Glass v. Colvin
REPORT AND RECOMMENDATIONS re 46 MOTION for Other Relief EX PARTE APPLICATION TO REFER AUSA FOR CRIMINAL & ETHICAL INVESTIGATIONS filed by Leigh Glass, 34 MOTION to Change Venue filed by Carolyn W. Colvin, 45 MOTION for Sanctions based on new facts, Motion to Sanction AUSAs and DEFENDANTS filed by Leigh Glass. Signed by Magistrate Judge Stephanie A Gallagher on 2/8/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Case No. WMN-16-1357
COMMISSIONER, SOCIAL SECURITY *
REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-captioned case has been referred
to me to review the parties’ dispositive motions and to make recommendations pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). Plaintiff Leigh Glass filed this
action pro se. [ECF No. 1]. On December 15, 2016, I issued a Report and
Recommendations (“original Report and Recommendations”) recommending, in relevant
part, that the then-Acting Commissioner’s Motion to Dismiss for lack of subject matter
jurisdiction be denied.1 [ECF No. 32]. Thereafter, in lieu of filing objections to the
original Report and Recommendations, the Commissioner filed another Motion to
Dismiss or, in the alternative, Motion to Transfer Venue. [ECF No. 34]. Ms. Glass has
filed an Opposition to the Commissioner’s Motion to Transfer Venue with an
accompanying Memorandum, [ECF Nos. 40, 41], and has also filed another Motion for
During the pendency of this litigation, the previous Acting Commissioner, Carolyn Colvin, has been
replaced with a new Acting Commissioner, Nancy A. Berryhill. For ease of reference, this Report and
Recommendations will simply refer to “the Commissioner.”
Sanctions, [ECF No. 45], and an Ex Parte Application to Refer AUSA for Criminal &
Ethical Investigations, [ECF No. 46]. The Commissioner has filed a reply to Plaintiff’s
Opposition to the Motion to Transfer Venue, [ECF No. 44], but has not yet responded to
Plaintiff’s most recent motions. For the reasons set forth below, I rescind my original
Report and Recommendations [ECF No. 32]. I further recommend that the Court DENY
Plaintiff’s motions, and DENY the Commissioner’s Motion to Transfer Venue, but
GRANT the Commissioner’s alternative Motion to Dismiss for lack of subject matter
A lengthy procedural history is set forth in my original Report and
Recommendations. [ECF No. 32]. Relevant to this motion, Plaintiff, who appears pro se,
filed this Social Security action against the Commissioner on May 6, 2016, listing her
county of residence as “Sacramento, CA.” [ECF No. 1-1].
On August 12, 2016, the
Commissioner filed a Motion to Dismiss for Failure to State a Claim, citing a lack of
subject matter jurisdiction. [ECF No. 10]. That motion did not allege improper venue.
Id. After extensive additional filings, on December 15, 2016, I issued a Report and
Recommendations in which I recommended that the Motion to Dismiss be denied,
because I liberally construed Ms. Glass’s complaint to assert jurisdiction under 42 U.S.C.
§ 405(g). [ECF No. 32]. Thereafter, the Commissioner filed a Motion to Transfer
Venue, suggesting that proper venue for Ms. Glass’s complaint lies in California. [ECF
No. 34]. In the alternative, the Commissioner renewed the Motion to Dismiss for lack of
subject matter jurisdiction. Id.
Beginning with venue, the Commissioner appears to be correct that appropriate
venue for Ms. Glass’s Social Security appeal lies in California. See, 42 U.S.C. § 405(g)
(“Such action shall be brought in the district court of the United States for the judicial
district in which the plaintiff resides, or has a principal place of business, or, if he does
not reside or have his principal place of business within any such district, in the United
States District Court for the District of Columbia.”). Ms. Glass does not assert that she
lives or works (or has ever lived or worked) in the District of Maryland. However, while
the Commissioner would have prevailed had that defense been raised timely, improper
venue is a defense that is subject to waiver.
See Fed. R. Civ. Proc. 12(h)(1)(A).
Specifically, a party waives improper venue by omitting it from a previously filed motion
to dismiss. See Fed. R. Civ. Proc. 12(g)(2) (“A party that makes a motion under this rule
must not make another motion under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion.”).
Here, then, if the
Commissioner believed venue to be improper, the Commissioner should have included
that argument in her original Motion to Dismiss.
[ECF No. 10].
Commissioner did not, the improper venue argument under Federal Rule of Civil
Procedure 12 is waived.
Even after waiver of a challenge to improper venue, litigants can make a motion
to transfer venue, at the court’s discretion, under 28 U.S.C. § 1404(a). In considering
such a change of venue, the Court evaluates, “(1) the weight accorded the plaintiff’s
choice of venue, (2) witness convenience and access, (3) convenience of the parties, and
(4) the interest of justice.” Davis Media Group, Inc. v. Best Western Int’l, Inc., 302 F.
Supp. 2d 464, 470 (D. Md. 2004) (internal citations omitted). The burden is on the party
seeking transfer to establish that it is proper. See Lynch v. Vanderhoef Builders, 237 F.
