Jones v. Commissioner of Social Security
Filing
14
DECISION AND ORDER denying 7 Motion ; denying 9 Motion for Preliminary Injunction; denying 9 Motion to Expedite; granting 11 Motion to Dismiss for Failure to State a Claim; granting 11 Motion to Dismiss for Lack of Jurisdiction; denying 12 Motion for Recusal ; denying 13 Motion 1. Monroe County Department of Human Services motion to dismiss [#11] is granted, this action is dismissed as to Monroe County, and the Clerk is directed to terminate Monroe County Department of Hum an Services as a party to this action;2. Plaintiffs pending motions [#7][#9][#12][#13] are denied;3. The remainder of this action shall be dismissed unless, within thirty (30) days of the date of this Decision and Order, Plaintiff files an amended co mplaint that clarifies the nature of his objection to the Appeals Councils decision dated April 17, 2017; such amended complaint shall not exceed three (3) pages in length, which is more than sufficient for Plaintiff to succinctly explain the nature of his claim; Plaintiff may also attach a copy of the Appeals Councils April 17, 2017 decision and any ALJ decision to which the Appeals Councils decision specifically refers;4. Along with the amended complaint, Plaintiff shall file a new motion for leave to proceed in forma pauperis; such new application shall include Plaintiffs monthly income from all sources, including any type of government benefits, as well as the monthly income of any members of Plaintiffs household (such application must be either typed or completed in clearly legible handwriting); the prior order [#5] granting Plaintiff leave to proceed in forma pauperis is vacated inasmuch as it is now clear that the Court did not have accurate or sufficient information upon which to make the necessary inquiry under 28 U.S.C. § 1915(e)(2) when it issued that order; 5. In the event that Plaintiff fails to file an amended complaint and new application to proceed in forma pauperis within thirty (30) days of the date of t his Decision and Order, the Clerk of the Court is directed to close this action without further order of the Court; and6. In the event that the action is dismissed due to Plaintiffs failure to file an amended complaint and new application to proceed in forma pauperis as ordered above, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Copped ge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. Charles J. Siragusa on 12/11/17. Copy of this decision and order and the NEF mailed to pro se plaintiff at 150 VanAuker Street, Apt 6E,Rochester, NY 14608 (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RUFUS JONES,
Plaintiff,
-vs-
DECISION and ORDER
COMMISSIONER OF SOCIAL SECURITY,
MONROE COUNTY DEPARTMENT OF
HUMAN SERVICES,
Defendant.
17-CV-6558 CJS
INTRODUCTION
This is an action in which Rufus Jones (“Plaintiff”) maintains that the
Commissioner of Social Security and Monroe County Department of Human Services
improperly confiscated Supplemental Security Income benefits from him. Now before the
Court are the following motions: Plaintiff’s application (Docket No. [#7] for miscellaneous
relief; Plaintiff’s motion [#9] for a preliminary injunction and for an expedited hearing;
Monroe County Department of Human Services’ (“Monroe County”) motion [#11] to
dismiss for lack of subject-matter jurisdiction and for failure to state a claim; and Plaintiff’s
motion [#12] for recusal. Plaintiff’s applications are all denied, Monroe County’s motion
to dismiss for lack of subject matter jurisdiction is granted, and this action will be
dismissed unless Plaintiff files an amended complaint within thirty days as discussed
below.
BACKGROUND
The long and complicated history of this action began on January 14, 2015, when
1
Plaintiff filed an action in this Court against the Commissioner of Social Security,
contesting the Commissioner’s denial of his claim for Social Security Disability Insurance
Benefits (“SSDI”) and Supplemental Security Income Benefits (“SSI”). Plaintiff claimed to
be disabled due a combination of medical problems including hypertension, chest pain,
back pain, and a heart condition. Plaintiff filed the case proceeding pro se, then retained
an attorney, and later discharged the attorney and again proceeded pro se. The case,
entitled Jones v. Commissioner of Social Security, 15-CV-6022, was originally before the
undersigned. However, on June 24, 2015, the parties consented to have the Honorable
Jonathan W. Feldman, United States Magistrate Judge, hear and dispose of the case.
