Brooks v. Commissioner of Social Security

Filing 21

ORDER granting in part and denying in part 15 motion to dismiss. Signed by Magistrate Judge Thomas B. Smith on 7/23/2018. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
YVONE ETHEDIA BROOKS,
Plaintiff,
v.

Case No: 6:18-cv-54-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
Plaintiff Yvone Ethedia Brooks seeks review of Defendant the Commissioner of
Social Security’s March 25, 2015 dismissal of her request for an administrative hearing
(Docs. 1, 15). The Commissioner has moved to dismiss this case on the ground that the
Court lacks subject matter jurisdiction (Doc. 15). 2 The Court has considered the motion
and Plaintiff’s response (Doc. 20). For the reasons set forth below, the motion to dismiss
is due to be granted in part and denied in part.
Background
Plaintiff receives Supplemental Security Income (“SSI”) payments from Defendant
(Doc. 1, ¶ 3). At an unknown point in time, Defendant concluded that it had overpaid
$17,652 in SSI benefits to Plaintiff and decided to withhold money from her future benefits
until the overpayment was recovered (Doc. 16, ¶ 3; Doc. 16-1 at 1). On May 3, 2013,
Defendant sent Plaintiff a letter, informing her that it had overpaid her benefits and that

1 On May 30, 2018, both parties consented to the exercise of jurisdiction by a magistrate judge
(Doc. 17). The case was referred to me by an Order of Reference that same day (Doc. 18).

In support of the motion, the Commissioner has filed the declaration of Cristina Prelle, acting chief
of Court Case Preparation and Review Branch 3 Office of Disability Adjudication and Review Social
Security Administration (Doc. 16).
2

$16,301.80 remained due and unpaid (Doc. 16-1 at 1). The letter advised Plaintiff that
she had 60 days to request review of Defendant’s decision (Id., at 2).
On June 24, 2013, Plaintiff’s attorney sent a letter to Defendant, informing it that he
had been retained by Plaintiff “to represent her in her appeal of a purported Notice of
Overpayment of her SSI benefits” (Doc. 16-2 at 2). Included with the letter were a formal
Request for Reconsideration (Id., at 1), and a Consent for Release of Information signed
by Plaintiff (Id., at 2). Defendant received this correspondence the next day (Id., at 1-2).
Plaintiff’s lawyer sent another letter to Defendant on September 6, 2013, stating
that he had not received a response to Plaintiff’s request for reconsideration or her
consent to the release of information (Doc. 16-4 at 3). Apparently, Defendant denies
receipt of this letter.
On October 3, 2013 Defendant sent a letter to Plaintiff informing her that it had
denied her request for reconsideration (Doc. 16-3). The letter also advised Plaintiff that
she had 60 days to request a hearing (Id., at 1). The letter does not show a copy to
Plaintiff’s lawyer and both he and Plaintiff deny receiving the letter (Doc. 20 at 2; Id.).
Plaintiff’s lawyer sent a third letter to Defendant on August 21, 2014, advising that
he had not received responses to either of his first two letters (Id., at 2). Included with this
letter was a Request for Hearing by Administrative Law Judge and a request for
“immediate action” (Id.) (emphasis in original). Defendant received this letter on August
22, 2014 (Id., at 1).
On March 26, 2015, an administrative law judge (“ALJ”) denied Plaintiff’s request
for a hearing and entered a Notice of Dismissal (Doc. 16-5). In a separate Order of
Dismissal, the ALJ explained that Plaintiff’s request for a hearing came more than 65
days after the denial of her request for reconsideration and was therefore, untimely (Id., at

