Ross et al v. Broxton et al

Filing 22

MEMORANDUM OPINION (c/m to Plaintiffs 8/27/15 sat). Signed by Judge Deborah K. Chasanow on 8/27/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DANIEL HUBERT ROSS, et al.
:
v.

:

Civil Action No. DKC 14-2967

:
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration1

:
:

MEMORANDUM OPINION
This

case

DiGirolamo

was

for

referred

pretrial

to

management

recommendation for disposition.
2015,

Judge

DiGirolamo

Magistrate

filed

and

Judge
a

(ECF No. 16).
a

Report

and

Thomas

report

and

On July 29,
Recommendation,

recommending that Carolyn W. Colvin be substituted as Defendant,
and that Defendants’ motion to dismiss be granted.

(ECF No.

20).

objection

On

August

14,

accompanied by exhibits.

2015,

Plaintiffs

filed

an

(ECF No. 21).

Pursuant to 28 U.S.C. § 636, a district judge may designate
a

magistrate

judge

to

conduct

hearings

and

report

proposed

findings of fact and recommendations for action on a dispositive
motion.

1

Thereafter,

After initially naming R. Jeffries-Broxton, the Social
Security Administration, and Carolyn W. Colvin as Defendants,
Plaintiffs have agreed that Ms. Colvin, in her official
capacity, is the proper Defendant. (ECF Nos. 20, at 1; 14, at
3).

A party who is aggrieved by a magistrate
judge’s report and recommendation as to a
dispositive
motion
must
file
“specific
written objections to the proposed findings
and recommendations” within fourteen days.
Fed.R.Civ.P. 72(b)(2). The district judge
must then “determine de novo any part of the
magistrate judge’s disposition that has been
properly
objected
to.”
Fed.R.Civ.P.
72(b)(3). But, the Court “need only conduct
a de novo review of those portions of the
Magistrate Judge’s Report and Recommendation
to which objection is made.”
Chavis v.
Smith, 834 F.Supp. 153, 154 (D.Md.1993). As
to those portions of the report for which
there is no objection, the district court
“must ‘only satisfy itself that there is no
clear error on the face of the record in
order
to
accept
the
recommendation.’”
Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310, 315–16 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee
note), cert. denied, 546 U.S. 1091, 126
S.Ct. 1033, 163 L.Ed.2d 855 (2006).
Baltimore Line Handling Co. v. Brophy, 771 F.Supp.2d 531, 534-35
(D.Md. 2011).
Magistrate Judge DiGirolamo recommends that the complaint
be

dismissed

under

Federal

Rule

of

Civil

Procedure

12(b)(1)

because it is barred by the Social Security Act, 42 U.S.C. §
405(g),

and

administrative

because

Plaintiffs

remedies.

Judge

have

not

DiGirolamo

exhausted
also

noted

their
that

Plaintiffs’ alleged constitutional claims are not sufficient to
bypass the exhaustion requirement because they are not colorable
and are not collateral to the merits of a claim for benefits.
See Varandani v. Bowen, 824 F.2d 307, 310 (4th Cir. 1987) (citing

2

Mathews v. Eldridge, 424 U.S. 319, 330-31 (1976)).

Plaintiffs’

objection does not challenge the fact that they did not exhaust
their administrative remedies or that a potential substantive
claim for benefits is not presently actionable.
2).

Instead, Plaintiffs reassert their constitutional claims.