(15-CV-6022, Docket No. [#25]).
On January 12, 2016, Magistrate Judge Feldman issued an Order [#37] in
Plaintiff’s favor, granting Plaintiff’s motion for judgment on the pleadings and remanding
the case for further administrative proceedings.1
Upon remand to the Commissioner, an ALJ conducted a second hearing and, on
April 12, 2016, issued a Decision and Order finding that Plaintiff became disabled, for
purposes of both SSDI and SSI, as of April 1, 2014. See, 15-CV-6022, Docket No. [#44]
at pp. 1-4, & Docket No. [#46].
Following that determination, the Commissioner processed Plaintiff’s SSI
payments before the SSDI payments, and determined that Plaintiff was entitled to SSI
1
Magistrate Judge Feldman concluded that the Administrative Law Judge (“ALJ”) had committed
reversible error when evaluating Plaintiff’s credibility. Prior to Magistrate Judge Feldman issuing his
Decision and Order [#37], Plaintiff filed an interlocutory appeal to the United States Court of Appeals for
the Second Circuit, challenging various rulings by Judge Feldman on non-dispositive matters. See, Notice
of Appeal, 15-CV-6022, Docket No. [#35]. On January 13, 2016, the Second Circuit dismissed the appeal.
(15-CV-6022, Docket No. [#40], dismissing appeal in Second Circuit Case No. 15-2704).
2
“back payments” in the amount of $13,896.00. (15-CV-6022, Docket No. [#46] at p. 3.).
In that regard, the Commissioner indicated that Plaintiff was “in current payment status of
SSI,” while
[t]he Title II DIB [SSDI] portion is currently pending in the [Program Service
Center] for necessary action. The Master Beneficiary Record (MBR) will be
updated to reflect payment status and Plaintiff will be notified (i.e. notice will
be issued) once the [Program Service Center] completes its action.
Id. The Commissioner subsequently processed Plaintiff’s SSDI payments.
On January 5, 2017, the Court became aware that Plaintiff was claiming that he
had not received the full amount of SSI back payments. Specifically, on January 5, 2017,
Plaintiff filed a document [#49] in Case No. 15-CV-6022, still assigned to Magistrate
Judge Feldman, asserting that the Commissioner of Social Security had improperly paid
part of his SSI back payments to the “Department of Social Services.” In that regard,
Plaintiff wrote:
Claimant was awarded benefits April 12, 2016; the order stated that Plaintiff
was to be paid 2 years back pay, from April 2014 to April 2016. Claimant
has received half of the back pay the other half of claimant[‘s]] back pay
was sent to Department of Social Services. The Commissioner[‘s] staff
stated that [I] signed an agreement with DSS which is false.
15-CV-6022, Docket No. [#49] at p. 2. Attached to this submission was a copy of a
notice from the Commissioner to Plaintiff, dated May 19, 2016, explaining that $9,838.18
of Plaintiff’s SSI back payments had been paid directly to “Monroe Co DSS,” and stating:
As we told you in another letter, you agreed in writing that the MONROE
CO DSS would be repaid the money it paid you. We paid the MONROE
CO DSS $9,838.18. We have $7,657.82 left to pay you.
3
15-CV-6022, Docket No. [#49] at p. 7 (bold emphasis added).
Also in Plaintiff’s submission [#49], he seems to have complained that the
Commissioner improperly awarded him SSI benefits, rather than SSDI benefits. 15-CV6022, Docket No. [#49] at p. 10. In that regard, Plaintiff stated that he met insured status,
for SSDI, through December 2015, and was found to have become disabled prior to that
date. See, id. at p. 9 (“[F]orcing claimant to receive SSI when he is entitled to SSDI is
clearly a violation.”). Although Plaintiff’s submission does not expressly say so, the
Court liberally construes his assertion in that regard to be that if the Commissioner had
designated his back pay as SSDI payments rather than SSI payments, then Monroe
County would not have been able to recoup any payments from him.
On January 16, 2017, the Commissioner wrote to Magistrate Judge Feldman and
stated that Plaintiff was incorrect, because “the Agency followed its normal protocols
when $9,838.18 was paid to Monroe County Department of Social Services (DSS) as a
result of an Interim Reimbursement Agreement.” 15-CV-6022, Docket No. [#51] at p. 1.
The Commissioner explained that the Social Security Administration had paid the
aforementioned sum to Monroe County as an Interim Assistance Reimbursement (“IAR”),
and further stated:
To participate in the IAR program a State must have an IAR agreement with
SSA and a written authorization from the individual allowing SSA to
reimburse the State from the individual’s SSI retroactive payment. SSA can
reimburse a State only for months for which the individual receives both an
SSI dollar amount and an interim assistance payment.
15-CV-6022, Docket No. [#51] at p. 1. The Commissioner further noted that according to
4
her records, Plaintiff had expressly agreed to the IAR payment to the State of New York
and/or Monroe County:
The New York State electronic notification of Interim Assistance establishes
that the State has a valid authorization. This notification creates a specific
code in SSA’s system informing SSA that the State has a valid
authorization. Attached, is a copy of Mr. Jones’ Supplemental Security
Record (“SSR”), which shows a code at the very bottom denoted as grant
reimbursement code (GRC): R-33370. This was the code that was
generated when New York State informed SSA of the valid agreement from
Monroe County Department of Social Services.
Id. at p. 2 (citation omitted). The Commissioner also stated that if Plaintiff disputed the
existence of an agreement he could “appeal the issue only to the State,” but could not
maintain an action in Federal Court. Id.
On January 20, 2017, Plaintiff filed a submission in which he indicated that he was
receiving SSDI benefits, but nevertheless believed that the Commissioner had first
processed his “SSI benefits as a pretext because they are well aware of the fact that DSS
cannot take SSDI benefits for repayment of DSS.” 15-CV-6022, Docket No. [#52] at p. 1.
Plaintiff also reiterated that he had not signed a reimbursement agreement with the
Monroe County. Id. at p. 6. On March 13, 2017, Plaintiff wrote to the Court again,
reiterating that the Commissioner had committed “fraud” by “trying to force [him] to take
SSI benefits when [he was] legally eligible for SSDI benefits.” 15-CV-6022, Docket No.
[#53] at p. 1.
On March 23, 2017, Magistrate Judge Feldman issued an Order [#54] finding, inter
alia, that he lacked jurisdiction over Plaintiff’s complaint about the improper payment of
his back SSI payments to Monroe County, pursuant to 42 U.S.C. § 1383(5), which
5
“exempt[ed] from judicial review ‘any disagreement concerning payment by the
Commissioner of Social Security to a State pursuant’ to an inter reimbursement
agreement.” 15-CV-6022, Docket No. [#54] at p. 3. Judge Feldman stated that pursuant
to 20 C.F.R. § § 416.1920 & 416.1922, Plaintiff could appeal to the State of New York or
the Commissioner of Social Security, respectively, about the issue, but “not this Court.”
Id. (“While Plaintiff may pursue his claims with the SSA or with the State, he cannot do so
here.”).
Plaintiff appealed Magistrate Judge Feldman’s ruling to the Second Circuit [#55].
As part of the Second Circuit’s evaluation of Plaintiff’s appeal, the Circuit Court noted that
Plaintiff had filed an “untimely reply”2 “challeng[ing] an April 17, 2017 decision of the
Social Security Appeals Council.” Second Circuit Order, 17-879, 15-CV-6022 Docket No.
[#57]. More specifically, Plaintiff asserted that the Appeals Council had “failed to address
the issue of Due Proceeds [sic] which was clearly presented.” Id. at p. 2. Plaintiff’s
“untimely reply” attached only two pages of the Appeals Council’s decision (which was
apparently six pages in length), but he characterized his claim to the Appeals Council as
being that “the Commissioner[‘s] staff local Team 108 denied [him] Substantive Due
Process by process claimant for SSI when the record Evidence shows that claimant
Rufus Jones was only eligible for SSDI insurance benefits.” Id. at p. 2.
In response to that assertion, the Second Circuit issued an Order transferring that
claim to this Court. See, Second Circuit Order, 17-879, 15-CV-6022 Docket No. [#57].
Specifically, the Second Circuit’s Order stated:
2
Second Circuit case no, 17-879, document 45.
6
Appellant has filed in this Court a document, an untimely reply, showing that
he seeks to challenge an April 17, 2017 decision of the Social Security
Administration’s Appeals Council. 2d Cir. 17-879, doc. 45. However, he
may challenge the Appeals Council decision only by filing a complaint in the
district court. 42 U.S.C. § 405(g). Because Appellant is proceeding pro se
and the time to file such a complaint in the district court has now expired, it
is further ORDERED that the Appellant’s submission, 2d Cir. 17-879, doc.
45, is TRANSFERRED to the district court with instructions to treat it as a §
405(g) complaint and open a new docket number. This transfer is without
prejudice to the Commissioner arguing that the complaint, so construed, is
untimely or is otherwise defective.
Id. A certified copy of the Second Circuit’s Order was filed in this Court on August 9,
2017.
On August 11, 2017, the Clerk of this Court opened a new action under the docket
number 17-CV-6558 CJS, which was assigned to the undersigned. The Clerk of the
Court subsequently issued a subpoena to Plaintiff, directed to the Commissioner of
Social Security. Subsequently and without the Court’s prior knowledge, Plaintiff,
proceeding pro se, added the Monroe County Department of Human Services to the
summons. Plaintiff claims that he subsequently served the summonses on the
Commissioner of Social Security and the Monroe County Department of Human
Services.
On September 14, 2017, Plaintiff filed a document [#4] entitled “Notice of
Complaint and Brief to Support Exhibits Attached.” The filing references 42 U.S.C. §
1983 and alleges that the Commissioner of Social Security and Monroe County violated
Plaintiff’s “constitutional rights to all insurance benefits and civil rights.” The document
further demands that the Commissioner or Monroe County refund $9,838.18 to him.
7
On October 3, 2017, Monroe County filed an Answer [#6]. The Commissioner, on
the other hand, has never answered or otherwise appeared in the action.
On October 10, 2017, Plaintiff filed a Motion for Miscellaneous Relief [#7],
apparently in response to the First Affirmative Defense in Monroe County’s Answer,
which asserted that the action should be dismissed for failure to state claim. Plaintiff’s
motion contends that Monroe County violated 42 U.S.C. § 407 by refusing to reimburse
him $9,838.18. The motion also, without any apparent basis, asserts that employees of
the Monroe County Attorney’s office should be fine or imprisoned for contempt and
perjury. In describing his action, Plaintiff states: “This complaint is very simple does the
County have legal rights to Rufus Jones Social Security Insurance benefits? I demand
that the County Attorney proves [sic] this request immediately or refunds the money back
to Social Security or to Rufus Jones.” Attached to this submission are certain documents
that had been filed previously in the action before Magistrate Judge Feldman, 15-CV6022.
On October 30, 2017, Plaintiff filed a Motion for Preliminary Injunction and
Expedited Hearing [#9], essentially reiterating the same claim, namely, that the
Commissioner had improperly “allowed Monroe County” to “attach” his benefits, in “clear
and intentional violation” of 42 U.S.C. § 407(a). The “injunctive relief” demanded was
that Plaintiff be immediately refunded $9,838.18.
On November 20, 2017, Monroe County filed a motion to dismiss [#11], for lack of
subject matter jurisdiction and for failure to state a claim. Preliminarily, the County
maintains that the Court lacks subject matter jurisdiction over the claims against the
8
County “because [the] Social Security Act expressly prohibits judicial review of
disagreements relating to IAR payments,” pursuant to 42 U.S.C. § 1383(g)(5), and
because “the statutes relied upon by Plaintiff,” such as 42 U.S.C. § 407, “afford no private
cause of action,” while 42 U.S.C. § 1983 provides no independent right to sue. The
County further states that its recoupment of Plaintiff’s social services benefits from his
SSI back payment does not constitute a violation of 42 U.S.C. § 407 in any event, since
such recoupment is not an “execution, levy, attachment, garnishment, or other legal
process” as prohibited by that statute. The County also contends that Plaintiff is
mistakenly attempting to sue the Monroe County Department of Human Services, which
does not administer public assistance benefits, when he apparently means to sue the
Monroe County Department of Social Services.
The County further asserts that Plaintiff’s claim lacks merit in any event, since he
agreed in writing on multiple occasions to allow the County to recover amounts that it had
paid to him through social services from any back payment of SSI benefits that he might
receive. The County has submitted copies of such authorizations, including one
purportedly signed by Plaintiff on April 25, 2014. (Docket No. [#10-6] at p. 16).
The County further indicates that Plaintiff has already been afforded a “fair
hearing” concerning this same dispute by a New York State Office of Temporary
Disability Assistance Administrative Law Judge, pursuant to 18 N.Y.C.R.R. § 387.20(d),
at which the Administrative Law Judge determined that the County was entitled to receive
$9,838.18 from Plaintiff’s SSI back payments. In that regard, the County attached a copy
of a decision from the New York State Office of Temporary and Disability Assistance,
9
issued after the fair hearing in Plaintiff’s case, finding, for example, the following facts: 1)
Plaintiff received public assistance benefits (Safety Net Cash Assistance) between May
2014 and May 2016; 2) Plaintiff signed recertification applications for public assistance,
containing authorizations for the Commissioner to reimburse DSS from retroactive SSI
benefit payments, on April 25, 2014, October 21, 2014, November 17, 2014, April 16,
2015, September 22, 2015, October 20, 2015 and April 21, 2016; and 3) DSS “was
entitled to repayment of interim assistance in the amount of $9,838.18 from [Plaintiff’s
SSI] retroactive benefits payment.” Docket No. [#10-8] at pp. 2, 9.
On November 27, 2017, Plaintiff responded by filing a document [#12] designated
as a “Notice of Reply Response to Monroe County’s Second Request to Dismiss, Notice
Request for Another Judge.” Regarding the issue of subject matter jurisdiction, Plaintiff
asserts that the Court has jurisdiction under 42 U.S.C. § 405(g), and that the County’s
argument is “a false statement,” since the Second Circuit directed the Court to open this
action. Indeed, regarding the County’s submission, Plaintiff states that “the only thing
presented are lies and false statements,” though he does not explain why the County’s
factual assertions are incorrect. Plaintiff has also contacted the Court by telephone on
numerous occasions to request a prompt resolution of his claim.
On December 5, 2017, Plaintiff filed another submission [#13], which the Clerk
designated as a “motion for miscellaneous relief.” The submission essentially reiterates
Plaintiff’s view that he should be entitled to sue Monroe County to recover the portion of
his SSI back payments which the Commissioner paid to the County.
10
DISCUSSION
Plaintiff’s Pro Se Status
As an important preliminary matter, the Court notes that because Plaintiff is
proceeding pro se, it has construed his submissions liberally to raise the strongest
arguments that they suggest.
Motion for Recusal
Plaintiff’s most recent submission [#12] can be construed as a motion for the Court
to recuse itself, inasmuch as it refers to a “request for another judge,” and states that “on
the grounds of past relations it would be the best interest for the Judge and the Plaintiff
[to] request another Judge be assigned.” Although, those brief assertions are the extent
of Plaintiff’s argument concerning recusal. Plaintiff’s mention of “past relations” with the
Court is apparently a reference to the fact that he has had other matters before the Court.
