Willoughby v. Commissioner of Social Security et al

Filing 38

ORDER rejecting 34 Report and Recommendations; granting 11 Defendants' Motion to Dismiss Plaintiff's Complaint. Plaintiff's Complaint is dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff has fourteen (14) days from the date of this Order to file an amended complaint. Signed by Judge Paul G. Byron on 9/30/2014. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

KENNETH WILLOUGHBY,
Plaintiff,
v.

Case No: 6:13-cv-1365-Orl-40KRS

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY and THE SOCIAL
SECURITY ADMINISTRATION,
Defendants.
ORDER
This cause comes before the Court on the Report and Recommendation of
Magistrate Judge Karla R. Spaulding (Doc. 34), filed August 1, 2014. In her Report and
Recommendation, Magistrate Judge Spaulding recommends that the Court grant
Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 11). On August 13, 2014,
Plaintiff filed his Objections to Magistrate Judge’s Report and Recommendation (Doc. 36).
Defendant does not object to the Report and Recommendation, (Doc. 37), and has not
replied to Plaintiff’s objection within the allowable timeframe, (Doc. 37). As such, this
matter is ripe for the Court’s review.
I.

BACKGROUND
A.

Factual Background

Plaintiff (“Willoughby”) is disabled within the meaning of the Social Security Act
and

currently

receives

benefits

from

the

Social

Security

Administration

(the “Administration”). (Doc. 1, ¶ 8). According to Willoughby, the Administration requires

1

him to execute multiple forms in furtherance of his status as a beneficiary—namely, Form
SSA-1696, Form SSA-3288, Form SSA-827, HIPPA releases, and fee agreements
(collectively, the “Forms”). (Id. ¶ 11). Willoughby states that, on or about April 30, 2013,
he properly executed the Forms using his electronic signature and submitted the Forms
to the Administration. (Id. ¶¶ 13, 16). However, on May 21, 2013, the Administration
rejected the Forms as non-compliant with the Administration’s local policies regarding
signatures. (Id. ¶ 18).
The Administration, through the sworn affidavit of Social Insurance Specialist
Martha Shepherd, states that it provides its employees with guidance on how to process
claims for Social Security benefits. (Doc. 11-1, ¶ 2). These guidelines require that certain
forms have a traditional pen and ink—or “wet”—signature. (Id. ¶ 4). Included among the
forms that require a wet signature are Form SSA-1696, Form SSA-3288, and the fee
agreement. (Id. ¶¶ 5–7). The Administration will accept other forms with electronic
signatures, but will not accept electronic signatures on forms that require a wet signature.
(Id. ¶ 8).

The Administration admits that Willoughby had previously asserted

inconsistences in how the Administration processed forms throughout its Florida offices.
(Id. ¶ 9). As a result, the Administration states that it has since emailed all Florida offices
to explain the signature requirements for each form, including when electronic signatures
can and cannot be accepted. (Id.).
B.

Procedural History

On September 3, 2013, Willoughby initiated this lawsuit by filing a complaint
against the Administration and its acting commissioner, Carolyn W. Colvin
(the “Commissioner”). (Id.). In his Complaint, Willoughby alleges four claims for relief.

2

Count 1 alleges that the Administration violated the Electronic Signature in Global and
National Commerce Act (“E-Sign Act”), 15 U.S.C. §§ 7001–7006, for failing to give legal
effect to Willoughby’s electronically executed Forms. (See Doc. 1, ¶¶ 14–22). Count 2
alleges that the Administration violated the Uniform Electronic Transaction Act (“UETA”),
Fla. Stat. § 668.50, for failing to give legal effect to Willoughby’s electronically executed
Forms. (See id. ¶¶ 23–24). Count 3 alleges that the Administration violated the Equal
Protection Clause as applied through the Fifth Amendment of the United States
Constitution by discriminating against Willoughby on the basis of using an electronic
signature. (See id. ¶¶ 25–37). Finally, Count 4 demands injunctive relief through the ESign Act to enjoin the Administration from refusing to accept electronically executed
documents in the future. (See id. ¶¶ 38–41). Willoughby asserts that this Court has
subject matter jurisdiction under 28 U.S.C. § 1346. 1 (Id. ¶ 2).
On February 18, 2014, the Commissioner moved to dismiss Willoughby’s
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. (Doc. 11). The Commissioner essentially contends that 42 U.S.C. § 405(h)
bars Willoughby from asserting his claims against the Administration through 28 U.S.C.
§ 1346. (Id. at p. 2). Willoughby responded to the Commissioner’s motion to dismiss on
March 28, 2014. (Doc. 17). In his response, Willoughby asserts that his claims are not
subject to § 405(h)’s bar and states alternative means for the Court to find subject matter

