MACKEY v. UNITED STATES OF AMERICA

Filing 10

MEMORANDUM AND OPINION. Signed by Judge Rudolph Contreras on 2/3/15. (ms, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
TERRANCE MACKEY,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 14-0980 (RC)

MEMORANDUM OPINION
The defendant, by counsel, has filed a motion to dismiss the complaint [ECF No. 6]. 1 For
the reasons discussed below, the motion will be granted.
I. BACKGROUND
“[O]wing to his age,” plaintiff had been “awarded the sum of $929.00 per month, and
decreasing to $905.00 per month, as Social Security Benefits.” Verified Complaint (“Compl.”) ¶
6. He received payments in August and December 2004, id. ¶¶ 6, 8, “but through some oversight
or problem,” id. ¶ 8, he had not received payments between August 2005 and August 2007, id.
Plaintiff has been incarcerated since 2008, id. ¶ 9, and presently is confined in a federal
correctional facility in Terre Haute, Indiana, id. ¶ 1.

1

The proper defendant in this action is the Commissioner of Social Security, not the United
States of America. Nevertheless, in light of plaintiff’s pro se status, the Court proceeds as if the
proper defendant had been named.
1

According to plaintiff, defendant owes him $9,194.00. Id. ¶ 11. He alleges that he
“made [a] demand for payment . . . which was rejected . . . on or about March 13, 2013.” Id. ¶
12. Defendant, plaintiff explains, “could not issue payment to [him] under Social Security Act
Article 202(x)(1)(A) [because he] is imprisoned.” Id. ¶ 13. Plaintiff now seeks a court order
directing defendant “to pay [him] the sum of Nine-thousand, one-hundred, ninety-four dollars
($9,194.00) plus interest thereon, from August of 2005[,]” among other relief. Id. at 5 (page
number designated by ECF).
II. DISCUSSION
Defendant asserts that a “special venue statute . . . applies to Social Security appeals,”
Motion to Dismiss and Supporting Memorandum of Points and Authorities (“Def.’s Mot.”) at 4,
under which an action for review of a final decision of the Commissioner of Social Security
“shall be brought in the . . . judicial district in which the plaintiff resides, or has his principal
place of business, or, if he does not reside or have his principal place of business within any such
judicial district, in the United States District Court for the District of Columbia.” 42 U.S.C. §
405(g). Defendant argues that venue in this district is not proper because plaintiff “is in prison in
Indiana, and he does not allege that he has a principal place of business in the District of
Columbia.” Def.’s Mot. at 4. Plaintiff “urges the Court to refrain from the drastic, and uncalled
for remedy of dismissal,” opting instead to “transfer the matter to the Federal District in
Indianapolis, Indiana” if the Court “determine[s] that this District [is] forum non conveniens.”
Plaintiff Terrance Mackey’s Opposition to the Defendant’s Motion to Dismiss at 3.
The Court may dismiss an action filed in the wrong district or, if it is in the interest of
justice, instead may transfer the case to any district where the action could have been brought.

2

See 28 U.S.C. § 1406(a). In this Circuit, a prisoner “resides” in the federal district where he is
incarcerated. In re Pope, 580 F.2d 620, 622 (D.C. Cir. 1978) (stating that “for purposes of the
general venue statute a prisoner has his residence at his place of confinement”) (citing Starnes v.
McGuire, 512 F.2d 918, 925 n.7 (D.C. Cir. 1974)); Jones v. United States, 820 F. Supp. 2d 58,
61 (D.D.C. 2011) (finding that prisoner incarcerated in the Eastern District of Virginia resides in
that district, such that, “under the law of this Circuit, the District of Columbia is not a proper
venue for this action”). Plaintiff does not reside in the District of Columbia, and he could have
brought this action in the Southern District of Indiana where the Terre Haute facility is located.
Ordinarily, transfer is preferable to dismissal, see, e.g., Sierra Club v. Tennessee Valley
Auth., 905 F. Supp. 2d 356, 364 (D.D.C. 2012), particularly where transfer removes “procedural
obstacles” such as “the lack of personal jurisdiction, improper venue and statute of limitation
bars.” Sinclair v. Kleindienst, 711 F.2d 291, 294 (D.C. Cir. 1983) (citation omitted). However,
transfer is not warranted where it appears that dismissal by the transferee court is likely because
the complaint fails to state a claim upon which relief can be granted. See Ananiev v. Wells Fargo
Bank, N.A., 968 F. Supp. 2d 123, 133-34 (D.D.C. 2013). This is such a case.
It appears that payment of benefits owed to plaintiff for any time period prior to his
incarceration is barred under the No Social Security Benefits for Prisoners Act of 2009, Pub. L.
No. 111-115, 123 Stat. 3029 (2009), which in relevant part provides:
In the case of payment of less than the correct amount of benefits
to or on behalf of any individual, no payment shall be made to such
individual . . . during any period for which such individual . . . is
not an eligible individual . . . because such individual is an inmate
of a public institution that is a jail, prison, or other penal institution
or correctional facility the purpose of which is to confine
individuals . . . , until such person is no longer considered an
ineligible individual . . . .

3

42 U.S.C. § 1383(b)(7)(A). The Court is persuaded by the reasoning of the United States Court
of Appeals for the Second Circuit:
[A]n incarcerated individual who has been underpaid social
security benefits may not receive payment of those benefits until
he . . . is released from prison. In particular, we read the relevant
statutory language, that the Act “shall be effective for payments
that would otherwise be made” after the date of the Act’s
enactment, as clearly stating that no payments shall be made to
prisoners after the Act’s enactment, even if the underlying
obligation to pay predates the Act . . . . To pay [the incarcerated
plaintiff] now would require SSA to re-tender a check to him while
he remains “an inmate of a public institution that is a jail, prison,
or other penal institution or correctional facility.” 42 U.S.C. §
1383(b)(7)(A). The text of the Act clearly bars such payments,
without exception. See id. (“no payment shall be made . . . during
any period” in which an individual is incarcerated).
Fowlkes v. Thomas, 667 F.3d 270, 272 (2d Cir. 2012) (per curiam). Even if defendant owes
plaintiff benefits accrued for a period before his incarceration, the No Social Security Benefits
for Prisoners Act bars payment of these benefits as long as plaintiff remains incarcerated.
If the Court were to transfer this action, it is likely that the complaint would be dismissed
because it fails to state a claim upon which relief can be granted. Under these circumstances, the
Court concludes that it is not in the interest of justice to transfer this action and, instead will
grant defendant’s motion to dismiss. See Paiva v. United States, No. 13-49 C, 2013 WL
1715765, at *1 (Fed. Cl. 2013) (citing Fowlkes, noting that transfer of prisoner’s claim for Social
Security benefits “would appear to be futile”).
An Order accompanies this Memorandum Opinion.
/s/
RUDOLPH CONTRERAS
United States District Judge
DATE: February 3, 2015
4