The Court has searched its records and sees, for example, that the Court previously
presided over an employment discrimination action filed by Plaintiff, Jones v. University of
Rochester, 11-CV-6184 CJS, in which Plaintiff also filed a motion for recusal, alleging
that the Court had “shown no respect” for the rules of civil procedure or for “landmark
legal precedent.” Plaintiff’s contentions in that regard were not accurate, and the Court
consequently denied that application. The Court similarly denies the instant application
for recusal, as Plaintiff has not identified any legitimate reason for the Court to recuse
itself in this action. Accordingly, Plaintiff’s motion for recusal [#12] is denied.
The Motion to Dismiss for Lack of Subject Matter Jurisdiction
The County maintains, inter alia, that the Court lacks subject matter jurisdiction
11
over Plaintiff’s claims against the County, and the applicable legal principles are well
settled. “A complaint must be dismissed under Rule 12(b)(1) ‘when the district court
lacks the statutory or constitutional power to adjudicate’ the case.” McMillan v. N.Y. State
Bd. of Elections, 449 Fed.Appx. 79, 80 (2d Cir. 2011) (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)). The standard to be applied on such a motion is
as follows:
In resolving a motion to dismiss under Rule 12(b)(1), the district court must
take all uncontroverted facts in the complaint (or petition) as true, and draw
all reasonable inferences in favor of the party asserting jurisdiction. But
where jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the
pleadings, such as affidavits. In that case, the party asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence
that it exists.
Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(citations and internal quotation marks omitted).
The instant case was opened at the direction of the Second Circuit, which
specifically described the claim being transferred to this Court as a “challenge [to] an
April 17, 2017 decision of the Social Security Administration’s Appeal Council,” pursuant
to 42 U.S.C. § 405(g). Therefore, the proper defendant is the Commissioner of Social
Security. Notably, the Second Circuit said nothing about a claim against Monroe County
or the Monroe County Department of Human Services, even though the Circuit Court was
aware that Plaintiff was complaining of actions by those entities. More specifically, the
Second Circuit did not transfer any claim to this Court concerning Plaintiff’s contention
that Monroe County had improperly obtained $9,838.18 of his SSI back payment.
12
Rather, the Monroe County Department of Human Services is nominally a party to
this action only because after the Court issued a summons for the Commissioner of
Social Security, Plaintiff took it upon himself to add Monroe County to the summons, and
to serve the summons upon the County. Such action by Plaintiff was improper for at
least two reasons. First, it exceeded the scope of the Second Circuit’s Order. As already
discussed, the claim which the Second Circuit transferred to this Court was quite
specifically a challenge under § 405(g) to the Appeals Council’s April 17, 2017 decision,
which does not involve Monroe County. Second, Plaintiff’s attempt to add Monroe
County to this action was improper because it ignored Magistrate Judge Feldman’s ruling
[#54] in case number 15-CV-6022 that this Court lacks jurisdiction over that type of claim.
Although Plaintiff appealed that ruling, it appears that the Second Circuit has now
dismissed that appeal due to Plaintiff’s failure to perfect. (Second Circuit CM/ECF,
Docket No. 17-879, Order [#67] dated November 9, 2017, dismissing appeal).
In any event, the Court agrees with both Magistrate Judge Feldman and the
County that pursuant to 42 U.S.C. § 1383(g)(5) it lacks subject matter jurisdiction over
Plaintiff’s attempt to recoup the $9,838.18 that was deducted from his SSI back payment.
In that regard, 42 U.S.C. § 1383 generally deals with the “procedure for payment of [SSI]
benefits.” Significantly, § 1383(g)(1) expressly authorizes the Commissioner to withhold
SSI benefits from a claimant and pay them to a state or political subdivision as
reimbursement for interim assistance provided to the claimant by the state or political
subdivision, provided that the claimant has provided “authorization.” As discussed
above, Monroe County indicates that Plaintiff provided such authorization on multiple
13
occasions as a condition of receiving interim assistance payments.
