MCNEIL v. SOCIAL SECURITY ADMINISTRATION et al

Filing 63

MEMORANDUM. SIGNED BY HONORABLE PETRESE B. TUCKER ON 8/2/22. 8/2/22 ENTERED AND COPIES E-MAILED.(amas)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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TRACY MCNEIL,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION, et al.,
Defendants.

CIVIL ACTION
NO. 21-2208

MEMORANDUM
Tucker, J.

August 2, 2022

Before the Court are: (1) Motions to Dismiss filed by the Social Security Administration,
United States Department of Treasury, Andrew Saul, John Morenz, Janet Yellen, and Steve
Mnuchin (collectively, “the Federal Defendants”) (ECF Nos. 51 and 52); (2) Plaintiff’s Response
in Opposition to the Motions (ECF No. 55); (3) the Federal Defendants’ Replies in Support of
the Motions (ECF Nos. 57 and 58); and (4) the Parties’ letters to the Court dated May 4, 2022
and June 10, 2022.
For the reasons set forth below: (1) the Federal Defendants’ Motions to Dismiss (ECF
Nos. 51 and 52) are GRANTED; and (2) Plaintiff’s claims against the Federal Defendants are
DISMISSED WITH PREJUDICE.
I. FACTUAL AND PROCEDURAL HISTORY
Tracy McNeil (“Plaintiff”) commenced this action against the United States Social
Security Administration (the “SSA”), the Department of Treasury (“Treasury”), Andrew Saul
(the former Commissioner of the SSA), John Morenz (an Associate Commissioner of the SSA),
Janet Yellen (the Secretary of the Department of Treasury), Steve Mnuchin (the former Secretary
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of Treasury), and three private contracting companies: (1) Northrop Grumman Systems
Corporation; (2) Leidos Holdings, Inc.; and (3) Identity Theft Guard Solutions, Inc. (f/k/a “ID
Experts”). This suit pertains to the federal government’s erroneous handling of Plaintiff’s
identity-related data and its resulting effects.
All Defendants filed Motions to Dismiss Plaintiff’s claims, and the Court resolved the
private Defendants’ motions on March 24, 2022. The Court denied Northrop Grumman Systems
Corporation and Leidos Holdings, Inc.’s Motions to Dismiss without prejudice and directed both
Defendants and Plaintiff to conduct limited jurisdictional discovery. Further, the Court granted
Identity Theft Guard Solutions, Inc.’s Motion to Dismiss and dismissed the company from this
suit. Accordingly, this Memorandum addresses the Federal Defendants’ respective Motions to
Dismiss.
For the sake of clarity, the Court herein adopts relevant portions of its previous recitation
of the facts in its March 24th Order:
The factual basis for this dispute stems from Plaintiff learning—
amidst the onset of the Covid-19 crisis—that federal government
records incorrectly classified her as deceased. A Social Security
Administration (SSA) employee advised Plaintiff that her Social
Security Number was deactivated and added to the SSA’s “Death
Master File,” which is a public record of death information. The
agency erroneously documented Plaintiff as having died on
November 11, 2019—the date of Plaintiff’s mother’s death. By this
time, the SSA already disseminated this inaccurate information to
other federal agencies and private businesses, including her bank.
On several occasions, Plaintiff was advised that the mistaken
reporting was removed from the SSA’s Death Master File and the
issue was resolved. Notably, Plaintiff received a letter dated April
30, 2020 from the SSA, “c/o Defendant ID Experts.” In the letter,
the SSA confirmed that Plaintiff was wrongfully classified as
deceased, apologized for creating this problem, and assured her that
the problem was fixed. Therefore, Plaintiff proceeded with the
understanding that she would not experience any further issues.
Unfortunately, the downstream effects of this problem persisted.
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Despite being informed that she was no longer misclassified,
Plaintiff experienced issues obtaining Covid-19 relief and accessing
other benefits. In particular: (1) she did not receive stimulus checks
from the December 2020 and March 2021 Covid-19 relief packages;
(2) she was not able to file her income taxes, as the IRS also
classified her as deceased; and (3) for six months, she could not
enroll in a healthcare plan, leaving her uninsured for part of the
pandemic.
See ECF No. 59 (internal citations omitted).
On these grounds, Plaintiff filed a claim for damages under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) against the Individual
Federal Defendants, alleging a deprivation of Fifth Amendment life and property interests
without due process. Moreover, she seeks injunctive relief from both the Individual Federal
Defendants and the Federal Agency Defendants. In their respective Motions to Dismiss, all the
Federal Defendants assert that Plaintiff has failed to state a claim for which relief can be granted.
In addition, the Federal Agency Defendants contend that the Court has no subject matter
jurisdiction over this case.
II. STANDARD OF REVIEW
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack
of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may challenge
jurisdiction based on the face of the complaint—a facial attack—or its existence in fact—a
factual attack. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing
Mortensen v. First Fed. Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial
attack contests the sufficiency of the pleadings and the court must view the factual allegations in
the complaint in the light most favorable to plaintiff. Constitution Party of Pa. v. Aichele, 757

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F.3d 347, 358 (3d Cir. 2014). In reviewing a facial attack, a court must only consider the
allegations of the complaint and documents referenced therein. “Thus, a facial attack calls for a
district court to apply the same standard of review it would use in considering a motion to
dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.”
Id.
A factual attack, on the other hand, concerns “the actual failure of [a plaintiff’s] claims to
comport [factually] with the jurisdictional prerequisites.” U.S. ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). “As the party asserting jurisdiction,
[plaintiffs] bear[] the burden of showing that its claims are properly before the district court.”
Dev. Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995). In a
factual attack, a district court may weigh and “consider evidence outside the pleadings.” Gould
Elecs. Inc., 220 F.3d at 176.
B. Rule 12(b)(6)
The purpose of a Rule 12(b)(6) Motion to Dismiss is to test the sufficiency of pleadings.
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The touchstone of that pleading standard is
plausibility. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotations
omitted). Facial plausibility requires more than “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” Id. A plaintiff will not prevail if he
provides only “labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
Instead, the plaintiff must detail “enough facts to raise a reasonable expectation that discovery
will reveal evidence of ‘each necessary element of the claims alleged in the complaint.’” Phillips

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v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556
(2007)).
Applying the Iqbal and Twombly principles, the Third Circuit decided Santiago v.
Warminster Township, 629 F.3d 121 (3d Cir. 2010), in which it set forth a three-part test that
district courts must apply when evaluating whether allegations in the complaint survive a
12(b)(6) motion to dismiss. A court must: (1) identify the elements of the claim; (2) review the
complaint to strike conclusory allegations; and (3) look at the well-pleaded components of the
complaint and evaluate “whether all the elements identified in part one of the inquiry are
sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). If the complaint
fails to do so, the motion to dismiss will be granted.
III. DISCUSSION
A. Bivens Claim Against the Individual Federal Defendants
1. Qualified Immunity
At the outset, the Court notes that the Individual Federal Defendants are entitled to
qualified immunity. Qualified immunity is a defense to Bivens actions, as it “protects a
government official from liability for civil damages as long as his conduct did not violate clearly
established rights of which a reasonable person would have known.” Credico v. Krenitsky, 845 F.
App'x 196, 198 (3d Cir. 2021) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982)). When a qualified immunity defense is raised on a motion to dismiss, the
Court must assess “whether the complaint contains plausible allegations of a constitutional
violation ... and whether the asserted constitutional right is clearly established.” Karkalas v.
Marks, 845 F. App'x 114, 118 (3d Cir. 2021).

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Here, Plaintiff avers that her Fifth Amendment life and property interests were violated
due to the Government’s error. Pl. Resp. in Opp. 19, ECF No. 1. However, the Court finds no
indication that accurate classification in Government records—and its associated benefits—
constitute a “clearly established” right. Accordingly, qualified immunity applies to the Individual
Federal Defendants.
2. Extending Bivens to a New Context
Alternatively, even if the Individual Federal Defendants were not entitled to qualified
immunity, Plaintiff’s claims still cannot proceed. “[A] Bivens claim is brought against the
individual official for his or her own acts, not the acts of others.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1860, 198 L. Ed. 2d 290 (2017). That is, “a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.”
Iqbal, 556 U.S. at 676 (emphasis added). Here, Plaintiff’s Complaint is devoid of any allegations
specifically tying any of the Individual Federal Defendants to the alleged harms. On this basis
alone, Plaintiff fails to state a claim for relief.
And again, even if Plaintiff did sufficiently plead that the Individual Federal
Defendants—via their own actions—violated the Constitution, the Court still could not afford
her any recourse vis-à-vis Bivens. In Bivens, the Supreme Court found “an implied right of action
for damages against federal officers alleged to have violated a citizen’s constitutional rights.”
Hernandez v. Mesa, 137 S.Ct. 2003, 2006 (2017) (citation omitted). Since then, the Supreme
Court has only recognized two additional causes of action under a Bivens claim. See Davis v.
Passman, 442 U.S. 228 (1979) (permitting a Bivens remedy in a Fifth Amendment gender
discrimination case); see also Carlson v. Green, 446 U.S. 14 (1980) (permitting a Bivens remedy
in an Eighth Amendment cruel and unusual punishments clause case). In fact, the Supreme Court

