Richter v. U.S. Social Security Administration
MEMORANDUM AND ORDER - Plaintiff is granted 30 days from the date of this Memorandum and Order to file an amended complaint that states a claim upon which relief can be granted. Failure to file an amended complaint or failure to sufficiently amend th e claims will result in dismissal of this action without prejudice and without further notice. The Clerk of the Court's office is directed to set the following pro se case management deadline: August 25, 2017: check for amended complaint. Plaintiff's Motion for Summary Judgment (Filing No. 7 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
U.S. SOCIAL SECURITY
Plaintiff’s Complaint against the Social Security Administration (“SSA”)
alleges that the SSA violated unspecified provisions of the Civil Rights Act of 1964;
her rights under the First, Fifth (due process), and Eighth Amendments of the United
States Constitution; and unnamed sections of the Americans With Disabilities Act
when the SSA “cut me off of SSI” and failed to “schedule a timely ALJ hearing on a
disputed SSI matter.” Plaintiff alleges that the unidentified “matter” was appealed in
1999 and 2014, and the SSA failed to schedule any of the “3 ALJ appeal hearings”
and the “3 inperson [sic] conferences.” (Filing No. 1 at CM/ECF pp. 1-2.) Plaintiff
also complains that the SSA made it difficult for her to obtain necessary forms and
“consistently refuses to answer my questions.” (Filing No. 1 at CM/ECF p. 1.)
Plaintiff makes no requests for monetary damages or other relief.1
Plaintiff has been given leave to proceed with this case in forma pauperis
(Filing No. 5.) and has filed a “Motion for Summary Judgment” (Filing No. 7)
because she “did not get a response to the complaint filed May 1, 2017 by USPS
mail.” This case was reassigned to me on July 18, 2017. (Filing No. 8.)
In order to state a claim for relief, Plaintiff must, among other things, make “a
demand for the relief sought.” Fed. R. Civ. P. 8(a)(3).
I. STANDARDS FOR INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
Although Plaintiff does not expressly cite the Social Security Act as the basis
for her Complaint, she specifically challenges the SSA’s discontinuation of her SSI
benefits and the method by which it did so.
No Exhaustion of Administrative Remedies as to Wrongful
Discontinuation of Benefits Claim
Broadly construing Plaintiff’s Complaint, it is apparent that this court lacks
jurisdiction over Plaintiff’s claim that the SSA wrongly discontinued her SSI benefits
because Plaintiff does not allege or establish that she has exhausted her administrative
In order to exhaust her administrative remedies, Plaintiff must obtain a decision
from an Administrative Law Judge after a hearing, 20 C.F.R. § 404.929, and, if
dissatisfied with the outcome, seek review from the Appeals Council, 20 C.F.R. §
404.967. The Appeals Council may either deny review and allow the ALJ’s decision
to stand as the final determination of the Commissioner, or it can issue its own
decision. 20 C.F.R. § 404.981. Only after these steps would Plaintiff’s case become
ripe for judicial review. Id.; see also Mitchael v. Colvin, 809 F.3d 1050, 1055 (8th
Here, Plaintiff has neither referred to, nor submitted, any final decision from an
ALJ or the Appeals Council, depriving this court of jurisdiction over Plaintiff’s claim
that the SSA wrongly discontinued her SSI benefits. Grisso v. Apfel, 219 F.3d 791,
793 (8th Cir. 2000) (“To the extent [the plaintiff’s] mandamus petition sought
reimbursement of benefits, we agree with the district court that it lacked jurisdiction
to review such a claim absent exhaustion of administrative remedies.”); Robinson v.
Sec’y of Health & Human Servs., No. 89-1199, 1989 WL 109432, at *1 (6th Cir. Sept.
22, 1989) (affirming dismissal of claim for compensatory and punitive damages for
deprivations allegedly suffered after Social Security benefits were wrongfully
terminated because the claim “was not a review of an agency decision, [and] the court
lacked jurisdiction under [42 U.S.C.] § 405(g)” to entertain it); Armstrong v. Astrue,
569 F. Supp. 2d 888, 898 (D. Minn. 2008) (dismissing claim challenging amount of
monthly SSA benefits when plaintiff failed to submit final decision from ALJ or
Appeals Council for federal district court’s review).
To the extent Plaintiff intends to seek money damages from the Social Security
Administration for “cutting off” her SSI benefits and doing so in a manner that
violated her constitutional rights, her claims are barred by sovereign immunity.
As an agency of the United States, the SSA enjoys sovereign immunity from
suit absent consent, and such consent is a prerequisite for jurisdiction. See FDIC v.
Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.”); United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite for jurisdiction.”)
Section 405(g) of the Social Security Act only permits suits challenging final
decisions of the SSA in connection with Social Security eligibility and benefits
determinations. See 42 U.S.C. § 405(g) (providing that federal court jurisdiction is
limited to “affirming, modifying, or reversing the [final] decision of the
‘42 U.S.C. [§ ] 405(g) is only jurisdictional in nature and does not waive
sovereign immunity or confer a substantive right.’ De Lao v. Califano,
560 F.2d 1384, 1390 (9th Cir. 1977) (citation omitted). Nor does the
statute ‘authorize money damages as a remedy for wrongful denial of
disability benefits.’ Petzold v. Astrue, No. CIV-07-0325, 2008 WL
542958, at *6 n.15 (W.D. Okla. Feb. 25, 2008) (citing Schweiker v.
Chilicky, 487 U.S. 412, 424, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988)).
Nzongola v. Astrue, 863 F. Supp. 2d 25, 28 (D.D.C. 2012) (dismissing plaintiff’s
complaint for lack of subject matter jurisdiction because action brought against SSA
was effectively one brought against United States, which is immune from suit without
prior consent and an express waiver of such immunity; 42 U.S.C. § 405(g) allows
SSA Secretary’s decisions to be reviewed by federal district court, and that remedy
is exclusive and bars damages claims resulting from that decision).
Here, Plaintiff’s Complaint does not challenge any final decision of the SSA,
and 42 U.S.C. § 405(g) does not expressly waive the SSA’s immunity from suit as to
the claims Plaintiff asserts. Because sovereign immunity operates as a jurisdictional
bar, this court lacks subject matter jurisdiction over Plaintiff’s claims against the
Social Security Administration for monetary damages—to the extent she asserts such
a claim. See Glenn v. Soc. Sec. Admin., 110 F. Supp. 3d 541 (D.N.J. 2015) (dismissing
for lack of subject matter jurisdiction suit against SSA seeking damages for alleged
disability discrimination, bias, and threats because pro se plaintiffs’ complaint did not
challenge any final decision of the SSA, 42 U.S.C. § 405(g) contains no waiver of the
SSA’s immunity from plaintiffs’ discrimination and tort allegations, and plaintiffs
failed to allege facts suggesting SSA or one of its agents waived the SSA’s sovereign
immunity); Fabian v. Colvin, No. 14-141, 2014 WL 3952803 (W.D. Tex. Aug. 13,
2014) (dismissing pro se plaintiff’s discrimination, evidence tampering, emotional
distress, and due process claims against SSA on sovereign immunity grounds); Cikraji
v. Messerman, No. 13-2059, 2014 WL 2965281 (N.D. Ohio June 30, 2014)
(dismissing pro se plaintiff’s common law claims against SSA on sovereign immunity
grounds); Camacho-Corona v. Douglas Cty. Dep’t of Corr., No. 8:12CV132, 2012
WL 3112020, at *2 (D. Neb. July 31, 2012) (“It is well settled that the United States
has not waived its sovereign immunity for suits seeking damages based on alleged
constitutional violations.” (citing cases)); Acevedo v. United States, No. 4:08CV248
CDP, 2008 WL 2098129 (E.D. Mo. May 16, 2008) (action brought against SSA is one
brought against the United States, which possesses sovereign immunity and can only
be sued with its consent); Fonseca v. Columbia Gas Sys., Inc., 37 F. Supp. 2d 214
(W.D.N.Y. 1998) (complaint seeking damages from the Commissioner of SSA in his
official capacity barred by the doctrine of sovereign immunity); 2 Soc. Sec. Disab.
Claims Prac. & Proc. § 19:3 (2d ed. Westlaw 2016) (federal statutory provisions
allowing judicial review of SSA Commissioner’s final administrative decisions do not
act as waiver of sovereign immunity and do not extend jurisdiction to actions seeking
damages because of decision denying benefits).
Potential Claims for Equitable Relief
As stated above, Plaintiff does not explicitly request any type of relief—neither
monetary nor equitable. However, to the extent Plaintiff intends to request equitable
relief, sovereign immunity would not bar claims for declaratory and injunctive relief
against the SSA by virtue of 5 U.S.C. § 702 of the Administrative Procedure Act
(“APA”). Even though Plaintiff’s claims are not brought under the APA, section 702
of the APA “expressly waives sovereign immunity as to any action for nonmonetary
relief brought against the United States,” including claims arising under the
Constitution. Raz v. Lee, 343 F.3d 936, 938 (8th Cir. 2003) (emphasis added). See
Krafsur v. Davenport, 736 F.3d 1032, 1036 (6th Cir. 2013) (“[T]he Administrative
Procedure Act waives sovereign immunity in lawsuits seeking non-monetary remedies
from the United States for various legal wrongs, again including constitutional
violations. 5 U.S.C. §§ 702, 706(2)(B).”); Red Lake Band of Chippewa Indians v.