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4). The Notice and Order were addressed to Plaintiff, they do not show copies to her
lawyer.
Plaintiff sent Defendant a handwritten letter on June 19, 2015 in which she
complained that she was being treated unfairly by her lawyer and Defendant (Doc. 16-6
at 1). She said she needed an opportunity to “get the record straight,” and asked
Defendant to vacate the order dismissing her case (Id., at 2). She also said she had just
learned that her lawyer had not filed papers with the Appeals Council and had not
followed up on her appeal (Id., at 1-2).
Because the ALJ’s Order of Dismissal was not sent to Plaintiff’s lawyer, the
Appeals Council found good cause for the later filing of Plaintiff’s request for Appeals
Council review (Doc. 16-2 at 2). But, the Appeals Council found that the ALJ had not
abused his discretion or committed an error of law and therefore, it denied Plaintiff’s
request for review (Id.).
On January 11, 2018, Plaintiff filed this action for judicial review of Defendant’s
decision to garnish her SSI benefits due to an overpayment (Doc. 1). She alleges that she
did not receive due process and, consequently, the garnishment action is illegal (Id., at ¶
12). Plaintiff seeks review of the ALJ’s Order of Dismissal and the Appeals Council’s
decision to deny review. She asks this Court to reverse Defendant’s administrative
decision and “issue an Order compelling defendant to schedule a new administrative
hearing …” (Id., at ¶ 20). Plaintiff maintains that the Court has jurisdiction under 42 U.S.C.
§§ 405(g), 1383(c)(3), and 28 U.S.C. § 1361 to grant her relief (Id., ¶ 3).
The parties disagree about (1) whether this Court has jurisdiction; (2) whether
Plaintiff’s untimely request for reconsideration should be excused; and (3) whether
Defendant violated Plaintiff’s constitutional right to due process by garnishing her benefits

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before giving her an opportunity to be heard on the matter (Doc. 1 at ¶¶, 12-19; Doc. 15 at
4; Doc. 20).
Discussion

Subject Matter Jurisdiction
Federal district courts are courts of limited jurisdiction. Parties seeking to invoke
the Court’s jurisdiction must show that their claim legitimately comes within the Court’s
jurisdiction. Typically, a party seeking to establish subject matter jurisdiction must
demonstrate that a federal question predominates or that the matter in controversy: (1)
exceeds the sum or value of $75,000 exclusive of interest and costs; and (2) is between
citizens of different states. See 28 U.S.C. §§ 1331-1332. If the Court lacks subject matter
jurisdiction then the case should be dismissed. FED. R. CIV. P. 12(b)(1); 3 See Steel Co. v.
Citizens for a Better Env’t., 523 U.S. 83, 94 (1998).
The scope of the Court’s jurisdiction is even more limited in the Social Security
context. A person seeking Social Security benefits may file suit in the district court “only
after (1) the claimant has been party to a hearing held by the Secretary, and (2) the
Commissioner has made a final decision on the claim ... A claimant obtains the
Commissioner’s ‘final decision’ only after completing the four steps of the administrative
review process: (1) initial determination; (2) reconsideration determination, (3) hearing
before an ALJ; and (4) Appeals Council review.” Pizarro v. Comm’r of Soc. Sec., No.
6:12-cv-801-Orl-37DAB, 2013 WL 869389, at *3 (M.D. Fla. Jan. 24, 2013). Thus, the

Rule 12(b)(1) attacks are either “facial” or “factual.” Garcia v. Copenhaver, Bell & Assoc., M.D.'s
P.A., 104 F.3d 1256, 1260 (11th Cir.1997). “A ‘facial attack’ on the complaint ‘requires the court merely 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.’” McElmurray v. Consol. Gov't of Augusta–
Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir.2007) (citations and quotations omitted). “‘Factual attacks,’
on the other hand, challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.’” Id.
(citations and quotations omitted).
3

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district court may sit in appellate review of a final decision made by Defendant after an
administrative hearing has taken place. 42 U.S.C. § 405(g). Then, the scope of the district
court’s review is limited to determining whether the ALJ applied the correct legal
standards and whether the ALJ’s findings are supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). 4
Under the plain language of the statute, an ALJ’s dismissal of a claimant’s request
for a hearing is not a “final decision,” and is therefore not subject to judicial review. 42
U.S.C. § 405(g); Counts v. Comm’r. Soc. Sec., No. 6:09-cv-2157-ORL-22KRS, 2010 WL
5174498, at *4 (M.D. Fla. Dec. 15, 2010); cf. Cash v. Barnhart, 327 F. 3d 1252, 12551258 (11th Cir. 2003) (citing Califano v. Sanders, 430 U.S. 99, 107-09 (1977)). An
exception to this rule has been recognized when a plaintiff presents a constitutional
challenge to what occurred at the administrative level. Califano, 430 U.S. at 107-09.
Courts within this Circuit have construed § 405(g) more broadly to allow review of
certain types of decisions not made after a hearing. Counts, 2010 WL 5174498, at *4
(citing Mathews v. Eldridge, 424 U.S. 319, 328 (1976) (court determined that “the
requirement that the administrative remedies prescribed by the Commissioner be
exhausted” was waivable) and Bloodsworth v. Heckler, 703 F.2d 1233, 1237, 1239 (11th
Cir. 1983) (Eleventh Circuit held that, “[t]he dismissal of a request for Appeals Council
review if binding and not subject to further administrative review ... whether it is a
determination on the merits or a denial of request to review, is binding and final and
appeal [to the district court] therefrom is available to any party as a matter of statutory
right ...”)). Thus, Mathews, Bloodsworth, and their progeny sanction a district court’s
Defendant’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. §
405(g). Substantial evidence is “more than a scintilla but less than a preponderance. It is such relevant
evidence that a reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted).
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exercise of jurisdiction over certain final determinations by Defendant regardless of
whether they were made after a hearing. Counts extended the holdings of Mathews and
Bloodsworth and applied them to facts analogous to this case. 2010 WL 5174498, at *4.
In Counts, the district court concluded that an ALJ’s denial of a claimant’s hearing request
is a “final decision” subject to judicial review under 42 U.S.C. § 405(g). Id. The district
court reasoned that Defendant’s requirement that a final decision be preceded by a
hearing was “waivable.” Id., at *5 (“[T]he Supreme court recognized that the
Commissioner may waive the exhaustion requirement if he satisfies himself, at any stage
of the administrative process, that no further review is warranted either because the
internal needs of the agency are fulfilled or because the relief that is sought is beyond his
power to confer.”). The Counts decision concluded that:
Since neither the ALJ nor the Appeals Council chose to offer
Plaintiff a hearing on the issue of whether he received the
written notice within the sixty-five days after it was allegedly
mailed, this Court finds this jurisdictional prerequisite to have
been waived as the ALJ and Appeals Council must have been
satisfied that no further review was warranted when they
issued their decision without a hearing.
Id. at *5-6 (The question of whether Plaintiff was denied a hearing because her request
was untimely is a colorable constitutional claim subject to federal Court review). Referring
back to the holding in Bloodsworth, the Counts court quoted the legal paradox described
in Macheski 5:
Plaintiff “cannot seek further administrative review because he
has exhausted all of his administrative remedies, and yet
under the [Commissioner]’s argument he is foreclosed from
judicial review because he has not exhausted his
administrative remedies. Leaving Plaintiff ‘permanently in
limbo’ under these circumstances was rejected in
Bloodsworth.”

5

Macheski v., Leavitt, No. 4:06-cv-85 (CDL), 2007 WL 2710466 (M.D. Ga. Sept. 13, 2007).

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Id. (emphasis in original). In Bloodsworth the Circuit Court observed that this makes
“linguistic but not legal sense.” 703 F.2d at 1239.
Defendant argues that Bloodsworth “is neither binding [n]or persuasive here” and
should be disregarded because it represents the minority view among judicial circuits
(Doc. 15 at 11). Instead, Defendant invites the Court to apply the law as found in the First,
Third, Sixth, Ninth, and Tenth circuits (Id. at 11-12). Although the case upon which
Bloodsworth is based 6 has been repudiated, the Eleventh Circuit’s holding in
Bloodsworth has not been overturned. This Court recognizes that Bloodsworth is not
universally accepted and that the holding has been distinguished in almost every case
that cites to it. But, it remains binding precedent in this Circuit and the Court will not
disregard it to adopt the holdings of other circuit courts. See Macheski, 2007 WL
2710466.
Plaintiff does not deny that she actually and timely received the ALJ’s October 3,
2013 decision which included specific instructions for requesting a hearing. These facts
make this case distinguishable from Counts, which involved a plaintiff who never received
notice of the ALJ’s decision. However, this factor goes to whether or not the ALJ’s
decision was based on substantial evidence and does not alter the Court’s jurisdictional
analysis.
Based upon the Eleventh Circuit’s holding in Bloodsworth and the district court’s
decision in Counts, the Court finds that it has subject matter jurisdiction to “review the
ALJ’s decision dismissing the request for hearing as untimely and the Appeals Council’s
denial of the request for review.” Pizarro, 2013 WL 869389, at *6 (citing Counts and

