Opinion
6:20-cv-00148
07-22-2021
Robert David Bracken, Plaintif, v. Commissioner, SSA, Defendant.
ORDER
J. Campbell Barker United States District Judge.
On March 25, 2020, plaintif Robert David Bracken fled the above-styled civil action. Doc. 1. The case was referred to United States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636(b). Doc. 2.
Defendant fled a motion to dismiss. Doc. 27. On July 12, 2021, the magistrate judge issued a report recommending that the motion to dismiss, converted to a motion for summary judgment, be granted and that the complaint be dismissed without prejudice for failure to exhaust administrative remedies. Doc. 31. Instead of objections, plaintif fled a motion-styled as an order to show cause-which requested that the court order the defendant to produce a certifed administrative record (“CAR”) in this matter. Doc. 33. Plaintif also requested that the court vacate the report until he is able to review the CAR. Id. In response, defendant argued that in cases where there is no fnal agency decision, such as in this case, the agency does not fle an answer or create a CAR. Doc. 34. Defendant stated that a CAR is only created when there is a fnal decision. Doc. 34.
The court reviews the objected-to portions of a magistrate judge's report and recommendation de novo. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). The magistrate judge recommended granting dismissal because plaintif did not exhaust his administrative remedies prior to fling this suit. Doc. 31. Plaintif's motion fails for the same reason. While 42 U.S.C. § 405(g) states that the Commissioner of Social Security “shall fle a certifed copy of the transcript of the record” as part of the Commissioner's answer to a plaintif's complaint, that subsection makes this requirement contingent on there having been a fnal agency decision. See 42 U.S.C. § 405(g) (“Any individual, after any fnal decision of the Commissioner . . . .”). In this case, evidence shows that plaintif has not received a fnal agency decision. See Doc. 27-1. Accordingly, defendant was not required to produce the CAR.
Plaintif notes that the court previously ordered defendant to fle the CAR on multiple occasions. Docs. 9, 10, 26. However, these orders were predicated on the idea that plaintif had received a fnal agency decision. Because evidence later showed otherwise, these orders to fle the CAR are moot. Therefore, for the reasons stated above, the court denies plaintif's motion.
Having reviewed the magistrate judge's report de novo, and being satisfed that it contains no error, the court accepts its fndings and recommendation. The court grants the motion to dismiss (Doc. 27) and dismisses this action without prejudice.
So ordered.