Silva v. Social Security Administration

Filing 26

ORDER by Chief Magistrate Judge Carmen E. Garza. (ag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BARBARA SILVA,
Plaintiff,
v.

No. CV 17-1224 CG

SOCIAL SECURITY ADMINISTRATION,
Nancy A. Berryhill, Acting Commissioner
of Social Security Administration,
Defendant.
ORDER
THIS MATTER is before the Court sua sponte. The parties have consented to
the undersigned to conduct dispositive proceedings in this matter. (Doc. 12). On April
25, 2019, the Court granted Plaintiff Barbara Silva’s Motion to Amend Complaint, (Doc.
17), in accordance with Federal Rule of Civil Procedure 15(a)(1)(B).
This case is currently docketed as an appeal of the Social Security
Administration’s denial of disability insurance benefits based on Plaintiff’s allegations in
both her original and amended complaints. See (Doc. 23 at 1) (citing “section 205(g)
and/or section 1631(c)(3) of the Social Security Act, 42 U.S.C. 405(g) and/or 1383
(c)(3).”). Indeed, Plaintiff repeatedly refers to “[t]he decision of the Administrative Law
Judge” and asks the Court to “remand the case to the Commissioner of [sic] the Social
Security.” (Doc. 23 at 7).
However, Plaintiff’s complaints also make allegations under the Federal Torts
Claim Act (“FTCA”) against the Social Security Administration and the United States of
America. See e.g., (Doc. 23 at 4) (citing 28 U.S.C. § 1346(b), a statute that pertains to
the district court’s jurisdiction to hear civil actions against the United States); (Doc. 23 at

7) (arguing that “[t]he controlling date for the purposes of [sic] Statutes of Limitations on
the FTCA in this case should be […]”) (emphasis added); id. (asking the Court to
include the “Original SF95 Claim as evidence”); id. (asking the Court to “grant Plaintiff
the maximum relief pursuant to the Federal Tort Claims Act”).
The Court understands Plaintiff to be arguing for reversal of the Social Security
Administration’s written response that she received after submitting her SF95 form. See
(Doc. 1 at 9). An SF95 is a form used by an individual to allege property damage,
personal injury, or death caused by a federal employee. This form, or its functional
equivalent, must be presented to the federal agency whose employee’s conduct gave
rise to the injury prior to the plaintiff filing a lawsuit under the Federal Torts Claim Act.
Under 28 U.S.C. § 2675, an individual seeking redress in federal court pursuant to the
Federal Torts Claim Act “shall have first presented the claim to the appropriate Federal
agency and [her] claim shall have been finally denied by the agency in writing and sent
by certified or registered mail.”
The Social Security Administration’s “denial” of Plaintiff’s claim – i.e., its response
to her SF95 form – does not require “remand” or “reversal.” Rather, the denial of the
SF95 is a prerequisite to bringing this case in federal court. See Lopez v. U.S., 823 F.3d
970, 976 (10th Cir. 2016) (“[T]he FTCA bars would-be tort plaintiffs from bringing suit
against the government unless the claimant has previously submitted a claim for
damages to the offending agency”) (quoting McNeil v. U.S., 508 U.S. 106, 112 (1993)).
Ultimately, the Court concludes that, despite Plaintiff’s references to the Social
Security Act and her requests for remand of the Administrative Law Judge’s decision,
neither her Amended Complaint nor her original complaint alleges a denial of Social

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Security disability benefits. Thus, having concluded that this case involves allegations
under the Federal Torts Claim Act and not the Social Security Act, the Court does not
have jurisdiction to hear such a claim against the Social Security Administration. Rather,
the only proper party to an action under the Federal Torts Claim Act is the United States
of America. See e.g., F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (concluding that a claim
alleging a Federal Torts Claim Act violation is only actionable against the United States,
not an agency of the Federal Government); see also 28 U.S.C. §§ 1346(b)(1), 2679(a).
Finally, the Court notes that Arash Kashanian, an attorney, purportedly wrote
Plaintiff’s Complaint. See (Doc. 1 at 6) (“Attorney Disclosure: This document was written
by Arash Kashanian, Esq., an attorney licensed to practice in the state of New Mexico
as well as the United States District Court for the District of New Mexico.”). If Mr.
Kashanian is representing Plaintiff in any capacity, he must enter his appearance on the
docket and he must comply with the New Mexico Rules of Professional Conduct, the
New Mexico Rules of Civil Procedure, and the Federal Rules of Civil Procedure. The
Court further notes that Mr. Kashanian is indefinitely suspended from the practice of law
in the State of New Mexico and therefore cannot practice before this Court in the District
of New Mexico. The Court advises Mr. Kashanian that it will not permit the unauthorized
practice of law.
In light of the above, the Court ORDERS:
(1) The United States Marshall serve a copy of the Summons and Amended
Complaint on the United States Attorney;
(2) The Clerk of Court amend the case caption and add the United States of America
as a Defendant to this action;

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(3) The Clerk of Court amend the “Nature of Suit” and “Cause” in this case to reflect
an action pursuant to the Federal Torts Claim Act;
(4) The Clerk of Court assign a referral Judge to this case and provide the United
States of America an opportunity to consent to the undersigned to remain as the
presiding Judge once counsel has entered their appearances; and
(5) The Social Security Administration be dismissed from this case for want of
jurisdiction.
IT IS SO ORDERED.

________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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