6

Langford v. Flemming, 276 F.2d 215 (5th Cir. 1960).

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Bloodsworth); Wright v. Colvin, No 3:12-cv-1007-J-32TEM, 2013 U.S. Dist. LEXIS
146136, at *12-15 (M.D. Fla. May 3, 2013).

Mandamus Jurisdiction
Plaintiff seeks mandamus relief, pursuant to 28 U.S.C. § 1361 (Doc. 1 at ¶ 3). A
federal district court has original jurisdiction over actions brought under the Mandamus
Act “to compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” Counts, 2010 WL 5174498, at *10. “Mandamus is an
extraordinary remedy which should be utilized only in the clearest and most compelling of
cases.” Id. “To obtain mandamus relief, Plaintiff must show that (1) he has a clear right to
the relief requested; (2) the SSA has a clear duty to act; and (3) there are no other
adequate remedies available.” Giammarinaro, 2013 WL 12157304, at *3 (citing Cash,
327 F.3d at 1257). “A writ of mandamus ‘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.’” Counts, 2010 WL 5174498, at *10 (quoting Heckler, 466
U.S. at 616).
Section 405(h) provides that “[t]he findings and decisions of the Commissioner of
Social Security after a hearing shall be binding upon all individuals who were parties to
such hearing …” It is generally held that “the remedies provided by § 405 ‘are the
exclusive source of federal court jurisdiction over cases involving SSI.’” Weaver v. Soc.
Sec. Admin., No. 1:12-cv-4488-WSD, 2013 WL 6589897, at *3 (N.D. Ga. Dec. 16, 2013).
Still, there are cases in which parties have utilized the mandamus statute in an attempt to
compel Defendant to take some specific action. Giammarinaro v. Astrue, Case No. 8:12cv-2167-T-AJ, 2013 WL 12157304, at *3 (M.D. Fla. Feb. 5, 2013); Parker v. Astrue, No.
8:07-cv-436-T-MAP, 2008 WL 686935, at *3 (M.D. Fla. Mar. 12, 2008) (“Jurisdiction over

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cases arising under the Social Security Act exists under 42 U.S.C. § 405(g) and (h) and
the Mandamus Act, 28 U.S.C. § 1361.”).
Both, the Supreme Court and the Eleventh Circuit have repeatedly declined to
decide whether § 405(h) bars an action for mandamus. See Giammarinaro, 2013 WL
12157304, at *3 (citing Heckler v. Ringer, 466 U.S. 602, 616-17; Califano v. Yamasaki,
442 U.S. 682, 698 (1979); Matthews, 424 U.S. at 332 n. 12 (1976); Lifestar Ambulance
Serv., Inc. v. Dep’t of Health and Human Servs., 365 F.3d 1293, 1295 n.3 (11th Cir.
2004)). The Court does not reach this question because, even if it has jurisdiction, the
Court is unable to grant Plaintiff any relief under the Mandamus Act. Plaintiff’s request for
a hearing was made too late. She asks that her untimeliness be excused due to her
lawyer’s negligence. This issue requires a good cause determination. Consequently, the
Court is unable to find that the Commissioner owed Plaintiff “a clear duty to act” such that
the Court must compel her to perform.
Conclusion
It is ORDERED that the Commissioner’s Motion to Dismiss Plaintiff’s Complaint
(Doc. 15) is GRANTED to the extent it seeks dismissal of Plaintiff’s claim for mandamus
relief. The motion is DENIED in all other respects.
DONE and ORDERED in Orlando, Florida on July 23, 2018.

Copies to Counsel of Record

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