United States District Court, D. Minnesota
A. Wentzell, Esq. Wentzell Law Office, PLLC, counsel for
Voss, Assistant United States Attorney, United States
Attorney's Office, counsel for Defendant.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge
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.
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.)
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.)
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).)
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.)
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).
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 ...