However, specifically with regard to this Court’s jurisdiction, § 1383(c) provides
procedures for the Commissioner to conduct hearings concerning SSI applications, and
further provides for federal court review of the Commissioner’s decisions in various
instances. See, 42 U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of
Social Security after a hearing under paragraph (1) shall be subject to judicial review as
provided in section 405(g) of this title to the same extent as the Commissioner's final
determinations under section 405 of this title.”). However, § 1383(g)(5) then states, in
pertinent part:
The provisions of subsection (c) of this section shall not be applicable to
any disagreement concerning payment by the Commissioner of Social
Security to a State pursuant to the preceding provisions of this subsection
nor the amount retained by the State (or political subdivision).
42 U.S.C.A. § 1383 (West) (emphasis added).
Here, Plaintiff’s claim is primarily, if not exclusively, a claim concerning payment of
SSI benefits by the Commissioner to the State of New York or one of its political
subdivisions (Monroe County), and the retention of SSI benefits by such political
subdivision. Accordingly, this Court lacks jurisdiction to review such claim. See, e.g.,
Barker v. Colvin, No. 15-35128, 671 Fed.Appx. 546 (9th Cir. 2016) (“The district court
also correctly concluded that it lacked jurisdiction to review the reimbursement of interim
assistance payments made to the State of California. The Social Security Act expressly
provides that the decision to withhold SSI payments for the purpose of reimbursing states
for interim assistance is not subject to judicial review. 42 U.S.C. § 1383(g)(5).”).
14
Indeed, this Court lacks such jurisdiction even where, as here, Plaintiff disputes3
that he authorized the Commissioner to make such payment to Monroe County. See,
Warren v. Roberts, No. 15 CIV. 7850 (NRB), 2017 WL 2782176, at *9 (S.D.N.Y. June 12,
2017)(“Consistent with the courts that have squarely addressed the question, we believe
that Section 1383(g)(5) demonstrates Congress's intent to preclude judicial review of
claims such as plaintiffs'. While plaintiffs' claims challenge the adequacy of the
authorizations they signed, the claims also fundamentally represent a ‘disagreement
concerning payment by the Commissioner of Social Security to a State pursuant to the
preceding provisions of this subsection [and] the amount retained by the State (or political
subdivision).’ 42 U.S.C. § 1383(g)(5).”).
Moreover, the Court agrees with Monroe County that 42 U.S.C. § 407(a), upon
which Plaintiff relies, does not provide an independent basis for the Court to exercise
jurisdiction over Plaintiff’s claim that Monroe County “garnished” his SSI benefits. On this
point, another Judge in this District has stated:
[P]laintiff does not assert any federal statutory basis for federal court
jurisdiction in this case. While 42 U.S.C. § 407(a) of the Social Security Act
provides that “[t]he right of any person to any future payment under this
subchapter shall not be transferable or assignable, at law or in equity, and
none of the moneys paid or payable or rights existing under this subchapter
shall be subject to execution, levy, attachment, garnishment, or other legal
process, or to the operation of any bankruptcy or insolvency law,” the law
does not expressly create a private right of action to address violations.
3
The Court uses the word “disputes” loosely, since Plaintiff offers only bare assertions to that
effect, while failing to address the voluminous documentary evidence to the contrary.
15
None of the Circuit Courts of Appeals have expressly ruled on the issue.4
However, virtually all of the District Courts that have done so have held that
§ 407 does not create a private right of action.
Strine v. Genesee Valley Fed. Credit Union, No. 11CV633A, 2013 WL 636469, at *2
(W.D.N.Y. Jan. 29, 2013) (citations omitted, collecting cases), report and
recommendation adopted, No. 11-CV-633A, 2013 WL 636714 (W.D.N.Y. Feb. 20, 2013).
For all of the foregoing reasons, the Court finds that Monroe County’s motion to
dismiss for lack of jurisdiction must be granted.