Barlow, 846 F.2d 474, 476 (8th Cir. 1988) (concluding § 702 waiver is not dependent
on application of APA; § 702 waiver is dependent only on suit being against
government and being one for non-monetary relief); Camacho-Corona v. Douglas
Cty. Dep’t of Corr., No. 8:12CV132, 2012 WL 3112020, at *3 (D. Neb. July 31,
2012) (same); Taylor v. Rice, No. CIV. 10-4746, 2012 WL 246014, at *7 (D. Minn.
Jan. 6, 2012), report and recommendation adopted, No. CIV. 10-4746, 2012 WL
246038 (D. Minn. Jan. 25, 2012) (5 U.S.C. § 702 waived defendants’ sovereign
immunity in prisoner’s lawsuit against federal Bureau of Prisons employees in their
official capacities which did not seek review under APA, but instead sought injunction
to stop continuing constitutional violations).
Plaintiff should note that should she request equitable relief, this court may still
lack jurisdiction over her claims. See, e.g., Glass v. Comm’r, Soc. Sec., No. CV
WMN-16-1357, 2017 WL 510391, at *2 (D. Md. Feb. 8, 2017) (Report and
Recommendations) (rejecting argument that court had federal question jurisdiction,
combined with waiver of sovereign immunity under 5 U.S.C. § 702, of claims asserted
against the Commissioner of SSA regarding the timeliness of plaintiff’s Social
Security application and the length of plaintiff’s back pay award because such issues
“expressly pertain[ed] to adjudication of her Social Security claim,” even though
plaintiff couched complaint as seeking only non-monetary declaratory and injunctive
relief under 5 U.S.C. § 702; recommending dismissal of complaint for lack of subject
Purported Claims Under Civil Rights Act and ADA
Plaintiff’s Complaint generally refers to the Civil Rights Act of 1964 and the
Americans With Disabilities Act, but she does not allege any factual matter “showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As stated above, a claim
is not facially plausible unless “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Therefore, Plaintiff’s Complaint, as currently
drafted, fails to state a claim upon which relief may be granted under the Civil Rights
Act of 1964 and the Americans With Disabilities Act.
Plaintiff’s Motion for Summary Judgment
Plaintiff has filed a “Motion for Summary Judgment” (Filing No. 7) on the
grounds that she “did not get a response to the complaint filed May 1, 2017 by USPS
mail.” Where, as here, “[t]he United States, a United States agency, or a United States
officer or employee [is] sued only in an official capacity,” no answer is required until
60 days after service on the United States Attorney. Fed. R. Civ. P. 12(a)(2). The
docket sheet for this case does not indicate that service upon the United States
Attorney has occurred. Therefore, the defendant is not yet obligated to file an answer,
and Plaintiff’s Motion for Summary Judgment must be denied.
IT IS ORDERED:
Plaintiff is granted 30 days from the date of this Memorandum and Order
to file an amended complaint that states a claim upon which relief can be granted and
(a) Make a demand for what type of relief Plaintiff seeks pursuant to Fed.
R. Civ. P. 8(a)(3). Plaintiff should not demand money damages from the Social
Security Administration for “cutting off” her SSI benefits and doing so in a
manner that violated her constitutional rights, as such claims are barred by
(b) With regard to any claim Plaintiff intends to bring under 42 U.S.C. §
405(g) for reimbursement of SSI benefits that the SSA wrongfully
discontinued, allege facts that have—or will likely have after a reasonable
opportunity for further investigation or discovery—evidentiary support
showing that Plaintiff has exhausted her administrative remedies. Fed. R. Civ.
Allege facts that have—or will likely have after a reasonable opportunity
for further investigation or discovery—evidentiary support showing that
Plaintiff is entitled to relief under particular sections of the Civil Rights Act of
1964 and the Americans With Disabilities Act pursuant to Fed. R. Civ. P.
Failure to file an amended complaint or failure to sufficiently amend the
claims will result in dismissal of this action without prejudice and without further
The Clerk of the Court’s office is directed to set the following pro se case
management deadline: August 25, 2017: check for amended complaint; and
Plaintiff’s Motion for Summary Judgment (Filing No. 7) is denied.
DATED this 25th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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