                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-15144                 ELEVENTH CIRCUIT
                                                                APRIL 22, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                    D. C. Docket No. 07-00742-CV-WS-M

REV. PRESTON L. SCARBROUGH,


                                                              Plaintiff-Appellant,

                                     versus

MICHAEL J. ASTRUE,

                                                             Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                                (April 22, 2009)

Before DUBINA, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Preston L. Scarbrough appeals pro se from the district court’s
dismissal of his tort claims for lack of subject matter jurisdiction and its dismissal

of his constitutional claims for failure to state a claim upon which relief could be

granted. He also appeals the district court’s affirmance of the Social Security

Administration’s (“SSA”) denial of retroactive disability insurance benefits,

pursuant to 42 U.S.C. § 405(g), and Supplemental Security Income (“SSI”),

pursuant to 42 U.S.C. § 1383(c)(3).

      On appeal, Scarbrough argues that he exhausted his administrative remedies

as to his tort claims, and therefore the district court’s dismissal of his claims was

inappropriate. As to his constitutional claims, he argues that the district court

belittled his testimony and impaired his right to contract. Additionally, Scarbrough

contends that his disability benefits should be retroactive to the onset date of his

disability, not the date he filed his application for benefits. Lastly, as to his SSI

claim, Scarbrough argues that he is entitled to benefits because, contrary to the

Commissioner’s finding, he had no excess income that would bar the benefits.

                                     I. Tort claims

      We review a district court’s dismissal of a complaint for lack of subject

matter jurisdiction de novo. Federated Mut. Ins. Co. v. McKinnon Motors, LLC,

329 F.3d 805, 807 (11th Cir. 2003). “Facial attacks” on the complaint under

Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, require the district



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court “to look and see if the plaintiff has sufficiently alleged a basis of subject

matter jurisdiction, and the allegations in his complaint are taken as true for the

purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.

1990) (quotation and alteration omitted).

      The Federal Tort Claims Act (“FTCA”) states in relevant part:

      An action shall not be instituted upon a claim against the United
      States for money damages for injury or loss of property or personal
      injury or death caused by the negligent or wrongful act or omission of
      any employee of the Government while acting within the scope of his
      office or employment, unless the claimant shall have first presented
      the claim to the appropriate Federal agency and his claim shall have
      been finally denied by the agency in writing and sent by certified or
      registered mail.

28 U.S.C. § 2675(a). This requirement is jurisdictional, and failure to exhaust

administrative remedies prevents judicial review of a tort claim against the United

States. Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir.

2008). The Supreme Court has held that a pro se petitioner is bound by the

FTCA’s exhaustion requirement, stating, “we have never suggested that procedural

rules in ordinary civil litigation should be interpreted so as to excuse mistakes by

those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113,

113 S. Ct. 1980, 1984, 124 L. Ed. 2d 21 (1993).

      Because, even as a pro se petitioner, Scarbrough was bound by the

exhaustion requirement of the FTCA and failure to exhaust prevents judicial

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review of his tort claims against the United States, we affirm the district court’s

dismissal of his tort claims.

                                II. Constitutional claims

      We review a grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for

failure to state a claim de novo, “accepting the allegations in the complaint as true

and construing them in the light most favorable to the plaintiff.” Glover v. Liggett

Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). “Pro se pleadings are held to a

less stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)

(quotation omitted). Federal Rule of Civil Procedure 8(a)(2) requires that a

complaint contain “a short and plain statement of the claim showing that the

pleader is entitled to relief. Specific facts are not necessary; the statement need

only give the defendant fair notice of what the claim is and the grounds upon

which it rests.” Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200, 167

L. Ed. 2d 1081 (2007) (quotations and alteration omitted). Furthermore, “[f]actual

allegations must be enough to raise a right to relief above the speculative level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, ___, 127 S. Ct. 1955, 1965, 167 L. Ed.

2d 929 (2007).

      Because Scarbrough’s complaint and objection to the motion to dismiss



                                            4
provided no details about which constitutional rights were allegedly infringed and

which acts of the Commissioner infringed those rights, it cannot be said that the

Commissioner received fair notice of what claims Scarbrough alleged.

Accordingly, we affirm the district court’s dismissal of Scarbrough’s constitutional

claims.

                          III. Disability benefits and SSI

      We review the decision of the Administrative Law Judge (“ALJ”) as the

Commissioner’s final decision when the ALJ denies benefits and the Appeals

Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274,

1278 (11th Cir. 2001). The Commissioner’s decision on a disability benefits

application will be affirmed if it is supported by substantial evidence and the

Commissioner applied the correct legal standards. Kelley v. Apfel, 185 F.3d 1211,

1213 (11th Cir. 1999). The Commissioner’s legal conclusions are reviewed de

novo. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).

      The Social Security Disability Insurance program provides for benefits

under Title II of the Social Security Act to persons who have contributed to the

program and who are determined to be “disabled” due to a physical and/or mental

impairment. 42 U.S.C. § 401 et seq. The SSI program extends benefits under Title

XVI of the Social Security Act to indigent disabled persons. 42 U.S.C. § 1381 et



                                           5
seq.

       The Act places a statutory limitation on retroactivity of disability benefits:

       An individual who would have been entitled to a disability insurance
       benefit for any month had he filed application therefor before the end
       of such month shall be entitled to such benefit for such month if such
       application is filed before the end of the 12th month immediately
       succeeding such month.

42 U.S.C. § 423(b).

       The basic purpose underlying the SSI program is to “assure a minimum level

of income for people who are age 65 or over, or who are blind or disabled and who

do not have sufficient income and resources to maintain a standard of living at the

established Federal minimum income level.” 20 C.F.R. § 416.110. The Social

Security Act conditions eligibility for SSI benefits on meeting income and resource

requirements. 42 U.S.C. § 1382(a)(1)(A) and (B). Pursuant to 42 U.S.C.

§ 1382a(a)(2)(B), unearned income for purposes of calculating SSI eligibility

includes disability benefits. 42 U.S.C. § 1382a(a)(2)(B); 20 C.F.R. § 416.1121(a).

       Pursuant to 42 U.S.C. § 423(b), Scarbrough could not receive benefits

beginning more than 12 months before the date he filed his application. Because

he filed the application at issue here in November 1991, November 1990 was the

earliest date Scarbrough was eligible for disability benefits. Thus, substantial

evidence supports the ALJ’s decision that Scarbrough was ineligible for benefits



                                            6
for the period from 1984 to 1990. Furthermore, as demonstrated in the ALJ’s

charts, Scarbrough’s monthly income from his disability benefits exceeded the

maximum permissible income for SSI during every year between 1990 and 2006.

Because disability benefits are unearned income counting toward the maximum

permissible income under SSI, substantial evidence supports the ALJ’s finding that

Scarbrough’s income rendered him ineligible for SSI from 1990 until 2006.

Accordingly, because substantial evidence supports the ALJ’s findings that

Scarbrough was not entitled to disability benefits beginning more than one year

before his 1991 application and that he was ineligible for SSI due to his income,

we affirm the district court’s order.

                                   IV. Conclusion

      For the above-stated reasons, we affirm the judgment of dismissal and the

district court’s order affirming the SSA’s denial of disability and SSI benefits.

      AFFIRMED.




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