because Plaintiffs failed to adequately plead jurisdiction in their Complaint, the Court grants Defendant's motion and dismisses Plaintiffs' Complaint without prejudice.


         Schwab and Moen will be eligible for Medicare benefits when they reach 65. (Doc. No. 1 (“Compl.”) ¶ 1.) At the time they filed the Complaint, Schwab was 62 years old, and Moen was 61 years old. (Id. ¶ 2.) When they reach 65, both Schwab and Moen apparently seek to maintain private insurance as their primary health insurance, while designating Medicare Part A as their secondary health insurance. (Id. ¶¶ 2, 4, 9, Ex. A.) On April 14, 2015, Schwab attended a voluntary termination interview at the SSA office in St. Paul, Minnesota, at which Schwab attempted to explain his request to terminate his enrollment in Medicare Parts B, C, and D; to keep his private insurance as his primary health insurance; and to designate Medicare Part A as his secondary health insurance. (Id. ¶ 4, 9, Ex. A.) Instead of granting Schwab's request, the SSA representative ended the interview. (Id. ¶ 4.)

         On May 4, 2015, and May 6, 2015, Schwab's attorney wrote the SSA explaining that Schwab “sought to terminate his hospital/supplemental insurance plan through social security” in a meeting with an SSA official. (Id. ¶ 9, Ex. A.) On May 13, 2015, the U.S. Department of Health and Human Services (“HHS”)-which administers Medicare- responded, “we are unable to assist you or give you the information you requested because you did not provide us with sufficient information to process your inquiry.” (Id.) Among other things, the letter requested “a complete explanation of your concern or request.” (Id.) On May 21, 2015, and again on May 27, 2015, Schwab's attorney wrote back, stating that Schwab seeks “[t]o establish that his private insurance is primary as shown in form CMS.1763.” (Id.) That correspondence also requested that the SSA “date stamp form CMS.1763 and return a copy to myself and Mr. Schwab.” (Id.) Schwab did not receive a date-stamped copy of Form CMS 1763. (Id. ¶ 8.)

         On January 27, 2016, Schwab and Moen, both represented by counsel, filed their Complaint. (Id.) Moen did not contact the SSA or submit any forms; rather, her claim is based on her brother's experience. (Id. ¶ 5.) The Complaint does not identify a specific cause of action, and it does not explicitly lay out grounds for the Court's jurisdiction. (See id.) As the Court understands it, the Complaint requests that the Court: (1) declare that Plaintiffs' private insurance is their primary health insurance; (2) order the SSA to sign and date stamp Form CMS 1763 for both Schwab and Moen and to provide Form CMS L457 to both Schwab and Moen; (3) enjoin the SSA from withholding or offsetting Schwab's or Moen's Social Security benefits; (4) declare that Schwab and Moen may receive Social Security benefits once they meet the applicable eligibility requirements; and (5) award Schwab and Moen attorney fees incurred in the course of this lawsuit. (Id. at 3 (Prayer for Relief).)

         On April 15, 2016, Defendant moved to dismiss the lawsuit for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Doc. No. 13.)


         I. Legal Standard

         A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). To survive a motion under Rule 12(b)(1), the party asserting jurisdiction has the burden of proving jurisdiction. V S Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). “Subject-matter jurisdiction is a threshold requirement which must be assured in every federal case.” Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990).

         A Rule 12(b)(1) motion may challenge a plaintiff's complaint either on its face or on factual truthfulness of its averments. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). When a defendant brings a facial challenge-that is, even if the allegations were true, they lack an essential element for jurisdiction-a court reviews the pleadings alone, and the court assumes the allegations are true. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); accord Osborn, 918 F.2d at 729 n.6. In a factual challenge to jurisdiction, the ...

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