Supp. 2d 615, 617 (D. Md. 2002). Here, Ms. Glass’s choice of forum is Maryland,
although the weight accorded that choice is lessened “when none of the conduct
complained of occurred in the forum selected by the plaintiff[.]” Id. Although the
Commissioner cites to the other factors such as “convenience of the witnesses and
parties,” the Commissioner has not identified any witnesses, other than Ms. Glass, who
are located in California. As noted above, Ms. Glass opposes the transfer of venue.
Thus, the Commissioner has not met her burden with regard to the convenience factors.
Finally, permitting a party to request a transfer of venue immediately after receiving an
adverse Report and Recommendations condones forum-shopping and is not in the interest
of justice. Accordingly, I recommend that the Commissioner’s Motion to Transfer Venue
However, Ms. Glass’s opposition to the venue motion requires me to rescind my
original Report and Recommendations. In that filing, I adhered to my responsibility to
liberally construe the pleadings of pro se litigants. I therefore found that Ms. Glass had
alleged jurisdiction under 42 U.S.C. § 405(g), in addition to having alleged jurisdiction
under multiple other statutes that did not provide an adequate jurisdictional basis. [ECF
No. 32 at 5-8].
However, in her most recent opposition, Ms. Glass repeatedly
emphasized that her pleadings should not be construed to make that jurisdictional
argument. See [ECF No. 41 at 1] (“PLAINTIFF DOES NOT BRINGS (sic) THIS
SUIT UNDER § 405(g)”) (emphasis in original); id. (“Plaintiff is NOT consenting to
this Court arbitrarily changing her causes of action.”) (emphasis in original); id. at 2
(“Furthermore, Plaintiff has reiterated REPEATEDLY that this case has nothing to do
with 42 U.S.C. § 405(g).”) (emphasis in original); id. (“Plaintiff’s arguments have been
consistent from day one (1:) that this lawsuit is NOT under 42 U.S.C. § 405(g).”)
(emphasis in original); id. at 3 (“Irrespective of this, it is irrelevant, because this lawsuit
is not brought under 405(g).”).
I cannot continue to liberally construe Ms. Glass’s
Complaint to make an argument that she has now so emphatically disavowed.
Accordingly, I rescind my original Report and Recommendations.
In her recent filing, Ms. Glass again suggests that the jurisdictional basis for her
claim is federal question jurisdiction under 28 U.S.C. §1331, combined with a waiver of
sovereign immunity pursuant to 5 U.S.C. § 702. Id. at 1-2. However, the Social Security
Act contains an exclusive remedy provision that expressly bars claimants from bringing
actions relating to Social Security claims under 28 U.S.C. § 1331. See 42 U.S.C. 405(g)
(“No action against the United States, the Commissioner of Social Security, or any
officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to
recover on any claim arising under this subchapter.”). Although Ms. Glass couches her
complaint as one seeking only “declaratory judgment” and “mandatory injunction,” [ECF
No. 1], which arguably could constitute non-monetary relief under 5 U.S.C. § 702, the
declarations Ms. Glass seeks expressly pertain to adjudication of her Social Security
claim, including a declaration that her “application was timely and properly filed in
2014,” and a declaration that backpay should date back to her 2014 application date.
[ECF No. 1 at 7]. Thus, despite Ms. Glass’s efforts to disclaim 42 U.S.C. § 405(g), her
claim expressly arises under that subchapter of the Social Security Act and cannot be
brought under 28 U.S.C. § 1331. With no viable basis for subject matter jurisdiction
other than the one Ms. Glass has repeatedly rejected, her complaint must be dismissed.
Ms. Glass has also filed another Motion for Sanctions and an Ex Parte
Application to Refer AUSA for Criminal & Ethical Investigations.2 [ECF Nos. 45, 46].
While Ms. Glass alleges that the Commissioner’s position in this litigation has been
frivolous, and that fraudulent documents have been submitted to the Court, in light of the
lack of subject matter jurisdiction, this Court is unable to delve into those allegations or
order discovery relating to such fact-specific evidentiary matters.
disciplinary decisions this Court makes about any attorney’s conduct in any matter are
confidential and are not made based on an application from opposing counsel. Thus, I
recommend that Ms. Glass’s Motion for Sanctions and her Ex Parte Application to Refer
AUSA for Criminal & Ethical Investigations be denied.
For the reasons set forth above, I rescind my Report and Recommendations [ECF
No. 32] and respectfully recommend that:
1. the Court DENY Defendant’s Motion for Transfer of Venue [ECF No. 34],
but GRANT Defendant’s alternative Motion to Dismiss the Case Without
Prejudice [ECF No. 34];
2. the Court DENY Plaintiff’s Motion for Sanctions [ECF No. 45];
3. the Court DENY Plaintiff’s Ex Parte Application to Refer AUSA for Criminal
and Ethical Investigations, [ECF No. 46], and
Although titled an “ex parte application,” the documentation reflects that the application was served on
the AUSA in question and filed on the docket. [ECF No. 46]. Accordingly, it is addressed herein as a
4. the Clerk be directed to CLOSE this case.
Any objections to this Report and Recommendations must be served and filed
within fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local
A. 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: February 8, 2017
Stephanie A. Gallagher
United States Magistrate Judge
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