Spagnolo v. Astrue

Filing 38

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS re: 19 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/30/2013. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on May 1, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NICK SPAGNOLO,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social
)
Security,
)
)
)
Defendant.
_____________________________ )

CIVIL NO. 12-00563 LEK-BMK

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Before the Court is a Defendant Michael J. Astrue,
Commissioner of Social Security’s (“Defendant”) Motion to
Dismiss, filed on February 1, 2013 (“Defendant’s Motion”).
Plaintiff pro se Nick Spagnolo (“Plaintiff”) filed his opposition
on February 7, 2013, and filed an additional document entitled
“Motion” on February 14, 2013 (“Plaintiff’s Motion”), which
appears to respond to Defendant’s Motion, but also appears to
request judgment on the pleadings and an order to show cause.
Defendant filed his reply on April 8, 2013.

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Defendant’s
Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND
On October 19, 2012, Plaintiff filed a document
entitled “Motion for Mandamus vs. The United States Social
Security Administration Commissioner - Michael J. Astrue; Notice
to: 10-17-12; U.S. Attorney,” which the Court liberally construes
as a Complaint.

Plaintiff seeks mandamus relief, alleging that

the Social Security Administration (“SSA”) withheld $3,922.68 in
Supplemental Security Income (“SSI”) payments under Title XVI of
the Social Security Act; improperly collected an overpayment of
$324.89; and failed to pay his May 2011 SSI payment.
The Complaint states that Plaintiff has requested
review multiple time of missing retroactive benefits, and sought
reconsideration of any denials.

Plaintiff alleges that Defendant

did not “review” as required by the Social Security Act and “CFR
20, 404.902(j).”

He claims that he was denied “review” in

district court, and that the Court must “either review or
remand.”
I.

[Complaint at ¶¶ 4-8.]

Defendant’s Motion
Defendant states that the instant case is Plaintiff’s

fourth civil action against the SSA seeking relief based on the
same alleged payment miscalculation and missing benefits.

[Mem.

in Supp. of Defendant’s Mot. at 2 (citing Notice of Related Cases
[dkt. no. 9]).]

Defendant asks the Court to dismiss the

Complaint because Plaintiff fails to allege that he has exhausted
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his administrative remedies, and because the claims are barred by
res judicata.
A.

[Id.]

Previous Cases
Plaintiff filed his first complaint in Civil No.

11-00353 DAE-RLP, alleging “mis-handling of benefits,” as well as
an “underpayment mis-calculation,” and alleging that the
agency refused to “proceed within government guidelines,” and
refused to assist in processing certain documents.
Complaint in Civ. No. 11-00353 DAE-RLP).]

[Id. (quoting

On September 21, 2011,

the district court adopted in part and modified in part the
Magistrate Judge’s Findings and Recommendation, concluding that
Plaintiff had not demonstrated that he had exhausted
administrative remedies, and dismissing with leave to amend.
[Id. at 3 (citing Order in Civ. No. 11-00353 DAE-RLP [dkt. no
34,] filed 9/21/11).]

Plaintiff then filed a request for a writ

of mandamus, and, on February 13, 2012, the district court
adopted the Magistrate Judge’s Findings and Recommendations that
the writ be denied.

[Id. (citing Order in Civ. No. 11-00353

DAE-RLP [dkt. no. 54,] filed 2/13/12).]
On June 1, 2012, Plaintiff filed a second complaint
against the SSA in Civil No. 12-314 SOM-KSC.

Plaintiff alleged

in that action that the SSA: (1) underpaid him by $3,922.68,
(2) improperly assessed an overpayment of $324.89 from August
2011 to December 2011, and (3) improperly removed $674 in monthly

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benefits from his Direct Xpress account.

On June 13,

2012, the district court found that “this case involves the same
claims asserted in Spagnolo’s original case, Civ. No. 11-00353”
and ordered Plaintiff to show cause as to why the Complaint
should not be dismissed on res judicata grounds.

[Id. at 4

(quoting Order in Civ. No. 12-314 SOM-KSC [dkt. no. 6,] filed
6/13/12).]

On October 5, 2012, Plaintiff filed a pleading

captioned “Notice of Dismissal Without Prejudice”.

[Id. (citing

Civ. No. 12-314 SOM-KSC [dkt. no. 23]).]
According to Defendant, Plaintiff then filed two more
actions against the SSA in October 2012.

On October 19, 2012,

Plaintiff filed the instant action seeking mandamus relief under
28 U.S.C. § 1361, but raising the same claims as in his
previously dismissed actions.

In addition, on October 26, 2012,

Plaintiff filed a Complaint in Civil No. 12-00579 JMS-KSC,
alleging “Violations of the Social Security Act,”
“Violations of Civil Rights,” and seeking an injunction.

The

district court dismissed that action on November 5, 2012, but
declined to expressly find that Plaintiff’s claims were barred by
res judicata, and noted that the action was seeking “judicial
review of the same failures by [Defendant] to review his
requests.”

