The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
This case arises out of Curtis Keith Cooper's ("Plaintiff") Petition for Declaratory Relief, pursuant to which he seeks a declaration from the Court that he is not liable or responsible to Michael J. Astrue ("Defendant"), Commissioner of the Social Security Administration (the "SSA"), for reimbursement of benefits paid to him between his sentencing date and the date of his "self surrender." (Doc. No. 1 at 2-3, hereinafter the "Complaint.")
On July 19, 2012, Defendant filed a Motion to Dismiss for Lack of Jurisdiction. (Doc. No. 10, hereinafter the "Motion to Dismiss.") Plaintiff filed an untimely response on August 13, 2012.*fn1 (Doc. No. 12, hereinafter the "Opposition.") Subsequently, on August 20, 2012, Respondent filed an untimely Reply in support of its Motion to Dismiss. (Doc. No. 13, hereinafter the "Reply.")
The Court held a hearing on Defendant's Motion to Dismiss on August 30, 2012.*fn2
II. FACTUAL BACKGROUND*fn3
On December 7, 2009, Plaintiff was charged and indicted and a GPS monitoring system was placed on Plaintiff's person.
(Compl. at 1.) During his Pre-Trial Release, Plaintiff continued to live at home with his wife and provide for their living expenses and subsistence in part through the benefits received from the SSA. Id. Plaintiff pled guilty and was sentenced on October 13, 2010, and then reported to the Federal Correctional Institution ("FCI") on January 7, 2011 to begin serving his sentence. Id. at 3. Plaintiff is currently incarcerated at FCI. Id. During Plaintiff's incarceration, the SSA continued to make payments to Plaintiff for approximately six months, until July 2011, at which point all such payments ceased. Id.
Immediately following his sentencing, Plaintiff notified the Kauai SSA office of his pending custodial sentence and his "self surrender date" of January 7, 2011. Id. Although the Kauai SSA office initially had informed Plaintiff that his social security benefits would cease effective October 13, 2010, the date of his sentencing, Plaintiff appealed that finding and ultimately was awarded benefits for the period of time between the date of his sentencing and the date of his self surrender. Id. However, the SSA erroneously continued to issue benefits to Plaintiff following his self surrender date, up until July 2011. Id. At that time, the SSA, through its office in Richmond, California, then ordered Plaintiff to reimburse the SSA for benefits received between October 13, 2010 and July 2011. Id.
Plaintiff named his wife, Marlene Cooper ("Mrs. Cooper"), who is 77 years old, as his representative while he was incarcerated. Id. Plaintiff alleges that Mrs. Cooper had previously tendered the full reimbursement sought by SSA but the offer was rejected as unacceptable because Mrs. Cooper had not yet been Plaintiff's "named representative" at the time of tender. Id. Mrs. Cooper subsequently called the SSA's Seattle office and was informed that Plaintiff only owed reimbursement from January 7, 2011 through July 2011. Id. In total, Mrs. Cooper, as Plaintiff's "named representative," made four in-person attempts to tender reimbursement to the SSA for benefits received from January 2011 through July 2011. Id. at 4. However, all of these offers allegedly have been refused because they did not include reimbursement for the period from October 2010 through January 2011. Id. In response to these offers, the SSA threatened to begin deducting from Mrs. Cooper's SSA benefits in the amount of $1,000 per month beginning in June 2012. Id.
In a July 12, 2012 letter, Defendant informed Plaintiff that beginning in January 2011, Defendant was stopping the retirement benefits which Plaintiff had received because of his conviction. Id. at Ex. A. In the letter, Defendant stated, "[w]e cannot pay you because you are imprisoned for the conviction of a crime. Even though your benefits will stop, we can pay other members of your family if they are entitled on your record." Id.
At this point in time, Plaintiff is retired and will never work again, and he and his wife live on a fixed retirement income. (Compl. at 4.) Moreover, due to Mrs. Cooper's age (77) and health (requiring the services of a daily care-giver), her every day living expenses likely will increase significantly during the term of Plaintiff's incarceration. Id. at 4-5.
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
A court's subject matter jurisdiction may be challenged under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)"). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996).
"Rule 12(b)(1) attacks on jurisdiction can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint. Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003) (internal citation omitted).
"The requirement that the nonmoving party present evidence outside his pleadings in opposition to a motion to dismiss for lack of subject matter jurisdiction is the same as that required under Rule 56(e) that the nonmoving party to a motion for summary judgment must set forth specific facts, beyond his pleadings, to show that a genuine issue of material fact exists." Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987). When ruling on a jurisdictional motion involving factual issues that also go to the merits, the moving party "'should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Casumpang v. Int'l Longshoremen's & Warehousemen's Union, 269 F.3d 1042, 1060--61 (9th Cir. 2001) (citation omitted).
B. Special Considerations for a Pro Se Litigant
A pro se litigant's pleadings must be read more liberally than pleadings drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). When a plaintiff proceeds pro se and technically violates a rule, the court should act with leniency toward the pro se litigant. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986); Pembrook v. Wilson, 370 F.2d 37, 39-40 (9th Cir. 1966). However, "a pro se litigant is not excused from knowing the most basic pleading requirements." American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) (citations omitted).
However, the court may deny a pro se plaintiff leave to amend where amendment would be futile. Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990) (per curiam)); Lucas v. Dep't of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995) (per curiam) (holding that dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies ...