Pearson v. Astrue

Filing 17

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to amend the complaint [Doc. # 8 ] is granted. IT IS FURTHER ORDERED that defendants amended motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) [Doc. # 14 ] is granted. IT IS FURTHER ORDERED that defendants motion to dismiss [Doc. # 6 ] is moot. Signed by District Judge Carol E. Jackson on 12/31/12. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LAMAR A. PEARSON,
Plaintiff,
vs.
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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Case No. 4:12-CV-384 (CEJ)

MEMORANDUM AND ORDER

This matter is before the Court on defendant’s amended motion to dismiss
plaintiff’s amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Plaintiff opposes defendant’s motion, and the issues are fully briefed.
I. Background
At issue in this case is the Social Security Administration’s practice of concealing
the identity of the Administrative Law Judge (ALJ) from claimants of supplemental
security income (SSI) until the day of the hearing. Plaintiff Lamar A. Pearson applied
for SSI, and was informed that the hearing regarding his application would occur on
April 19, 2012, before an unidentified ALJ. On February 9, 2012, plaintiff, through
counsel, submitted a Freedom of Information Act (FOIA) request to the Hearing Office
Director at the Missouri office where the hearing would occur and to the Social Security
Office of Privacy and Disclosure in Baltimore, Maryland. Pursuant to FOIA, 5 U.S.C. §
552, plaintiff requested disclosure of the name of the ALJ assigned to his case, and the
written policy pursuant to which the identity of the ALJ is concealed until the date of
the hearing.

Plaintiff claims that his request was received by the Social Security

Administration (SSA) on February 10, and that the time for agency response expired
before he filed his original complaint with this Court of March 2. Defendant claims that
the request was received on February 17, and time to respond did not expire until
March 16.
On April 4, 2012, defendant moved to dismiss and also responded to plaintiff’s
FOIA request. Defendant produced the agency’s policy but withheld the name of the
ALJ assigned to plaintiff’s case, citing FOIA exemption 2 (exemption for the internal
personnel rules and practices) and exemption 7(E) (exemption for law enforcement
information). Defendant’s motion to dismiss was based in part upon plaintiff’s error
in naming the Commissioner of Social Security, Michael Astrue, as the defendant,
rather than naming the agency itself. In response to defendant’s motion, plaintiff filed
an amended complaint on April 10, naming the SSA as the defendant. On April 19, the
date of plaintiff’s administrative hearing, plaintiff and his counsel learned for the first
time the name of the ALJ assigned to plaintiff’s case.
Defendant’s motion to dismiss this amended complaint is now before the Court.
Defendant argues that plaintiff failed to exhaust his administrative remedies as
required by the FOIA, and also that the suit should be dismissed as moot because
plaintiff has now obtained all the information he requested from the SSA. Because this
Court finds the case to be moot, the Court will not reach the other issues presented
by defendant’s motion.
II. Legal Standard
Dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure is
appropriate if the plaintiff has failed to satisfy a threshold jurisdictional requirement.

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See Trimble v. Asarco, Inc., 232 F.3d 946, 955 n.9 (8th Cir. 2000). Mootness is a
threshold jurisdictional issue. North Carolina v. Rice, 404 U.S. 244, 246 (1971). See
also State of S.D. v. Hazen, 914 F.2d 147, 149 (8th Cir. 1990) (“Because a moot case
is not a case or controversy within the meaning of Article III of the United States
Constitution, the mootness question is jurisdictional.” (citing Rice, 404 U.S. at 246)).
A dismissal for lack of subject matter jurisdiction requires that the complaint be
successfully challenged on its face or on the factual truthfulness of its averments.
Titus v. Sullivan,4 F.3d 590, 593 (8th Cir. 1993). In a facial attack, the court restricts
itself to the face of the pleadings, and all of the factual allegations concerning
jurisdiction are presumed to be true. Id. However, in a factual challenge, the court
considers matters outside of the pleadings, and no presumptive truthfulness attaches
to the plaintiff’s allegations. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir.
1990). Furthermore, the existence of disputed material facts does not preclude the
trial court from evaluating for itself the merits of jurisdictional claims. Id. at 729.
“Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction – its very
power to hear the case – there is substantial authority that the trial court is free to
weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Id. The burden of proving the existence of jurisdiction rests with the plaintiff. Id.
III. Discussion
Article III of the United States Constitution requires that federal courts rule only
on actual cases or controversies. When the controversy between the parties ends, so
too ends the court’s power to hear the case. See DeFunis v. Odegaard, 416 U.S. 312,
316 (1974). The court must not issue advisory opinions or “declare principles or rules
of law which cannot affect the matter in issue in the case before it.” Mills v. Green,

