Rouzard v. Commissioner of Social Security

Filing 43

ORDER denying without prejudice 27 Amended Motion to Dismiss with Memorandum in Support. It is ORDERED that within thirty (30) days of the date of this Order, the parties are directed to supplement the record as set forth in this Order. With in fourteen (14) days after supplementation of the record, the Commissioner may renew his motion to dismiss, with appropriate citation to the evidence showing that subject matter jurisdiction is or is not proper in this Court. Plaintiff may file a response to the motion to dismiss within twenty-one (21) days after service. Signed by Magistrate Judge Leslie Hoffman Price on 8/29/2024. (MKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DIANSKY ROUZARD,
Plaintiff,
v.

Case No: 6:24-cv-585-CEM-LHP

COMMISSIONER OF SOCIAL
SECURITY,
Defendant

ORDER
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: AMENDED MOTION TO DISMISS WITH
MEMORANDUM IN SUPPORT (Doc. No. 27)
FILED:

July 8, 2024

THEREON it is ORDERED that the motion is DENIED without
prejudice.
Diansky Rouzard, on behalf of himself and his minor children (“Claimant”),
appearing pro se, instituted this action against Defendant the Commissioner of
Social Security (“the Commissioner”) by complaint filed on April 1, 2024. Doc. No.

1. On May 24, 2024, Claimant filed an amended complaint. Doc. No. 9. In the
amended complaint, Claimant purports to assert claims for “breach of contract,”
“breach of fiduciary duty,” “violation of Title XVI of the Social Security Act,”
“negligence,” and “violation of due process” based on the Commissioner’s alleged
delayed processing of one minor child’s application, improper overpayment
recoupment, and failure to timely adjudicate requests for reconsideration and
waiver. Doc. No. 9, at 3; Doc. No. 9-4 (filed under seal).
In response to the amended complaint, the Commissioner has filed a motion
to dismiss, arguing that Claimant has failed to exhaust his administrative remedies
or state claims that establish that the Court has subject matter jurisdiction in this
case. Doc. No. 27. In support, the Commissioner relies on the Declaration of Jay
Yu, Social Insurance Specialist, Center for Disability and Program Support, Social
Security Administration. Doc. No. 27-1. 1 Mr. Yu avers to the total overpayment

Subject matter can be challenged facially or factually. See Lawrence v. Dunbar, 919
F.2d 1525, 1528-29 (11th Cir. 1990). Because the Commissioner here relies on matters
outside of the pleadings, the Commissioner brings a factual attack, which “is an attack on
the ‘trial court's jurisdiction-its very power to hear the case,’ and the presumption of
truthfulness afforded a plaintiff’s allegations under Rule 12(b)(6) does not attach.” Parker
v. Astrue, No. 8:07-cv-436-T-MAP, 2007 WL 4365650, at *2 (M.D. Fla. Dec. 13, 2007) (citing
Lawrence, 919 F.2d at 1529).
1

Generally speaking, in social security cases, the administrative review process
includes receipt of an initial determination, 20 C.F.R. § 416.1402, reconsideration, 20 C.F.R.
§ 416.1407, a hearing before an Administrative Law Judge, 20 C.F.R. § 416.1429, and review
by the Appeals Council, 20 C.F.R. § 416.1467; see also 20 C.F.R. § 416.1400. Only after
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amounts outstanding, that minor M.R.’s Title XVI or SSI benefits ceased in March
2024 due to disability cessation, that minor A.R.’s Title XVI or SSI benefits ceased in
April 2021 due to disability cessation, that minor A.R. reapplied for SSI in February
2023 and is awaiting a decision, and that “the record indicates that no overpayment
waiver or appeal request was filed or is pending” with regard to the overpayment
amounts. Id. The Commissioner submits no supporting documents or exhibits to
this declaration.
Claimant opposes the motion to dismiss, arguing, among other things, that
he exhausted administrative remedies, and that Mr. Yu’s declaration is
demonstrably false regarding “no overpayment waiver or appeal request,” given
Claimant’s multiple efforts to resolve the overpayment issues with the Social
Security Administration (“SSA”).

Doc. No. 31.

Claimant submits a host of

documents to support his arguments, to include letters sent to the SSA, formal
complaints, requests for correction, requests for reconsideration regarding SSI
benefits and overpayment, statements of Claimant, requests for continuation of
benefits, notices of inquiry, supplemental filings, award letters issued by the SSA,

exhaustion of these processes may a claimant seek judicial review.
422.210(a); see also 20 C.F.R. § 416.1481.