1. It is unclear from Willoughby’s Complaint, as well as any other document submitted
by Willoughby, whether he is attempting to sue under the Tucker Act, 28 U.S.C.
§ 1346(a)(2) or the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). The
Commissioner assumes that Willoughby sues under the Tucker Act. (See Doc. 11,
p. 7). However, without illumination from Willoughby, the Court is compelled to explain
why Willoughby has failed to assert subject matter jurisdiction under either provision.

3

jurisdiction, including waiver of § 405(g)’s exhaustion requirement and jurisdiction under
the Mandamus Act. (Id. at pp. 3–18). With leave of court, the Commissioner replied on
May 12, 2014. (Doc. 23).
On August 1, 2014, Magistrate Judge Karla R. Spaulding issued her Report and
Recommendation on the Commissioner’s motion to dismiss, recommending that the
motion be granted.

(Doc. 34).

Willoughby timely objected to the Report and

Recommendation on August 13, 2014. (Doc. 36). The Commissioner does not object to
the Report and Recommendation. (Doc. 37).
C.

Findings of the Report and Recommendation and Willoughby’s
Objection

In her Report and Recommendation, Magistrate Judge Spaulding found that
§ 405(h) deprives this Court of subject matter jurisdiction to consider the claims alleged
by Willoughby’s Complaint. (Doc. 34, pp. 5–7). Specifically, Magistrate Judge Spaulding
determined that Willoughby’s claims regarding the Administration’s rejection of
Willoughby’s electronically signed Forms necessarily “arises under” the Social Security
Act because Willoughby appears to be “applying for social security disability and/or
supplemental income benefits.” (Id. at p. 7). As such, Magistrate Judge Spaulding
concluded that Willoughby’s only remedy “is to pursue his claims through the
administrative channels required by § 405(g).”

(Id.).

Magistrate Judge Spaulding

additionally concluded that Willoughby had not alleged a basis for subject matter
jurisdiction under the Mandamus Act. (Id. at pp. 7–8).
In his objection to the Report and Recommendation, Willoughby contends that the
allegations of his Complaint do not “arise under” the Social Security Act, but rather the
particular statutes named in his complaint—the E-Sign Act and the UETA—along with the

4

United States Constitution. (Doc. 36, pp. 3–5). Consequently, Willoughby takes the
position that his claims are not connected with any claim of benefits or the Social Security
Act in general, but are instead substantive claims arising under their respective statutes
and constitutional guarantees, thus circumventing the bar imposed by § 405(h). (See id.).
II.

STANDARDS OF REVIEW
A.

Report and Recommendation of the Magistrate Judge

When a party makes a timely and specific objection to a magistrate judge’s Report
and Recommendation, the district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); Jeffrey v. State Bd. of Educ. of State of
Ga., 896 F.2d 507, 512 (11th Cir. 1990). The district judge may accept, reject, or modify,
in whole or in part, the Report and Recommendation of the magistrate judge. Fed. R.
Civ. P. 72(b)(3). The district court may also receive further evidence or recommit the
matter to the magistrate judge with further instructions. Id.
B.

Challenges to Subject Matter Jurisdiction

Motions made pursuant to rule 12(b)(1) attack a district court’s subject matter
jurisdiction to consider the case at bar. Motions to dismiss under rule 12(b)(1) come in
two forms: “facial attacks” and “factual attacks.” Lawrence v. Dunbar, 919 F.2d 1525,
1528–29 (11th Cir. 1990). Facial attacks only require the court to determine if the plaintiff
has alleged a sufficient basis for subject matter jurisdiction. Id. at 1529. As such, the
allegations within the complaint are assumed true for the purpose of the motion. Id. On
the other hand, factual attacks challenge the existence of subject matter jurisdiction
irrespective of what the complaint alleges. Garcia v. Copenhaver, Bell & Assocs., M.D’s,

5

P.A., 104 F.3d 1256, 1260–61 (11th Cir. 1997). Accordingly, in a factual attack, courts
may consider information outside of the pleadings—including testimony, affidavits, and
other evidence—and “may make factual findings necessary to resolve the motion.”
Hawthorne v. Baptist Hosp., Inc., No. 3:08cv154/MCR/MD, 2008 WL 5076991, at *2 (N.D.
Fla. Nov. 24, 2008).
III.

