Stanisic v. Colvin

Filing 16

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 10 (Illston, Susan) (Filed on 9/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH J. STANISIC,

Case No. 14-cv-03744-SI

Plaintiff,
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v.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

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United States District Court
Northern District of California

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Re: Dkt. No. 10

Defendant.

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Currently before the Court is defendant’s motion to dismiss Counts I and II of plaintiff’s

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complaint. Dkt. No. 10. For the reasons set forth below, the Court GRANTS defendant’s motion.

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BACKGROUND

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This case involves a dispute over the amount of monthly benefits and retroactive lump sum

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benefits owed to a retiree. On January 21, 2011, plaintiff filed an application for retirement

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insurance benefits. Administrative Record (“AR”) at 12. Plaintiff was seventy-two years old at

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that time. Id. On February 19, 2011, plaintiff received notice of his entitlement to monthly

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retirement benefits dating back to July 2010, as well as to a retroactive lump-sum benefit payment

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of $9,730 to cover the period of July 2010 to January 2011. Id. at 19-21.

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On April 21, 2011, plaintiff requested a reconsideration of his monthly retirement benefits.

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He argued that the monthly amount did not reflect the postponement of his retirement until the age

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of seventy-two, and did not reflect his income from 1978, 1979, and 1997. Id. at 23-27. The

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Social Security Administration (“SSA”) denied plaintiff’s request because he did not provide

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evidence of income earned in 1978, 1979, and 1997. Id. at 27-30. The SSA further explained that

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retirement benefits cease to increase after age seventy, pursuant to 42 U.S.C. §402(w). Id. at 29.

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On December 14, 2011, plaintiff filed a second request for reconsideration challenging the

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calculation of his retroactive lump-sum retirement benefit payment. Id. at 31-34. He argued that

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he was entitled to additional retroactive benefit payments for the twenty-three months between

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July 2008, when he turned age seventy, to July 2010, when his retroactive benefits went into

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effect. See id. at 32. The SSA denied plaintiff’s second request for reconsideration, finding that

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the retroactive benefits were correctly paid for the six months prior to the date of his application

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for benefits. Id. at 35.
On March 12, 2012, plaintiff filed a written request for a hearing with an Administrative

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Law Judge (“ALJ”). Id. at 36. On November 29, 2012, the ALJ ruled that the SSA properly

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calculated plaintiff’s benefits. Id. at 12-15. Plaintiff requested review of the ALJ’s decision, and

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United States District Court
Northern District of California

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the Appeals Council denied his request, making the ALJ’s decision the final decision of the

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Commissioner. Id. at 3-5.

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On August 14, 2014, plaintiff, appearing pro se, filed his complaint for judicial review of

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the Commissioner’s final decision on his retirement benefits claim. Dkt. No. 1. Plaintiff also

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brings two counts of negligence against the Commissioner. Complaint for Damages at 1-2. In

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Count I, plaintiff contends that the Commissioner was negligent when she failed to notify plaintiff

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that retirement benefits cease to increase after age seventy.

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Commissioner should have added a statement in the SSA annual beneficiary statement directing

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prospective recipients to apply for benefits before age 70.5 to avoid a partial loss of benefits. Id.

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In Count II, plaintiff contends that the SSA was negligent when the Appeals Council denied

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review of the ALJ’s November 2012 ruling because his claim involved “a broad policy or

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procedural issue that may affect the public interest.” Id. at 2-3 (quoting 20 C.F.R. § 404.970).

Id. at 2.

He claims that the

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Defendant moves to dismiss Counts I and II under Federal Rule of Civil Procedure

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12(b)(1) and 12(b)(6). Dkt. No. 10. Defendant states that plaintiff failed to exhaust administrative

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remedies under the Federal Tort Claims Act (“FTCA”) and failed to name the proper party.

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Motion at 2.

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LEGAL STANDARDS

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I.

Rule 12(b)(1) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court’s

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jurisdiction over the subject matter of the complaint. See Fed. R. Civ. P. 12(b)(1). The party

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invoking the jurisdiction of the federal court bears the burden of establishing that the court has the

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requisite subject matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life

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Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). A complaint will be dismissed if,

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looking at the complaint as a whole, it appears to lack federal jurisdiction either “facially” or

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“factually.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In ruling on a

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motion to dismiss, the Court will take all material allegations in the complaint as true and will

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United States District Court
Northern District of California

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construe them in the light most favorable to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898

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(9th Cir. 1986).

