Cummiskey v. Commissioner, Social Security Administration

Filing 30

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 4/5/2013. (c/m to plaintiff by chambers)(nss, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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JAMES CUMMISKEY
Plaintiff,
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
Defendant.

-ENTERED
._RECE/VED

. APR 08.2013
BY

Civil No.: PJM 11-956

MEMORANDUM OPINION
Plaintiff James Cummiskey initially filed this suit, pro se, against Defendant Social
Security Administration

("SSA")

"windfall elimination provision"

after the SSA Appeals Council upheld application
("WEP") to reduce his retirement insurance benefits.

of a
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In

August 2011, with the consent of both parties, the Court remanded the case to the SSA for
further proceedings

and administratively

closed the action.

Shortly thereafter, the Appeals

Council reversed its position and concluded that Cummiskey's
were not subject to the WEP.

retirement insurance benefits.

The SSA subsequently wired him a refund in the amount of

$6,418.00.
Cummiskey has filed a request that the case be reopened in this Court, initially arguing
that the refund did not cover the full amount he was entitled to and that the SSA owes him
thousands of dollars more in interest, fees, and damages.

The SSA filed an opposition to

Cummiskey's request, contending that the Court lacked jurisdiction and also moving to dismiss
for failure to state a claim.

The Court held that it did have jurisdiction and ordered the case

reopened as to the appropriateness of the refund amount, but dismissed Cummiskey's

requests

I WEP is a modified formula for calculating the retirement benefits of an individual who receives a pension from
work where Social Security taxes were not deducted from his or her paychecks. The formula results in lower Social
Security benefits. See 42 U.S.C. 9 4l5(a)(7).

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for interest, fees, and damages. (See April 23, 2012 Opinion.) In response to the Court's opinion,
the SSA filed another opposition, renewing its motion to dismiss for failure to state a claim and
seeking reconsideration

of the Court's prior ruling as to jurisdiction.

The Court denied the

SSA's motion to reconsider its jurisdiction, and deferred on its motion in all other respects. (See
November 15, 2012 Order.) The Court then instructed both parties to submit all documentation
they had regarding the amount of benefits that had been improperly withheld during the period
when the SSA was erroneously applying the WEP to Cummiskey's salary. The Court reiterated
then, and does so again, that the only issue remaining between the parties was and is whether the
$6,418 paid to Cummiskey fully compensated him for the benefits that were improperly withheld
from September 2009 until October 2011. (See November 16,2013 Letter Order.)

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In response to the Court's request, Cummiskey has now filed documents indicating that, .
after further review and calculations, he believes he was compensated the appropriate amount for
the benefits withheld, give or take $2.20. But he requests again an explanation from the SSA as
to how it calculated his benefits, and further states that he is entitled to pre-September 2009
funds if the SSA cannot explain itself. The SSA has filed documents contending that the $2.20
difference is a rounding error, and states that Cummiskey has no legal basis for his new demand
of earlier 2009 monies.

The SSA reiterates its position that there is no justiciable controversy

now that Cummiskey has agreed he was fully compensated for the erroneously withheld benefits.
The Court is convinced by the most recent submissions of the parties that there is no
longer a justiciable claim or controversy as to the period in question -- September 2009 to
October 2011, when the benefits were inappropriately withheld.

Cummiskey no longer contests

that he was underpaid these benefits, and no other time period is before the court in this

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litigation.

As there is no longer an actual controversy between the parties, this case must be

dismissed. See Already, LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013).

The Court GRANTS

Defendant's Motion to Dismiss.2
A separate Order will ISSUE.

lsi
UNIT

PE ER J. MESSITTE
SATES DISTRICT JUDGE

April S, 2013

2 Cummiskey has inquired as to filing fees. The Court notes that filing fees are typically only
recoverable from the opposing party by the prevailing party. Cummiskey cannot be said to be
the prevailing party here, so filing fees are not available to be recovered from the SSA.

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