DISCUSSION
Upon de novo review of the underlying pleadings, motions, supporting documents,

and Willoughby’s objection, the Court must reject the Report and Recommendation. For
the reasons set forth herein, Willoughby, the Commissioner, and the Magistrate Judge all
unduly analyze the factual basis for subject matter jurisdiction, focusing on whether
Willoughby’s Complaint asserts claims that “arise under” a claim for benefits within the
meaning of § 405(h). While the Magistrate Judge correctly concludes that Willoughby
fails to invoke this Court’s subject matter jurisdiction, it is not because his claims are
necessarily barred by § 405(h) or because Willoughby’s claims are not ripe for review
under the Social Security Act; it is because Willoughby’s Complaint on its face fails to
allege subject matter jurisdiction. 2 Accordingly, in reviewing Willoughby’s Complaint, the
Court must accept all allegations therein as true. Lawrence, 919 F.2d at 1529.
A.

Willoughby Fails to Invoke this Court’s Subject Matter Jurisdiction
Under 28 U.S.C. § 1346

“It is axiomatic that the United States may not be sued without its consent and that

2. The Magistrate Judge and the Commissioner appear to skip a step in their
jurisdictional analysis. Both conclude that § 405(h) bars Willoughby’s claims for relief
because they are made pursuant to 28 U.S.C. § 1346 and “arise under” a claim for
social security benefits. However, the Court in this case need not reach an analysis
of § 405(h) because Willoughby fails to demonstrate subject matter jurisdiction under
§ 1346 in the first place.

6

the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell,
463 U.S. 206, 212 (1983). The United States generally gives its consent expressly
through a statute authorizing suit. Price v. United States, 174 U.S. 373, 375–76 (1899).
It is also possible for a federal court to read an implied right of action in a statute or
constitutional provision that lacks an express mechanism for suing the United States.
E.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
411 (1971) (finding an implied right of action for violation of the Fourth Amendment).
However, in the absence of a federal statute authorizing suit against the United States or
a finding by a federal court of an implied right of action, the federal government cannot
be sued. See Price, 174 U.S. at 375–76. Therefore, Willoughby must demonstrate that
the United States either expressly or impliedly authorizes suit in order to invoke this
Court’s subject matter jurisdiction.
There are numerous mechanisms through which the United States waives
sovereign immunity and confers subject matter jurisdiction on the district courts for actions
against it. Willoughby predicates subject matter jurisdiction for his particular claims on
28 U.S.C. § 1346. (Doc. 1, ¶ 2). As noted in Section I.B, supra, 28 U.S.C. § 1346 is
divided into the Tucker Act, 28 U.S.C. § 1346(a)(2), and the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b), both of which waive sovereign immunity and confer
subject matter jurisdiction for claims against the United States under two distinct
circumstances.

Because the Court is unable to decipher under which provision

Willoughby attempts to bring his claims, each is addressed in turn.
1.

Willoughby Fails to Invoke Subject Matter Jurisdiction Under
the Tucker Act

The Tucker Act provides, in pertinent part, that district courts shall exercise

7

concurrent jurisdiction with the United States Court of Federal Claims over:
Any . . . civil action or claim against the United States, not
exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort . . . .
28 U.S.C. § 1346(a)(2). The essence of the Tucker Act is to waive sovereign immunity
and confer subject matter jurisdiction over claims based on a constitutional provision,
statute, or contract that itself creates the right to money damages against the United
States. Army & Air Force Exch. Serv., 456 U.S. 728, 738–39 (1982). Thus, jurisdiction
under the Tucker Act cannot be premised on the asserted violation of constitutional
provisions, statutes, regulations, or contractual relationships that do not specifically
authorize awards of money damages. Id. As such, the Tucker Act does not afford
jurisdiction to claims for injunctive relief, mandamus, specific performance, or any other
type of equitable relief. Richardson v. Morris, 409 U.S. 464, 465 (1973) (“[T]he [Tucker]
Act has long been construed as authorizing only actions for money damages and not suits
for equitable relief against the United States.”); see also Lee v. Thornton, 420 U.S. 139,
140 (1975) (holding injunctive and declaratory relief unavailable under the Tucker Act);
ben-Shalom v. Sec’y of the Army, 807 F.2d 982, 988 (Fed. Cir. 1986) (holding mandamus
relief unavailable under the Tucker Act).
The face of Willoughby’s Complaint explicitly precludes this Court from exercising
subject matter jurisdiction under the Tucker Act, as the only relief Willoughby seeks is
equitable in nature. (Doc. 1, p. 8 (seeking declaratory, injunctive, and mandamus-type
relief)). Moreover, Willoughby sues under the E-Sign Act, the UETA, and the Equal
Protection Clause of the United States Constitution. (Id. ¶¶ 14–37). Because none of

8

these claims specifically allow for money damages against the United States, Willoughby
cannot sue under the Tucker Act. Sheehan, 456 U.S. at 738–39.
2.