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See 20 C.F.R. §

and a Freedom of Information Act request and responses. Doc. Nos. 31-1 through
31-18.
The Commissioner thereafter filed an authorized reply brief. Doc. No. 41. 2
The Commissioner says that Mr. Yu reexamined agency records, and that Mr. Yu
has now supplemented his declaration in support of the argument that Claimant
has not exhausted administrative remedies. Id. at 1–2; Doc. No. 41-1. According to
the Supplemental Declaration, with respect to Claimant “two prior waiver requests
were made and decisions were rendered with a portion being denied and a portion
being waived,” “a reconsideration was requested in December 2021 on a living
arrangement issue and in July 2023 on an income issue” and “[a] dismissal decision
on living arrangement was rendered in December 2021 and an unfavorable decision
on the income issue was rendered on July 2023,” and that the record does not reflect
that any hearing before an administrative law judge (“ALJ”) is pending. Doc. No.
41-1. The Commissioner again submits no supporting documents or exhibits to this
declaration. 3

Claimant’s objection to the undersigned’s Order authorizing the reply brief
remains pending upon issuance of this Order. Doc. No. 40.
2

Claimant has also filed an unauthorized response to the Commissioner’s reply, in
which Claimant again challenges the assertion that administrative remedies have not been
exhausted, and reasserts constitutional and due process arguments. Doc. No. 42. The
Court has considered this response in this one instance, but again reminds Plaintiff that
even pro se parties must adhere to all applicable Federal Rules of Civil Procedure and Local
3

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Upon consideration, given the conflicts between representations by the
Commissioner and Claimant, and the lack of documentation in support of the
declaration submitted by the Commissioner, the Court finds that the prudent course
in resolving this motion to dismiss is to require supplementation to the record
before addressing the issue of exhaustion of administrative remedies and the factual
attack on the Court’s subject matter jurisdiction in this case. Cf. Parker v. Astrue,
No. 8:07-cv-436-T-MAP, 2007 WL 4365650, at *3 (M.D. Fla. Dec. 13, 2007) (requiring
supplementation to the record to resolve motion to dismiss for lack of subject matter
jurisdiction where “Defendant posits that the SSA did in fact render an initial
determination

from

which

Plaintiff

could

and

should

have

requested

reconsideration pursuant to 20 C.F.R. § 404.905, but from the pleadings filed to date,
it is unclear what transpired between the parties prior to Plaintiff filing this
lawsuit.”). 4

Rules. Future unauthorized filings, or those that fail to comply with applicable rules will
be summarily denied and/or stricken.
The Court also notes that Claimant’s amended complaint references due process
violations and violations of constitutional guarantees. Doc. Nos. 9, 9-4. “[A] reviewing
court may find a waiver of the exhaustion requirement if a constitutional claim is wholly
collateral to the substantive claim of entitlement, and there is a showing of irreparable
injury not recompensable through retroactive payments.” Dunnells v. Comm’r of Soc. Sec.,
No. 5:12-cv-484-Oc-18PRL, 2013 WL 1909590, at *2 (M.D. Fla. Apr. 22, 2013), report and
recommendation approved, 2013 WL 1909605 (M.D. Fla. May 8, 2013) (citing Mathews v.
Eldridge, 424 U.S. 319, 330–31 & n.11 (1976)). Given the rulings made herein, the Court does
not further address this issue at this time.
4

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Accordingly, the Commissioner’s Amended Motion to Dismiss (Doc. No. 27)
is DENIED without prejudice. It is ORDERED that within thirty (30) days of the
date of this Order, the parties are directed to file copies of any and all
correspondence or notices sent by the Social Security Administration to Claimant
or to the Social Security Administration from Claimant regarding Claimant and
Claimant’s minor children’s application(s) for benefits, overpayment recoupment
related thereto, or any other evidence showing that subject matter jurisdiction is or
is not proper in this Court. See Parker, 2007 WL 4365650, at *3. The Commissioner
shall also serve hard copies of any submitted records on Plaintiff. Within fourteen
(14) days after supplementation of the record, the Commissioner may renew his
motion to dismiss, with appropriate citation to the evidence showing that subject
matter jurisdiction is or is not proper in this Court. Plaintiff may file a response to
the motion to dismiss within twenty-one (21) days after service. Local Rule 3.01(c).
DONE and ORDERED in Orlando, Florida on August 29, 2024.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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