Silva v. Social Security Administration

Filing 46

REPORT AND RECOMMENDATIONS re 31 MOTION to Dismiss for Lack of Jurisdiction with Memorandum in support filed by United States of America by Magistrate Judge Jerry H. Ritter. Objections to R&R due by 11/30/2020. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mlt)

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

CV 17-1224 MV/JHR

UNITED STATES OF AMERICA,
Defendant.

SUPPLEMENTAL PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
This matter comes before the Court pursuant to the Order Sustaining Plaintiff’s Objection
and Rejecting Magistrate Judge’s Proposed Findings and Recommended Disposition, [Doc. 44],
filed July 20, 2020, and the Order of Reference entered by presiding District Judge Martha
Vazquez on August 28, 2019, which directed Magistrate Judge Jerry Ritter to “perform any legal
analysis required to recommend to the Court an ultimate disposition of [this] case.” [Doc. 39].
Judge Vazquez rejected my recommendation that this case be dismissed without prejudice for lack
of subject matter jurisdiction under the Federal Tort Claims Act (“FTCA”) (untimeliness) and
remanded the case for further consideration of the grounds for dismissal stated in the United States’
Motion to Dismiss. [See Docs. 31, 34, 42 and 43]; see generally 28 U.S.C. § 2401. Having carefully
reviewed the briefing a second time and after consulting the applicable law, I conclude that the
Court still lacks subject matter jurisdiction to consider Ms. Silva’s claims under the FTCA, this
time because the Act’s exceptions apply, and therefore I again recommend that the government’s
motion be granted and that this case be dismissed without prejudice. 1
“It is fundamental, of course, that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore
dismissal must be without prejudice.” Brown v. Buhman, 822 F.3d 1151, 1179 (10th Cir. 2016) (quoted authority and
internal alterations omitted).
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I.

INTRODUCTION
The government mistakenly issued the same social security number to Ms. Silva that it had

already issued to another person. [Doc. 23, p. 1]. There is no question that Ms. Silva was harmed
by the resulting confusion of identities over many years, and the government all but admitted fault
for at least some of the harm its negligence caused in a letter it sent to her in November 2015.
[Doc. 31-1, p. 7]. Unfortunately, the government’s admission of fault does not mean that Ms. Silva
can state a claim to recover monetary damages for its failures.
As a general matter, the United States government enjoys sovereign immunity, which has
only been waived in narrow circumstances by the Federal Tort Claims Act (“FTCA”). Even where,
as here, the government has clearly erred and admitted fault, recovery for certain torts, and by
extension, certain categories of damages, is prohibited by the language of the Act and case law
construing it. The wisdom of these prohibitions is for Congress to determine, and several federal
appellate courts, including the Tenth Circuit, have reasoned that claims analogous to Ms. Silva’s
cannot be brought even where a non-discretionary duty is identified. Finally, to the extent that Ms.
Silva’s non-contractual claims are not barred by the FTCA’s exceptions, she does not state a valid
claim for infliction of emotional distress under New Mexico law as required to recover under the
FTCA. Therefore, I again recommend that this case be dismissed without prejudice.
II.

BACKGROUND
Ms. Silva was issued a social security number that belonged to someone else when she was

10 years old, in June of 1976. [Doc. 23, p. 1]. In late 1992, while she was enlisted in the Navy, Ms.
Silva became aware that a garnishment action was entered against her. [Id.]. In January 1993 she
went to a Social Security Administration office and explained that someone else was using her
social security number (“SSN”). [Id., p. 2]. At that time, Ms. Silva told the Administration that she

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had to keep clearing her credit report and that she believed identity theft was involved. [Id.]. While
the Administration issued Ms. Silva a new social security number and transferred wages paid from
the old number to the new number for retirement purposes, it did not correct Ms. Silva’s impression
that her identity had been stolen and refused to provide sufficient documentation to allow Ms.
Silva to clear her name and continue serving in the Navy, resulting in her decision to accept an
honorable discharge after 15 years of service.
Plagued by creditors for years, Ms. Silva reached out to politicians to compel the
Administration to take meaningful action. She wrote to Senator Martin Heinrich in September
2015, explaining that the Administration issued the same social security number to her and another
person and that she had tried and failed to change her military records so she could re-enlist. [Doc.
31-1, p. 12]. Upon the Senator’s inquiry, Ms. Silva received a letter from the office of the Regional
Commissioner of Social Security in November 2015, admitting “fault in assigning you the Social
Security number … previously assigned to another individual….” [Doc, 31-1, p. 7 (ellipsis
supplied)]. The Administration stated its sincere regret for “the error and the problems and
inconvenience [Ms. Silva] experienced.” [Id.].
After notifying the Administration that she intended to sue and receiving an administrative
denial, Ms. Silva filed her initial Complaint in this Court on December 13, 2017. [Doc. 1]. Her
operative Complaint states three claims. [See Docs. 23, 26]. First, Ms. Silva alleges that the Social
Security Administration employee who issued her (the already-issued) social security number had
a duty to ensure its accuracy. [Doc. 23, p. 3] Second, she claims that a second Administration
employee had a duty to verify the first employee’s actions to ensure accuracy. [Id.]. Third, Ms.
Silva states that the Administration had a duty to notice the discrepancies in her retirement earnings
as wages were earned and correct its mistake(s). [Id.; see also Doc. 23, p. 4]. As relief, she asks

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that the Court hold the government accountable for its “deliberate indifference and negligent
errors” affecting her privacy rights through an award of damages pursuant to the Federal Tort
Claims Act and an order requiring the Administration to contact all private credit reporting and
governmental agencies to replace the incorrect number with the correct one. [Doc. 23, p. 8].
The government filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) on July 25, 2019, claiming that Ms. Silva’s claims are barred because the
United States did not waive sovereign immunity under the FTCA. [Doc. 31, p. 5]. First, the
government argued that Ms. Silva’s claims arise under the Social Security Act, not the Tort Claims
Act, leaving the Court without subject matter jurisdiction. [Id., pp. 5-7]. Second, the government
argued that Ms. Silva’s claims sound in defamation, which is excepted from the Tort Claims Act’s
waiver of immunity. [Id., pp. 7-8]. Third, it argued that Ms. Silva’s claims were untimely. [Id., pp.
8-10]. Finally, the government argued that Ms. Silva’s claims are not cognizable under New
Mexico law, precluding its liability under the Federal Tort Claims Act’s waiver. [Doc. 31, pp. 1015]. Ms. Silva responded to the motion on August 5, 2019 and submitted additional evidence on
December 2, 2019. [Docs. 34, 40].
Finding the government’s timeliness argument persuasive, I recommended that Ms. Silva’s
claims be dismissed without prejudice for lack of federal subject matter jurisdiction on May 16,
2020. [Doc. 42]. Ms. Silva objected, and presiding District Judge Vazquez sustained her objections
on July 20, 2020. [Docs. 43, 44]. Judge Vazquez accordingly rejected my proposed disposition of
this case and remanded the matter to me for further analysis of the issues raised by the
government’s motion to dismiss. [Doc. 44, p. 1].

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III.

LEGAL STANDARDS
The government’s Motion asserts that this case must be dismissed for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). [Doc. 31, p. 4]. Federal courts
are courts of limited jurisdiction, and they must presume that they lack jurisdiction unless the party
invoking federal jurisdiction proves otherwise. See Kucera v. Central Intelligence Agency, 754 F.
App’x 735, 738 (10th Cir. 2018) (unpublished). While filings of pro se litigants are afforded liberal
construction, all pleadings are held to this standard. Id. “Rule 12(b)(1) motions generally take one
of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject
matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is
based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citation omitted). “On a facial
attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6)
motion: the court must consider the complaint's allegations to be true.” De Baca v. United States,
403 F. Supp. 3d 1098, 1113 (D.N.M. 2019) (Browning, J.) (citation omitted). The Court finds that
the government’s jurisdictional arguments invoking sovereign immunity do not require analysis
of the facts underlying Ms. Silva’s claims; therefore, resolution of this case turns on the allegations
stated in the complaint. Garling v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1293 n.3
(10th Cir. 2017) (“[W]hen a defendant asserts that [a] FTCA complaint fails to allege sufficient
facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule
12(b)(6) and assume the truthfulness of the facts alleged.”) (quoted authority omitted).
The government’s motion also relies on Federal Rule of Civil Procedure 12(b)(6), which
permits dismissal of a plaintiff’s case for failure to state a claim only on review of the facts as
alleged. [See generally Doc. 31]. That is, when resolving motions brought under Rule 12(b)(6),
the Court accepts as true all well-pleaded factual allegations in the Complaint and views them in

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the light most favorable to Ms. Silva, drawing all reasonable inferences in her favor. See Garling
v, 849 F.3d at 1292-1293. In other words, the Court may only dismiss a case for failure to state a
claim under Rule 12(b)(6) where a reasonable person could not plausibly conclude that the facts
alleged could result in a finding of liability. See 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.”).
IV.

ANALYSIS
While I recommend that the Court find that the government has a dispositive jurisdictional

argument, it has another argument which is not dispositive. I address that argument first.
A) The government’s argument, that Ms. Silva’s claims arise under the Social Security
Act (because it issues social security numbers and maintains social security records)
thereby precluding her suit under the Federal Tort Claims Act, should be rejected.
The United States’ position that Ms. Silva’s claims are barred under the FTCA because
they arise under the Social Security Act should be rejected. [Doc. 31, pp. 5-7]. The First Circuit
found the government’s position as argued here “unacceptable” in Jimenez-Nieves v. U.S., 682
F.2d 1, 3-4 (1st Cir. 1982). There, the government raised the same type of argument it does here –
that the FTCA claim was excepted by Section 405(h) of the Social Security Act. Id. The appellate
court held that some of Jimenez-Nieves’ claims did indeed fall within the 405(h) exception, but
not the allegation that an agency employees’ negligent typographical error caused the government
to dishonor benefit checks. Id. at 2-3. The court determined that “[t]he language of § 405(h) [of
the Social Security Act] applies only to a ‘claim arising under th[at] subchapter[]’ [and] [a]n action
for damages based on a tort committed in the course of administering the Social Security Act does
not arise” under the Act. Id. at 3-4. The allegation of negligence, therefore, merited further
examination by the district court for possible recovery under the tort law of Puerto Rico. Id. at 6.

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While Jimenez-Nieves is not binding on this Court, its reasoning is highly persuasive. As
the First Circuit noted, the government’s rationale would effectively abolish a victim’s ability to
sue the United States’ under the FTCA anytime another statutory or regulatory scheme applies
because of the procedural requirements and unique discretion implicated by administrative review.
See 682 F.2d 1 at 3. The better rule is that a tort, otherwise actionable under the FTCA but
committed in the course of administering a different federal law, does not arise under the latter act
for the purposes of excepting the claim from review as a matter of federal jurisdiction. The ultimate
jurisdictional analysis for a tort committed while administering a federal program is whether it is
within the waiver of sovereign immunity in the FTCA.
B) Ms. Silva’s claims are barred by an exception to the FTCA’s waiver of liability,
requiring dismissal for want of federal subject matter jurisdiction.
The FTCA states that “[t]he United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the same extent as a private individual under
like circumstances[.]” 28 U.S.C. § 2674. “If a claim against the government falls within an
exception to the FTCA, the cause of action must be dismissed for want of federal subject matter
jurisdiction.” Estate of Trentadue ex rel. Aguilar v. U.S., 397 F.3d 840, 853 (10th Cir. 2005)).
There are many exceptions to the government’s tort liability due to the discretionary nature of
many government actions, but the United States does not invoke those here. Instead, it cites the
exception of Section 2680(h) disallowing “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights[]”. 28 U.S.C. § 2680(h).
As noted, Ms. Silva’s claim is that an Administration employee negligently issued a Social
Security Number that already belonged to another individual; a second employee negligently
reviewed the first employee’s actions, failing to detect the error; and subsequent employees failed
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to recognize and correct the error(s) in subsequent years. [See Doc. 23]. Ms. Silva does not label
these claims, but federal and New Mexico case law indicate that they sound in defamation,
negligent misrepresentation, interference with contractual rights, and negligent or intentional
infliction of emotional distress based on the injuries to reputational and economic interests for
which Ms. Silva is claiming damages.
i.

Defamation (Libel & Slander):

Ms. Silva’s claims seek to recover for injuries to her economic and personal reputation due
to confusing her financial history with the negative history of another. While the Administration
did not affirmatively spread lies about Ms. Silva, its negligent association of two identities was to
the detriment of her financial reputation. Defamation is excepted from the FTCA waiver of
sovereign immunity by § 2680(h). “The interest served by allowing recovery for defamation … is
the interest of compensating individuals for injury to reputation.” Smith v. Surden, 2012-NMSC010, ¶ 34, 276 P.3d 943. As a result, “[a]ll … claims which involve injury to [Ms. Silva’s]
reputation and the consequent harm suffered by [her] when the Social Security Administration
actions … implicitly communicated defamatory statements about [her] are … barred by the Federal
Tort Claims Act.” Jimenez-Nieves v. U.S., 682 F.2d 1, 3-4 (1st Cir. 1982).
Although not directly on point, the Tenth Circuit held two years after Jimenez-Nieves that
harm to reputation caused by failure of a federal agency to “correct” its records fits within the
FTCA’s exception for defamation. Bergman v. U.S., 751 F.2d 314, 317 (10th Cir. 1984). Other
circuits have issued similar holdings. For example, the Eighth Circuit reviewed the negligent
maintenance of a CIA agent’s employment records and found that the resulting communication of
false and derogatory information fell within the FTCA defamation exception. Moessmer v. U.S.,
760 F.2d 236, 237-238 (8th Cir. 1985). Likewise, the Fourth Circuit held that a breach of the duty

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to use reasonable care in maintaining the accuracy of personnel records fell within the defamation
exception when harm resulted from untrue communication. Talbert v. U.S., 932, F.2d 1064 (4th
Cir. 1991). As that court said: “[a]rtful pleading cannot alter the fact that [a] claim ‘resounds in
the heartland of the tort of defamation [when] the injury is to reputation [and] the conduct is the
communication of an idea, either implicitly or explicitly.’” Id. (quoting Jimenez-Nieves v. U.S.,
682 F.2d 1, 6 (1st Cir. 1982) (bracketed language supplied)).
Therefore, to the extent that Ms. Silva claims damages to her reputation as a result of the
Administration’s false statements, the United States retains immunity.
ii.

Negligent (and Willful) Misrepresentation:

The Tenth Circuit has defined misrepresentation under the FTCA as violation of the duty
to use care in obtaining and communicating information upon which a party may reasonably be
expected to rely in the conduct of economic affairs. Estate of Trentadue ex rel. Aguilar v. U.S.,
397 F.3d 840, 854-855 (10th Cir. 2005). Proving such a claim requires reliance and pecuniary loss.
Id. As with defamation, harm to reputation caused by failure of a federal agency to “correct” its
records fits within the FTCA’s exception for misrepresentation and deceit. See Bergman v. U.S.,
751 F.2d 314, 317 (10th Cir. 1984). Therefore, to the extent that Ms. Silva claims that she relied
on the misrepresentations of the SSA, resulting in her pecuniary loss, the United States retains
immunity.
iii.

Interference with Contractual Rights:

To the extent that Ms. Silva’s claims state a claim for interference with contract rights, they
are barred by the § 2680(h) exception to the FTCA. The Eighth Circuit case of Moessmer v. U.S.,
760 F.2d 236 (8th Cir. 1985), is analogous. There, the Eighth Circuit reasoned that interference
with prospective economic advantage is the equivalent of a claim for interference with contract

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rights. Id., at 237-38. Ms. Silva claims harm resulting from the Administration’s acts which caused
her to lose out on economic opportunities and advantages she might have otherwise obtained had
she been issued a unique social security number. To the extent that Ms. Silva claims that the
actions of the SSA resulted in interference with her prospective economic advantage, the United
States retains immunity.
iv.

Negligent or Intentional Infliction of Emotional Distress:

Obviously, not all common law claims are barred by the § 2680(h) exception to the FTCA
waiver of sovereign immunity. See Jimenez-Nieves v. U.S., 682 F.2d 1, 6 (1st Cir. 1982).
Intentional infliction of emotional distress is a common example. See, e.g., Estate of Trentadue ex
rel. Aguilar v. U.S., 397 F.3d 840, 854-855 (10th Cir. 2005). However, under New Mexico law,
prosecution of the standalone tort of negligent infliction of emotional distress generally2 requires
the plaintiff to be a bystander who suffers severe emotional shock due to witnessing trauma to a
family member, and recovery for the tort of intentional infliction of emotional distress requires
proof of “socially reprehensible” extreme and outrageous conduct, not mere negligence. Castillo
v. City of Las Vegas, 2008-NMCA-141, 145 N.M. 205, 195 P.3d 870. Therefore, to the extent that
Ms. Silva argues that the SSA’s actions caused her emotional distress, the United States retains
immunity because she has failed to state a valid claim under New Mexico’s formulation of both
negligent and intentional infliction of emotional distress.
V.

RECOMMENDATION
Ms. Silva suffered a wrong at the hands of the federal government and has alleged resulting

financial and emotional harm. The FTCA, however, expressly bars her financial claims, and New
Mexico common law does not recognize her emotional distress claim. Therefore, because I
2

With one exception not relevant here. See Madrid v. Lincoln County Medical Center, 1996-NMSC-049, 122 N.M.
269, 923 P.2d 1154.

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conclude that the Court lacks subject matter jurisdiction over this case, I RECOMMEND that the
United States’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) [Doc.
31] be granted, and that this case be dismissed without prejudice.

______________________________
Jerry H. Ritter
U.S. Magistrate Judge

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the fourteenday period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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