Taccino v. Commissioner, Social Security
REPORT AND RECOMMENDATIONS re 11 MOTION to Dismiss filed by Commissioner, Social Security, 13 MOTION to Strike filed by William Anthony Taccino, 16 MOTION for Permanent Injunction MOTION for Default Judgment filed by William Anthony Taccino. Signed by Magistrate Judge Stephanie A Gallagher on 2/27/2017. (c/m 2/27/17 cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM ANTHONY TACCINO
Civil Case No. JFM-16-2775
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 William Anthony Taccino filed this action
pro se. [ECF No. 1]. Defendant Nancy Berryhill, Acting Commissioner, Social Security
Administration (“the Commissioner”), has filed a Motion to Dismiss for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), on the grounds that Plaintiff failed to timely
appeal the final judgment of the Commissioner. [ECF No. 11]. Plaintiff has filed an opposition
to the Commissioner’s Motion to Dismiss, a Motion to Strike the Commissioner’s Motion to
Dismiss, a Motion for Emergency Injunction, and two Motions for Default Judgment. [ECF
Nos. 13, 16]. The Commissioner did not file responses to Plaintiff’s motions. No hearing is
necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, I recommend
that the Court GRANT the Commissioner’s Motion to Dismiss and DENY Plaintiff’s Motions,
but I further recommend that the Court ORDER the clerk’s office to docket Plaintiff’s 2016
Complaint and related documents, [ECF Nos. 1, 11, 13, 14, 15, 16], in Civil No. GLR-14-2112
so that United States District Judge George L. Russell III can determine whether Plaintiff is
entitled to further relief.
On April 30, 2012, Plaintiff filed a claim for Disability Insurance Benefits (“DIB”),
alleging a disability onset date of December 1, 2010. [ECF No. 11, Ex. 2]. Plaintiff’s claims
were denied initially and on reconsideration. Id. A hearing was held on March 5, 2014, before
an Administrative Law Judge (“ALJ”). Id. Following the hearing, on March 18, 2014, the ALJ
determined that Plaintiff was not disabled within the meaning of the Social Security Act during
the relevant time frame.
On June 19, 2014, the Appeals Council (the “AC”) denied
Plaintiff’s request for review, and notified Plaintiff of his right to seek judicial review by
commencing a civil action within 60 days from the date of his receipt of the AC’s notice. [ECF
On July 1, 2014, Plaintiff, proceeding as a “volunteer for the organization Organizing for
Action,” filed a pro se complaint alleging a multitude of claims against the United States, the
State of Maryland, the State of West Virginia, and various federal departments and agencies,
including the Social Security Administration. Organizing for Action William A. Taccino v.
United States of America et al., Civ. No. GLR-14-CV-02112, (D. Md. July 1, 2014)
(unpublished). Notably, within the nineteen page complaint, Plaintiff alleged that he “ha[d] been
denied and deprived of…his entitled Social Security disability benefits[.]” Id. at [ECF No. 1, p.
2]; see id. at p. 6 (contending that the Commissioner, “for the past 2 years has wrongfully and/or
illegally denied Plaintiff of his entitled Social Security disability benefits.” ). However, because
Plaintiff also alleged a multitude of claims against fourteen defendants, on July 16, 2014, Judge
Russell dismissed Plaintiff’s complaint as frivolous. Id. at [ECF Nos. 3, 4].
More than two years later, on August 5, 2016, Plaintiff filed this complaint against the
Commissioner. [ECF No. 1]. Specifically, Plaintiff alleged that his social security claim was
erroneously dismissed because his 2014 complaint had constituted a timely appeal of the
Commissioner’s final order. Id. On November 14, 2016, the Commissioner moved to dismiss
Plaintiff’s 2016 complaint as untimely. [ECF No. 11].
The Commissioner moves to dismiss Plaintiff’s 2016 complaint because the Court does
not have subject matter jurisdiction over Plaintiff’s claims. [ECF No. 11]. Plaintiff opposes the
Commissioner’s Motion to Dismiss, and asks this Court to strike the Commissioner’s Motion to
Dismiss, grant an emergency injunction, and grant default judgment in Plaintiff’s favor. [ECF
Nos. 13, 15, 16]. To support his motions, Plaintiff argues that he timely filed for judicial review
of the Commissioner’s decision in 2014, but that the Court erroneously dismissed his complaint.
Id. The Commissioner contends, however, that dismissal of the 2016 case is proper because
Plaintiff’s claims are untimely. [ECF No. 11].
As an initial matter, motions to dismiss for lack of subject matter jurisdiction are
governed by Federal Rule 12(b)(1). 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 Rule 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 converting the proceeding to one for summary
judgment.” Evans, 166 F.3d at 647. The pleadings of pro se litigants, such as Plaintiff, are
liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Here, the Commissioner asserts that Plaintiff’s complaint must be dismissed because it is
untimely. [ECF No. 11, p. 2]. On June 19, 2014, the AC mailed Plaintiff notice of its decision
denying his request for review of an adverse decision issued by an ALJ, regarding his claim for
DIB. Id. at p. 1. That notice also advised Plaintiff of his statutory right to commence a civil
action within sixty days from receipt of the notice. Id.; 42 U.S.C. §§ 405(g) and (h). The
Commissioner’s implementing regulations have interpreted the statute to permit sixty-five days
from the date of the notice, to allow sufficient time for mailing the notice. 20 C.F.R. §§ 404.901,
422.210(c). Plaintiff therefore had to file his civil action on or before August 23, 2014. The
Commissioner is correct, then, that Plaintiff filed this complaint two years late, on August 5,
2016. [ECF No. 11] (citing [ECF No. 1]). Accordingly, this Court lacks jurisdiction in this 2016
case to adjudicate Plaintiff’s motions.
However, Plaintiff may be correct that he timely appealed the Commissioner’s decision.
[ECF No. 13]. On July 1, 2014, less than one month after the AC denied review of the ALJ’s
decision, Plaintiff filed a complaint alleging, in part, that his Social Security disability benefits
were wrongly denied. Organizing for Action William A. Taccino, Civ. No. GLR-14-CV-02112,
at [ECF No. 1, p. 2, 6]. Although Plaintiff’s Social Security claim was buried among many
frivolous claims against non-party defendants, Plaintiff’s 2014 complaint may have constituted a
timely appeal of the Commissioner’s final judgment. Thus, the most appropriate course of action
is to file Plaintiff’s current complaint, and related documents, in Civil Case No. GLR-14-CV2112 to allow Judge Russell to consider whether Plaintiff’s 2014 filing constituted a timely
appeal and, if so, whether Plaintiff is now entitled to any type of relief.
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT the Commissioner’s Motion to Dismiss [ECF No. 11];
2. the Court DENY Plaintiff’s Motions [ECF Nos. 13, 16];
3. the Court ORDER the Clerk to docket [ECF Nos. 1, 11, 13, 14, 15, 16] in Civil Case
No. GLR-14-CV-2112; and
4. the Court ORDER the Clerk 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 Rule 301.5(b).
IV. 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 27, 2017
Stephanie A. Gallagher
United States Magistrate Judge
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