[Id. (citing Civ. No. 12-00579 JMS-KSC [dkt. no.

4]).]

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B.

Mandamus Jurisdiction
Defendant first argues that Plaintiff is not entitled

to mandamus relief, and asks the Court to dismiss the case
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction.

Defendant argues that mandamus

relief is possible only where a plaintiff has exhausted all other
avenues of relief and only if the defendant owes plaintiff a
nondiscretionary duty.

Defendant contends that Plaintiff cannot

use the mandamus statute to circumvent the proper channeling of
complaints through the SSA and the courts.

Defendant argues that

no exception is present here because no official had a duty to
adjudicate Plaintiff’s claims absent any attempt to exhaust them
under the agency’s regulations.

Defendant states that 20 C.F.R.

§§ 416.1400 and 416.1467 preclude judicial review of Plaintiff’s
claims regarding the alleged overpayment and benefit
miscalculation unless Plaintiff has requested Appeals Council
review, and the Appeals Council denies review.
C.

[Id. at 5-6.]

Res Judicata
Defendant also seeks dismissal pursuant to Rule

12(b)(6) because Plaintiff’s claims are barred by res judicata.
Defendant argues that all of Plaintiff’s claims for mandamus
relief are barred by res judicata because he raised identical
claims in his June 2, 2011 Complaint and supplemental pleadings
(“First Case”), and the court’s January 11, 2012 Order dismissing
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that action with prejudice constitutes a final judgment on the
merits.

Defendant argues that both the First Case and this case

arise out of the same transactional nucleus of facts.

[Id. at

8.]
Defendant asks the Court to dismiss without leave to
amend.

He argues that any attempt to amend would be futile

because Plaintiff’s claims are barred by res judicata, and would
cause Defendant to defend another unnecessary action.

[Id. at

10-11.]
II.

Plaintiff’s Opposition
Plaintiff’s opposition argues that the SSA did not

perform a proper review of his requests for payment, and that
previous court decisions involving his prior complaints denied
him due process.

Although difficult to decipher, it appears that

Plaintiff argues that his claims are not barred by res judicata
because “[n]o party to a complaint MUST ANSWER THE EXACT SAME
ORDER TWO TIMES.”

[Mem. in Opp. at “I” (emphasis in original).]

He also argues that the legal concept of res judicata “is vague
and subject to interpretation.”

[Id. at 3.]

Plaintiff emphasizes that mandamus should lie in this
action because of the failure of the SSA to review his requests,
and because all references to a “complaint of 2012 are based upon
a ‘subsequent application’.”

[Id. at 1.]

He also argues that

the SSA and the Court “many not ‘SKIP’ CFR 20, 404.902(j) and

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proceed to demand ‘exhaustion[’].”

[Id. at 3.]

III. Plaintiff’s “Motion”
Plaintiff appears to argue that he is entitled to
judgment on the pleadings because of the Defendant’s failure to
answer, and because Defendant’s res judicata and exhaustion
arguments are “moot”.

[Plaintiff’s Mot. at 1.]

He contends that

the “only actual question before the court is the correct
application of the Social Security Act.”

[Id. at 2 (emphasis

omitted).]
I.

Defendant’s Reply
In his reply, Defendant states that Plaintiff’s filings

fail to present evidence or otherwise carry his jurisdictional
burden of proving that he has exhausted his claims for relief.
To the extent Plaintiff argues that the current action is viable
because this district court wrongly dismissed his previous
actions, Defendant argues that Plaintiff is attempting to
relitigate the same subject matter and that the current claim is
barred by res judicata.

[Reply at 2-3.]
STANDARD

In ruling on a motion to dismiss, the Court must
construe a pro se complaint liberally, accept all allegations of
material fact as true, and construe those facts in the light most
favorable to the plaintiff.

Resnick v. Hayes, 213 F.3d 443, 447

(9th Cir. 2000).

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Federal Rule of Civil Procedure 12(b)(1) authorizes a
court to dismiss claims over which it lacks proper subject matter
jurisdiction.
Federal Rule of Civil Procedure 12(b)(6) permits a
motion to dismiss a claim for failure to state a claim upon which
relief can be granted.

“To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th
Cir. 2008).

This tenet – that the court must accept as true all

of the allegations contained in the complaint – “is inapplicable
to legal conclusions.”

Iqbal, 556 U.S. at 678.

Accordingly,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citing Twombly, 550 U.S. at 555).

Id.

Rather, “[a] claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id. (citing

Twombly, 550 U.S. at 556).
DISCUSSION
I.

Subject Matter Jurisdiction
Under 28 U.S.C. § 1361, district courts have “original

jurisdiction of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to
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perform a duty owed to the plaintiff.”