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159 U.S. 651, 653 (1895). “If an event occurs while a case is pending... that makes
it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party,
the appeal must be dismissed.” Church of Scientology of C.A. v. United States, 506
U.S. 9, 12 (1992) (citing Mills, 159 U.S. at 653). It is widely accepted that, in the
context of the FOIA, the release of the desired information is such an event. See
Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir. 1993)
(“[o]nce the government produces all the documents a plaintiff requests, her claim for
relief under the FOIA becomes moot.”). See also Walsh v. U.S. Dep’t of Veterans
Affairs, 400 F.3d 535, 536-37 (7th Cir. 2005); Perry v. Block, 684 F.2d 121, 125 (D.C.
Cir. 1982) (“however fitful or delayed the release of information under the FOIA may
be, once all requested records are surrendered, federal courts have no further
statutory function to perform.”).
In this case, plaintiff has received all the information he requested. The SSA
disclosed its written policy on April 4, and plaintiff learned the identity of the ALJ on
April 19. The controversy between the parties no longer exists. Plaintiff’s request for
declaratory judgment and attorneys fees cannot extend the duration of the
controversy. See Cornucopia Inst. v. U.S. Dep’t of Ag., 560 F.3d 673, 676 (7th Cir.
2009) (“declaratory judgment is appropriate only when the court’s ruling would have
an impact on the parties.... The only cognizable way [plaintiff] could be affected by this
lawsuit is through an award of attorney’s fees. But because a claim for attorney’s fees
is separate from the merits of the action, it cannot save [plaintiff’s] FOIA claim from
becoming moot.”).
Plaintiff argues that his claim falls under an exception to the mootness doctrine,
because it is “capable of repetition, yet evading review.” This exception allows courts

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to hear otherwise moot cases when “(1) the challenged action was in its duration too
short to be fully litigated prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would be subjected to the
same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).
A claim “evades review” when the period controversy is fleeting by nature, such
as an election cycle or a nine-month pregnancy. See Dunn v. Blumstein, 405 U.S. 330,
364 n. 2 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973). Plaintiff argues that there
are at most five months between the date a claimant is assigned an ALJ and the date
of the hearing. He asserts that litigation under the FOIA will always take longer than
five months, especially with the FOIA’s administrative exhaustion requirement.
Because every claimant learns the identity of his or her ALJ on the date of the hearing,
no claimant will ever be able to challenge the legality under the FOIA of the prehearing anonymity of the ALJ; every claim will be instantly moot on the date of the
hearing.

Defendant responds that plaintiff’s argument is speculative: “While it is

possible that any future disability hearing may occur prior to his ability to obtain a FOIA
decision from a Federal court, it is also possible that he could obtain such a decision.”
Def.Reply at 7, n. 7 [Doc. # 16]. While it might be theoretically possible, in reality it
is highly unlikely that a court would reach the merits of plaintiff’s claim before the day
of the ALJ hearing. In this sense, plaintiff’s claim will evade review of the courts.
The claim must also be “capable of repetition,” meaning the “[t]here must be
a reasonable expectation or a demonstrated probability that the same controversy will
recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482
(1982) (internal quotations omitted). Therefore, the relevant inquiry is the likelihood
that Pearson will again apply for disability benefits, appeal to an ALJ, and request the

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name of the ALJ pursuant to the FOIA. In most cases in which courts found FOIA
claims moot by the voluntary production of documents, the “capable of repetition yet
evading review” exception could not apply because there is no reason that the plaintiff
would again request records from the same agency once all the information has been
produced. See Walsh, 400 F.3d at 537 (“[T]here is little reason to think that Walsh
will ever request additional records [from the Department of Veteran Affairs]. Because
locating the records he has received required so much effort and he already has the
whole kit and caboodle, the faint possibility that he might generate more records in the
future, request them, and wait too long to receive them is an insufficient reason for
saying this case is moot.”). See also Chilivis v. S.E.C., 673 F.2d 1205, 1210 (11th Cir.
1982).

In this case, just as in Walsh, it is unlikely that plaintiff will request

additional agency records. On April 19, the ALJ found that plaintiff is disabled and
entitled to benefits. Plaintiff argues that he may have occasion to request the name
of yet another ALJ if he disagrees with the agency’s calculation of the amount of
benefits he is to receive. Also, plaintiff states that he may be subject to continuing
disability review, because he did not assert grounds for permanent disability. Again,
he might appeal any unfavorable determination to an ALJ.

This possibility is too

remote. The SSA would have to make an unfavorable determination before Pearson
could appeal to an ALJ, and there is no guarantee that Pearson would again be
dissatisfied by the agency’s determination of his entitlement to benefits. Furthermore,
if plaintiff again had occasion to request the name of an ALJ, it is possible that the SSA
would issue a timely response to plaintiff’s request. See Walsh, 400 F.3d at 537. The
likelihood of recurrence in this case simply does not rise to the level necessary to save
plaintiff’s claim from mootness.

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For the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff’s motion to amend the complaint [Doc.
# 8] is granted.
IT IS FURTHER ORDERED that defendant’s amended motion to dismiss the
amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) [Doc. #14] is granted.
IT IS FURTHER ORDERED that defendant’s motion to dismiss [Doc. # 6] is
moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 31st day of December, 2012.

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