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II.

Legal Standard under the FTCA

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“Sovereign immunity is an important limitation on the subject matter jurisdiction of federal

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courts.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). The United States and

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its agents are immune from suit except where the United States has waived sovereign immunity

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and consented to be sued. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA waives the

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United States’ sovereign immunity for certain claims seeking monetary damages “arising out of

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torts committed by federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18

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(2008) (citing 28 U.S.C. § 1346(b)(1)).

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The FTCA sets forth several jurisdictional prerequisites before tort claims against the

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United States can be brought in court. The FTCA requires parties to first file a claim with the

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appropriate federal agency.

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jurisdiction unless the agency denies the claim or six months have passed since the claim was

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filed.

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requirement is jurisdictional in nature and must be interpreted strictly.” Vacek, 447 F.3d at 1250;

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see also Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992).

See id.

See 28 U.S.C. § 2675(a). Federal courts do not have subject matter

The Ninth Circuit has repeatedly held that “the [administrative] exhaustion

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DISCUSSION

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Plaintiff asserts two negligence claims against defendant Carolyn W. Colvin, Acting

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Commissioner of Social Security. Complaint for Damages at 2-3. Defendant argues that these

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claims must be dismissed because plaintiff has not exhausted his administrative remedies as set

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forth by the FTCA, 28 U.S.C. § 2675(a). Motion at 5.
Plaintiff has not exhausted any administrative remedies for his negligence claims and

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“does not object to the dismissal of the two negligent causes of action against the Commissioner if

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the dismissal is without prejudice to the Plaintiff.” See Response at 4. While there may be

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exceptional circumstances in which it is appropriate to excuse compliance with the exhaustion

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requirement, the record here does not compel such a finding. See, e.g., Bowen v. City of N.Y., 476

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United States District Court
Northern District of California

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U.S. 467, 482 (1986) (plaintiffs’ failure to exhaust administrative remedies was excused where

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government’s secretive conduct precluded claimants from being aware that government was acting

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pursuant to illegal internal policy). Before plaintiff may pursue his claims in court, he must first

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file his tort claims with “the appropriate Federal agency within two years after such claim

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accrues.” See 28 U.S.C. §§ 2401(b), 2675(a). Plaintiff appears to be aware of the procedural

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requirements for exhaustion under the FTCA and states that he is preparing to commence this

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process.1 See Response at 4-5.

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Defendant's motion to dismiss the tort claims is therefore granted, without prejudice to

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plaintiff's re-filing after he exhausts his administrative remedies. The Court retains jurisdiction to

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review the Commissioner’s final decision on plaintiff’s retirement claims, pursuant to 42 U.S.C.

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§ 405(g), a separate issue from the tort claims. Because the Court does not have subject matter

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jurisdiction over Counts I and II, the Court need not reach defendant’s alternative Rule 12(b)(6)

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argument.

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Plaintiff’s administrative tort claim need not be extensive to be exhausted. See Goodman
v. United States, 298 F.3d 1048, 1055 (9th Cir. 2002). Plaintiff only needs to file a brief written
notice or statement with defendant “containing a general description of the time, place, cause and
general nature of the injury and the amount of compensation demanded.” Id.
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CONCLUSION

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For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss Counts I and

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II of plaintiff’s complaint, without prejudice to plaintiff's refiling the claims after he has exhausted

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his administrative remedies.

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The deadlines set forth in the August 18, 2014 procedural order, which governs plaintiff's

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judicial review complaint, are hereby amended. See Dkt. No. 2 at 1.

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---Defendant shall file her answer by September 21, 2015.

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---Plaintiff shall file either a motion for summary judgment or a motion for remand

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by October 19, 2015.
---Defendant shall file her opposition and/or counter-motion by November 16, 2015.

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United States District Court
Northern District of California

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---Plaintiff may file his reply, if any, by December 4, 2015.

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IT IS SO ORDERED.
Dated: September 9, 2015
______________________________________
SUSAN ILLSTON
United States District Judge

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