(Id.).
over

(ECF No. 21, at

This court does not have subject matter jurisdiction
Plaintiffs’

constitutional

collateral and colorable.

claims

unless

they

are

As Judge DiGirolamo noted:

“A claim is colorable if it is not ‘wholly
insubstantial, immaterial, or frivolous.’”
Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.
1987 (quoting Boettcher v. Sec’y of Health &
Human Servs., 759 F.2d 719, 722 (9th Cir.
1985)).
In other words, a constitutional
claim should be dismissed if it clearly
appears to be immaterial and made solely for
the purpose of obtaining jurisdiction or is
wholly insubstantial or frivolous.
Bell v.
Hood, 327 U.S. 678, 682-83 (1946); Holloway
v. Schweiker, 724 F.2d 1102, 1105 (4th Cir.
1984).
(ECF No. 20, at 10).
Plaintiffs’ argue that the Social Security Administration’s
(“SSA”)

“procedures

used

to

determine

the

amount

of

money

[Plaintiffs] can earn” in wages while receiving Social Security
benefits

are

unconstitutional.

(ECF

No.

1,

at

2).

First,

Plaintiffs allege that “the government’s restriction of [their]
liberty
violates

interests
the

to

earn

Thirteenth

a

livelihood

Amendment.

to

make

(Id.).

ends

meet”

Plaintiffs’

Thirteenth Amendment argument appears to be based on the belief
3

that the SSA’s reduction in benefits due to wages earned is a
“badge[]

of

interest

in

slavery”
[their]

(ECF No. 4, at 3).

that

restricts

right-to-work

and

Plaintiffs’
continued

“liberty

employment.”

Plaintiffs’ assertion that the SSA infringed

on their ability to work and earn a living is simply not correct
because

there

were

no

Plaintiffs could work.

absolute

restrictions

on

the

amount

Rather, the SSA, pursuant to statute and

regulation, reduced the monthly benefits Plaintiffs received to
offset

unreported

wages

earned.

Plaintiffs,

despite

their

policy disagreement, have made no colorable claim that the SSA’s
conduct,

or

the

applicable

incident

or

badge

of

statutes

slavery

that

and

regulations,

violates

the

is

an

Thirteenth

Amendment.
Plaintiffs then argue that this reduction in benefits is a
violation of their constitutionally protected “life, liberty,
[and] property” interests.

(ECF No. 4, at 3).

The reduction in

Plaintiffs’ benefits is not, however, a constitutional violation
because “a noncontractual claim to receive funds from the public
treasury [such as Social Security] enjoys no constitutionally
protected
(1975);

status.”

see

also

Weinberger
Flemming

v.

v.

Salfi,

Nestor,

363

422

U.S.

U.S.

749,

603,

772

616-17

(1960); Davis v. Bowen, 825 F.2d 799, 800 (4th Cir. 1987) (citing
Flemming, 363 at 611).

As such, “Congress has reserved the

right to modify the scheme of benefits,” and “[s]uspension of
4

benefits is unconstitutional ‘only if the statute manifests a
patently arbitrary classification, utterly lacking in rational
justification’ and not rationally related to legitimate goals.”
Davis, 825 F.2d at 800 (citing Flemming, 363 U.S. at 611).

Much

like in Salfi, “[t]he Constitution does not preclude” a rule
reducing benefits based on wages earned.
785.

Such

a

rule

is

not

“patently

See Salfi, 422 U.S. at
arbitrary”

or

“utterly

lacking in rational justification,” and Plaintiffs’ arguments
challenging its constitutionality are not colorable.

Rather,

Plaintiffs’ claim should be styled as one challenging the SSA’s
determination as to their individual benefits.

If Plaintiffs

feel their benefits were improperly reduced, they must follow
the SSA’s appeal process outlined in 20 C.F.R. § 404.900, but
they have not stated a colorable constitutional claim that would
give this court subject matter jurisdiction prior to exhaustion
of administrative remedies.2
review

of

the

record,

the

For the foregoing reasons, after a
court

will

overrule

Plaintiffs’

objections and adopt the Report and Recommendation, by separate
order.
/s/
DEBORAH K. CHASANOW
United States District Judge
2

Plaintiffs allege that they attempted to appeal
various
SSA
determinations,
but
the
record,
including
Plaintiffs’ exhibits, indicate that, if Plaintiffs did attempt
to appeal any of the determinations, they did not follow proper
procedures.
5