Mandamus relief is

possible only where a plaintiff “has exhausted all other avenues
of relief and only if the defendant owes [plaintiff] a clear
nondiscretionary duty.”

Heckler v. Ringer, 466 U.S. 602, 616

(1982); see also Shalala v. Illinois Council on Long Term Care,
Inc., 529 U.S. 1, 10, 13-14 (2000) (mandamus statute cannot be
applied to short-circuit the administrative exhaustion
requirement set forth under the Social Security Act).
Section 405(g) of the Social Security Act is the sole
basis upon which the government has waived sovereign immunity for
consideration of claims arising under the Social Security Act.
42 U.S.C. § 405(g).

The mandamus statute does not by itself

waive sovereign immunity.

See Hou Hawaiians v. Cayetano, 183

F.3d 945, 947 (9th Cir. 1999); Washington Legal Found. v. U.S.
Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996).

An

exception to this rule exists where a plaintiff seeks to force a
public official to perform a ministerial duty imposed upon him in
his official capacity.

Washington Legal Found., 89 F.3d at 901.

Plaintiff has not established that the exception applies here.
Here, SSA regulations preclude judicial review of
Plaintiff’s claims regarding the alleged overpayment and benefit
miscalculation until Plaintiff has requested Appeals
Council review, and the Appeals Council denies review.

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See 20

C.F.R. §§ 416.1400,1 416.1467.

Plaintiff is not entitled to

mandamus relief because he has not alleged or established that he
exhausted the SSA’s administrative review process.
II.

Res Judicata
Res judicata bars litigation in a subsequent action of

any claims that were raised or could have been raised in the
prior action.

Western Radio Servs. Co. v. Glickman, 123 F.3d

1189, 1192 (9th Cir. 1997).

The doctrine is applicable if there

is: (1) identity or privity between the parties; (2) an identity
of claims; and (3) a final judgment on the merits.

Id.

“The

central criterion in determining whether there is an identity of
claims between the first and second adjudications is whether the
two suits arise out of the same transactional nucleus of facts.”
Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000)
(internal citations and quotations omitted).

“Res judicata or

claim preclusion bars a subsequent action not only as to every
matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which
might have been offered for that purpose.”

1

Valencia-Alvarez v.

Under 20 C.F.R. § 416.1400:
When you have completed the steps of the
administrative review process listed in paragraphs
(a)(1) through (a)(4) of this section, we will
have made our final decision. If you are
dissatisfied with our final decision, you may
request judicial review by filing an action in a
Federal district court.
10

Gonzales, 469 F.3d 1319, 1323 n.6 (9th Cir. 2006) (citations and
quotation marks omitted).
In the present case, Plaintiff asserts claims that were
raised or could have been raised in the previous action.

These

claims all concern Plaintiff’s Social Security benefits and arise
out of the “same transactional nucleus of facts.”

Plaintiff’s

actions in Civil Nos. 11-00343 DAE-RLP and 12-00314 SOM-KSC,2 are
nearly identical to the instant case.

The earlier cases include

allegations regarding the missing benefits for May 2011, the
alleged underpayment of $3,922.68, and the alleged overpayment of
$324.89.

In fact, Plaintiff appears to concede that the same

facts are at issue in the instant case because he frames this
case as an “appeal” of the First Case and seeks review of the
January 11, 2012 dismissal order.

The Court finds that the

instant case is barred by the final decision on the merits in the
First Case, Civil No. 11-00343 DAE-RLP.
As noted, Plaintiff is appearing pro se and the Court
liberally construes his pleadings.
1132, 1137 (9th Cir. 1987).

Eldridge v. Block, 832 F.2d

Even with this liberal construction,

the Court cannot grant Plaintiff any of the relief he seeks in
his Complaint.

The Court acknowledges Plaintiff’s frustration

2

Plaintiff also has filed complaints in this court against
some of the judges involved in those cases. See, e.g., Spagnolo
v. Mollway, Civ. No. 12-00357 RSWL-BMK; Spagnolo v. Ezra, Civ.
No. 12-00262 RLH-BMK.
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with the dismissal of his previous cases and at not having his
requests for payments reviewed by either the SSA or this Court.
As set forth above, however, as well as in the previous orders,
the jurisdiction of this Court is limited and the Court cannot
grant the relief that Plaintiff seeks.

The Motion is HEREBY

GRANTED and the Complaint is dismissed with prejudice.

To the

extent Plaintiff seeks judgment on the pleadings, Plaintiff’s
Motion is HEREBY DENIED for the same reasons.
CONCLUSION
On the basis of the foregoing, Defendant Michael J.
Astrue, Commissioner of Social Security’s Motion to Dismiss,
filed on February 1, 2013, is hereby GRANTED and the Complaint is
dismissed with prejudice.

The Clerk’s Office is directed to

terminate this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 30, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

NICK SPAGNOLO V. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
SECURITY; CIVIL 12-00563 LEK-BMK; ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

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