                                                                 [DO NOT PUBLISH]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, 1529 (11th Cir. 1990) (per
curiam).

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