Willoughby Fails to Invoke Subject Matter Jurisdiction Under
the Federal Tort Claims Act

Willoughby most likely intends to bring his claims through the FTCA. The FTCA
confers exclusive subject matter jurisdiction to the district courts over:
[C]ivil actions on claims 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, under circumstances
where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b)(1). The purpose of the FTCA is to waive sovereign immunity for and
confer subject matter jurisdiction over claims accruing from the intentional and negligent
tortious acts of the federal government’s employees. See 28 U.S.C. § 2674.
In addition to numerous exceptions and limitations to bringing a lawsuit under the
FTCA, exhaustion of administrative remedies is a non-waivable jurisdictional prerequisite
to invoking a district court’s subject matter jurisdiction. McNeil v. United States, 508 U.S.
106, 112 (1993). When a claimant wishes to sue under the FTCA, he must first submit a
complaint to the agency allegedly liable for the wrongdoing. 28 U.S.C. § 2675(a). The
agency then has six months to admit or deny the claimant’s allegations. Id. If the agency
denies liability or fails to act within the six month period, only then may the claimant avail
himself of the district court’s jurisdiction. Id.
Here, Willoughby’s Complaint fails to demonstrate compliance with the FTCA’s
exhaustion requirement. (See Doc. 1). Consequently, Willoughby’s Complaint fails on

9

its face to invoke the Court’s subject matter jurisdiction under the FTCA. McNeil, 508 U.S.
at 112.
B.

Willoughby Fails to Assert Subject Matter Jurisdiction Through Any
Other Jurisdictional Mechanism

Finding that Willoughby has failed to invoke this Court’s subject matter jurisdiction
either through the Tucker Act or the FTCA, the Court turns to Willoughby’s Complaint to
consider whether he asserts any other means by which this Court may exercise
jurisdiction. The Court finds none. 3 Moreover, the Court declines to muse on whether
the E-Sign Act confers an implied right of action, especially where Willoughby does not
so contend.
IV.

CONCLUSION
The Court finds that the Magistrate Judge unduly analyzed the factual basis

underlying Willoughby’s assertion of subject matter jurisdiction under 28 U.S.C. § 1346.
As such, the Court must reject the Report and Recommendation. Nevertheless, the Court
concludes that Willoughby’s Complaint fails on its face to allege subject matter jurisdiction
under the Tucker Act, the FTCA, or through any other jurisdictional mechanism, whether
express or implied. Accordingly, it is hereby ORDERED AND ADJUDGED:
1. The Magistrate Judge’s Report and Recommendation (Doc. 34) is

3. In his response to the Commissioner’s motion to dismiss, Willoughby contends that
the Court could exercise jurisdiction over his claims through the Mandamus Act,
28 U.S.C. § 1361, which confers original jurisdiction to the district courts over actions
“to compel an officer or an employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” (See Doc. 17, pp. 15–19). However,
Willoughby’s Complaint does not allege subject matter jurisdiction under the
Mandamus Act. (See Doc. 1). If Willoughby desires to allege jurisdiction under the
Mandamus Act, he may do so in an amended complaint. See Fed. R. Civ. P. 8(a)(1)
(requiring that all pleadings state the grounds for a federal court’s jurisdiction).

10

REJECTED.
2. Upon de novo review of the record, Defendant’s Motion to Dismiss Plaintiff’s
Complaint (Doc. 11) is GRANTED.
3. Plaintiff’s Complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE for
lack of subject matter jurisdiction. Plaintiff has fourteen (14) days from the
date of this Order to file an amended complaint. Failure to file an amended
complaint within the time permitted will result in the Court closing the case
without further notice.
4. Plaintiff’s Objections to Magistrate Judge’s Report and Recommendation
(Doc. 36) is OVERRULED.
DONE AND ORDERED in Orlando, Florida on September 30, 2014.

Copies furnished to:
The Honorable Magistrate Judge
Counsel of Record

11