Everett v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 18 MOTION to Dismiss filed by Commissioner of Social Security. Signed by Magistrate Judge Stephanie A Gallagher on 4/6/2016. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BETTY J. EVERETT,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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Civil Case No. ELH-15-3790

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REPORT AND RECOMMENDATION
Plaintiff Betty J. Everett filed this action pro se. [ECF No. 1]. The Social Security
Administration (“SSA”) has filed a motion to dismiss for lack of subject matter jurisdiction
(“motion”) pursuant to Fed. R. Civ. P. 12(b)(1), on the grounds that Ms. Everett failed to exhaust
her administrative remedies prior to filing her complaint. [ECF No. 18]. Pursuant to Standing
Order 2014-01, this case has been referred to me for Report and Recommendations on the
dispositive motion. Plaintiff has not filed an opposition to the motion.1

No hearing is deemed

necessary. See Local R. 105.6 (D. Md. 2014). For the reasons stated below, I recommend that
the SSA’s motion to dismiss be denied.
I.

Facts
The precise facts underlying Ms. Everett’s claim are somewhat unclear. Her complaint

form contains no case number or information about her underlying administrative proceedings.
[ECF No. 1].

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A cover letter attached to her complaint suggests that her “entire [S]ocial

On March 14, 2016, the Clerk’s Office mailed a Rule 12/56 letter to Ms. Everett. [ECF No. 19]. That
letter advised Ms. Everett that a failure to oppose the Commissioner’s motion could result in dismissal of
her case. Id.

[S]ecurity account” was “fraudulently changed” and that her benefit checks were stopped. [ECF
No. 1-2]. In a later filing, Ms. Everett submitted documentation showing (1) that she has been
receiving Social Security Benefits, (2) that Social Security alleges that Ms. Everett has a
significant overpayment, totaling $134,476.00 at the time of the paperwork, “due to fraudulently
receiving disability benefits” and “working full time . . . while receiving disability,” and (3) that
it appears that Social Security has been garnishing Ms. Everett’s benefit payments, and possibly
some of her other entitlements, to recover the overpayment. [ECF No. 8-2, 8-3, 8-6].
The documentation contains handwritten notes from Ms. Everett suggesting that someone
named “Alvin Gonzalez” has interfered with her receipt of benefits and has hacked all of her
bank accounts. See, e.g., [ECF No. 8-3, 8-5]. It appears that she alleges that Mr. Gonzalez was
an employee at the SSA. [ECF No. 8-5]. Ms. Everett further alleges that Mr. Gonzalez and
another individual, “O.G. Agent Petro,” prevented her from filing appeals to the SSA between
2011 and 2014. [ECF No. 8-5]. Ms. Everett filed the instant lawsuit on December 11, 2015.
[ECF No. 1].
II.

Standard of Review
Motions to dismiss for lack of subject matter jurisdiction are governed by Fed. R. Civ. P.

12(b)(1). While the plaintiff bears the burden of proving that the court has jurisdiction over the
claim or controversy at issue, a 12(b)(1) motion should only be granted if the “material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of
law.” Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010); see
also Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
In a motion to dismiss for lack of subject matter jurisdiction, the pleadings should be regarded as
“mere evidence on the issue,” and courts may “consider evidence outside the pleadings without

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converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647.

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pleadings of pro se litigants, such as Ms. Everett, are liberally construed. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
III.

Discussion
The SSA argues that this Court does not have jurisdiction over Ms. Everett’s claim

because she failed to exhaust administrative remedies and is not appealing from a final order of
the Commissioner. Under Social Security Act sections 205(g) and (h), an individual may only
obtain judicial review of the Commissioner’s “final” decision after she has exhausted all
administrative remedies. 42 U.S.C. §§ 405(g)-(h). Because there is no formula for determining
whether a decision is final, the meaning of that term is left to federal and state agencies to define
by regulation. Weinberger v. Salfi, 422 U.S. 749, 766 (1975). Section 405(g) of the Social
Security Act provides that “any individual, after any final decision of the Commissioner made
after a hearing to which he was a party . . . may obtain a review of such decision by a civil
action. . . .” 42 U.S.C. § 405(g).
To support her jurisdictional argument, the Commissioner provided a declaration from
Kathie Hartt, the Chief of Court Case Preparation and Review Branch 2 of the Office of
Appellate Operations, Office of Disability Adjudication and Review. [ECF No. 18-2]. Ms.
Hartt’s declaration notes that the Commissioner issued a Fully Favorable decision to Ms. Everett
in 2003, and that Ms. Everett has never requested review of that decision by the Appeals
Council. Id.
Ms. Hartt’s declaration, however, is silent as to the crux of Ms. Everett’s complaints.
Ms. Everett does not contest the 2003 decision to award her benefits. Although the precise
nature of her allegations is murky, it is clear that she disputes the overpayment and the

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withholding/garnishing of her benefits as a result of the overpayment. One of the documents
attached to Ms. Everett’s filing is a printout from the “mySocialSecurity” website indicating in
the “Status” section that, “A waiver or appeal is associated with part or all of this overpayment.”
[ECF No. 8-5] at 1. Ms. Hartt’s declaration makes no reference to the overpayment, to the
waiver or appeal referenced in the “mySocialSecurity” printout, or to any attempts on behalf of
Ms. Everett to challenge the overpayment. Moreover, if Ms. Everett’s allegations that a Social
Security employee took actions to “block” her appeals proved true, she might have an argument
that her apparent failure to exhaust her administrative remedies should be waived or excused.
See Mathews v. Eldridge, 424 U.S. 319, 330 (1976) (acknowledging circumstances in which a
court can determine that the exhaustion requirement is waived).
Ultimately, on the very limited record presented, and construing Ms. Everett’s filings
liberally, I cannot find that “material jurisdictional facts are not in dispute.” Accordingly, I
recommend that the Commissioner’s motion to dismiss [ECF No. 18] be denied. I direct the
Clerk to mail a copy of this Report and Recommendations to Plaintiff at the address listed on the
docket. Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b) and Local Rule 301.5.b.

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NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: April 6, 2016

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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