Plaintiff’s Claim Against the Commissioner under § 405(g)
As delineated by the Second Circuit’s transfer order, the claim remaining before
the Court is a challenge to an April 17, 2017 decision of the Social Security
Administration’s Appeals Council, pursuant to 42 U.S.C. § 405(g). Unfortunately, the
exact nature of that claim is still unclear, in part because this Court has neither the
decision of the Appeals Council, nor the underlying decision by the ALJ. As noted earlier,
the transfer order from the Second Circuit included only two pages of the Appeals
Council’s decision. In sum, it is not entirely clear what Plaintiff is complaining about with
regard to the Appeals Council’s April 17, 2017 decision.
It appears, however, that Plaintiff is complaining that the Commissioner improperly
found him eligible to receive both SSI and SSDI benefits, and/or that the Commissioner
4
But see, Townsel v. DISH Network L.L.C., 668 F.3d 967, 969 (7th Cir. 2012), in which the
Seventh Circuit indicated that there is no private right of action: “Logically the first question is whether §
407(a) creates a private right of action. It does not do so expressly, nor does any other statute authorize
private parties to sue for damages based on assignments of Social Security benefits.”
16
improperly processed his SSI back payment prior to any SSDI back payment, in order to
facilitate recoupment of the interim assistance reimbursements by Monroe County. If that
is what Plaintiff is maintaining, his claim lacks merit, since the Commissioner did nothing
wrong. Indeed, Plaintiff applied for both SSI and SSDI benefits, and the Second Circuit
has expressly held that the Commissioner’s policy of processing SSI back payments
before SSDI payments, in order to maximize reimbursements to states for interim
assistance payments, is a proper exercise of the Commissioner’s discretion and does not
violate 42 U.S.C. § 407. White v. Bowen, 835 F.2d 974, 978-979 (2d Cir. 1987); see also,
Guadamuz v. Bowen, 859 F.2d 762, 770 (9th Cir. 1988) (favorably discussing the Second
Circuit’s ruling in White v. Bowen).
Nevertheless, the Court will grant Plaintiff an opportunity to clarify the nature of his
claim concerning the Appeals Council’s April 17, 2017 decision, by filing an amended
complaint as set forth below.
ORDER
Accordingly, it is hereby ORDERED that:
1. Monroe County Department of Human Services’ motion to dismiss [#11] is
granted, this action is dismissed as to Monroe County, and the Clerk is directed to
terminate Monroe County Department of Human Services as a party to this action;
2. Plaintiff’s pending motions [#7][#9][#12][#13] are denied;
3. The remainder of this action shall be dismissed unless, within thirty (30) days of
the date of this Decision and Order, Plaintiff files an amended complaint that clarifies the
nature of his objection to the Appeals Council’s decision dated April 17, 2017; such
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amended complaint shall not exceed three (3) pages in length, which is more than
sufficient for Plaintiff to succinctly explain the nature of his claim; Plaintiff may also
attach a copy of the Appeals Council’s April 17, 2017 decision and any ALJ decision to
which the Appeals Council’s decision specifically refers;
4. Along with the amended complaint, Plaintiff shall file a new motion for leave to
proceed in forma pauperis; such new application shall include Plaintiff’s monthly income
from all sources, including any type of government benefits, as well as the monthly
income of any members of Plaintiff’s household (such application must be either typed or
completed in clearly legible handwriting); the prior order [#5] granting Plaintiff leave to
proceed in forma pauperis is vacated inasmuch as it is now clear that the Court did not
have accurate or sufficient information upon which to make the necessary inquiry under
28 U.S.C. § 1915(e)(2) when it issued that order;
5. In the event that Plaintiff fails to file an amended complaint and new application
to proceed in forma pauperis within thirty (30) days of the date of this Decision and Order,
the Clerk of the Court is directed to close this action without further order of the Court;
and
6. In the event that the action is dismissed due to Plaintiff’s failure to file an
amended complaint and new application to proceed in forma pauperis as ordered above,
the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a
poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further
requests to proceed on appeal as a poor person should be directed, on motion, to the
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United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
DATED:
December 11, 2017
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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