Craig v. Commissioner of Social Security

Filing 6

OPINION AND ORDER dismissing 1 Complaint without prejudice for lack of jurisdiction; denying as moot 2 Motion for temporary restraining order; denying as moot 3 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall close the case. Signed by Judge John E. Steele on 5/11/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MARY CRAIG,
Plaintiff,
v.

Case No: 2:16-cv-351-FtM-99CM

CAROLYN
COLVIN,
Commissioner
of
Security,

Acting
Social

Defendant.

OPINION AND ORDER
This matter comes before the Court on review of plaintiff's
Verified Complaint (Doc. #1) and Motion for Temporary Restraining
Order (Doc. #3) filed on May 10, 2016.
Administrative

Law

Judge

(ALJ)

Plaintiff seeks to preclude

Larry

J.

Butler

from

hearing

plaintiff’s case scheduled for May 11, 2016, due to his bias, and
to protect plaintiff’s constitutional right to a full and fair
hearing.

(Doc. #1, ¶ 1.)

Verified

Complaint

is

For the reasons set forth below, the

dismissed

for

lack

of

subject-matter

jurisdiction, and the Motion for a temporary restraining order
will be denied as moot.
A complaint must set forth “a short and plain statement of
the grounds for the court’s jurisdiction”.
8(a)(1).

Fed. R. Civ. P.

The Court “should inquire into whether it has subject

matter

jurisdiction

at

the

earliest

possible

stage

in

the

proceedings. Indeed, it is well settled that a federal court is
obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.”

Univ. of S. Alabama v. Am. Tobacco

Co., 168 F.3d 405, 410 (11th Cir. 1999) (collecting cases).

If

the Court determines “at any time” that it lacks subject-matter
jurisdiction, the Court must dismiss the case.

Fed. R. Civ. P.

12(h)(3).
The Verified Complaint (Doc. #1) provides that it is an action
for a temporary restraining order pursuant to Local Rule 4.05.
Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1361, for
mandamus relief, and § 1331, because plaintiff asserts a violation
of due process.

Plaintiff also asserts jurisdiction pursuant to

42 U.S.C. § 405(g) “because this case involves a constitutional
claim wholly collateral to the substantive claim of entitlement to
disability

benefits.”

(Doc.

#1,

¶

2.)

Plaintiff,

through

counsel, requested that ALJ Butler recuse himself from the case
however he declined to do so without a stated reasons or written
explanation.

(Doc. #1, ¶¶ 5, 7, 8.)

Plaintiff sought a recusal

alleging bias, an inability to follow Commissioner’s rules and
policies based on public statements, Butler’s pending lawsuit
against the Commissioner, and the Commissioner’s complaint against
Butler.

Plaintiff contacted the Hearing Office Chief ALJ, the

Acting Regional Chief ALJ, and the Division of Quality Services

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about the request to withdraw but no relief was afforded with
regard to the refusal to provide a stated reason for denying
recusal.

(Id., ¶ 8.)

Plaintiff alleges that administrative

remedies were exhausted and no other adequate remedy is available.
(Id., ¶ 9.)

Plaintiff seeks injunctive relief to prevent Butler

from presiding over the hearing and plaintiff’s case.
“First, judicial review under the federal-question statute,
28 U.S.C. § 1331, is precluded by 42 U.S.C. § 405(h).”

Your Home

Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 456 (1999).
See also 42 U.S.C. § 405(h) (“No action against the United States,
the Commissioner of Social Security, or any officer or employee
thereof shall be brought under section 1331 or 1346 of Title 28 to
recover on any claim arising under this subchapter.”).

Middle

District of Florida Local Rule 4.05, which addresses motions for
temporary restraining orders, also does not provide a basis for
subject-matter

jurisdiction

because

federal subject-matter jurisdiction.
443, 452, 454 (2004).

only

Congress

can

create

Kontrick v. Ryan, 540 U.S.

See also Fed. R. Civ. P. 82 (“These rules

do not extend or limit the jurisdiction of the district courts or
the venue of actions in those courts.”).
Plaintiff also appears to allege jurisdiction and a claim
directly under the Due Process Clause of the Fifth Amendment, and
that no other means are available to vindicate her rights.

As

discussed below, plaintiff does have other avenues and a due

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process

claim

as

a

basis

for

jurisdiction

cannot

stand

when

Congress has provided for relief, and no special factors cause
hesitation in the absence of affirmative action by Congress.
Davis v. Passman, 442 U.S. 228, 245 (1979); Butz v. Economou, 438
U.S. 478, 503 (1978); Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 396 (1971); Bell v. Hood, 327
U.S. 678, 682 (1946).
“The common-law writ of mandamus, as codified in 28 U.S.C. §
1361, is intended to provide a remedy for a plaintiff only if he
has exhausted all other avenues of relief and only if the defendant
owes him a clear nondiscretionary duty.”

Heckler v. Ringer, 466

U.S. 602, 616 (1984).

To the extent that plaintiff may be

asserting

due

a

jurisdiction,

procedural
such

a

claim

process
is

claim

frivolous

on

as
its

a

basis
face.

for
The

administrative review process provides procedures if an ALJ does
not withdraw upon objection or a request for disqualification, and
clearly state that “you may, after the hearing, present your
objections to the Appeals Council as reasons why the hearing
decision should be revised or a new hearing held before another
administrative law judge.”

20 C.F.R. § 404.940 (emphasis added).

Additionally, a district court’s review of the final decision of
the Commissioner can include the failure to recuse an ALJ.

E.g.,

Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 874 (11th Cir.
2011).

Since plaintiff as not exhausted all other avenues of

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relief, mandamus relief is not appropriate.

Additionally, no

final decision has been rendered so as to provide a basis for
judicial review under 42 U.S.C. 405(g).
Accordingly, it is hereby
ORDERED:
1. The Verified Complaint (Doc. #1) is dismissed

without

prejudice for lack of subject-matter jurisdiction.
2. Plaintiff's Motion for Temporary Restraining Order (Doc.
#2) is DENIED as moot.
3. The Motion to Proceed In Forma Pauperis (Doc. #3) is
DENIED.
4. The Clerk shall close the case.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2016.

Copies:
U.S. Magistrate Judge
Counsel of Record

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11th

day