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has established that “expanding the Bivens remedy is now a disfavored judicial activity.” Ziglar,
137 S. Ct. at 1857 (internal quotations omitted). Respecting the importance of separation of
powers between the judicial and legislative branches of government, the Supreme Court advised
lower courts to refrain from implying causes of actions under Bivens in the absence of statutory
authority—that is Congress’ responsibility. Id. at 1856.
Traditionally, courts applied a two-part test to determine the appropriateness of extending
a Bivens cause of action. First, the Court examined whether the claim arises in a “new context”
or involves a “new category of defendants.” Hernandez v. Mesa, 140 S. Ct. 735, 743, 206 L. Ed.
2d 29 (2020). Second, if the claim does indeed arise in a new context, the Court assessed whether
there exists any “special factors counselling hesitation in the absence of affirmative action by
Congress.” Ziglar, 137 S. Ct. at 1857 (internal quotations omitted). However, the Supreme Court
recently reformulated this test. In Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022), the Supreme
Court determined that these two steps can be distilled to one single inquiry; that is, “whether
there is any reason to think that Congress might be better equipped to create a damages remedy.”
Further, the Court specified that if there is even one rational reason to defer to Congress to afford
a remedy, then “a court may not recognize a Bivens remedy.” Id. Practically, the Court
concluded that a rational reason for deference to Congress will exist “in most every case.” Id.
Finally, the presence of an alternative remedial structure counsels against extending
Bivens to a new cause of action. To be sure, the Court may not even determine the adequacy of
the alternative remedy, as this too is a task left to Congress. Id. at 1807. Indeed, “[s]o long as
Congress or the Executive has created a remedial process that it finds sufficient to secure an
adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a
Bivens remedy.” Id. This remains true “even if a court independently concludes that the

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Government’s procedures are ‘not as effective as an individual damages remedy.’” Id. (quoting
Bush v. Lucas, 462 U.S. 367, 372 (1983)).
Here, the Parties dispute whether Plaintiff can make a viable Bivens claim against the
Individual Federal Defendants for the misclassification of her vital status and subsequent failure
to correct this record within a desired timeframe. The Individual Federal Defendants do not
challenge Plaintiff’s allegations of misclassification, rather, they argue that there is no basis for
providing a Bivens cause of action, particularly in light of the Supreme Court’s recent holding in
Egbert. The Court agrees.
Plaintiff seeks damages under Bivens, yet alternative relief is afforded by the Privacy Act
of 1974, 5 U.S.C. § 552a(d)(2). Under the statute, individuals must request the amendment of
records from a federal agency and may only seek judicial review if the agency makes a final,
adverse agency decision. Plaintiff states that the Individual Federal Defendants’ assertion that
there is an administrative remedy available “border[s] on offensive,” given the “shocking amount
of effort” it took to fix this issue. Pl. Resp. in Opp. 11, ECF No. 55. She highlights that she
enlisted the help of numerous people, including staffers at her own US Representative’s office.
Id. The record evidence submitted with the Parties’ briefings does evince Plaintiff’s tiresome
efforts to resolve this matter. Still, these efforts do not negate the fact that an opportunity for
recourse under the Privacy Act of 1974 was available. Additionally, to the extent that Plaintiff
still contests the amount of funds that the IRS should have disbursed to her, she can initiate a tax
refund suit against the agency, pursuant to 26 U.S.C § 7422.
The Court does not trivialize the consequences suffered by Plaintiff due to the
Government’s misclassification, as well as the apparently arduous process Plaintiff undertook to
correct the errors. But as a matter of law, these unfortunate circumstances are insufficient to

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extend Bivens to this new context. The existence of alternative remedies indicates that Congress
has likely contemplated allowing a damages remedy for record misclassification and perhaps
decided against it. Congress instead provided alternative remedies to address such issues, as well
as an opportunity for judicial review in cases of adverse final actions. The fact that Plaintiff
deems the remedies unsatisfactory is irrelevant to a Bivens inquiry. Accordingly, the Court
declines to create a new Bivens cause of action and dismisses this claim against the Individual
Federal Defendants with prejudice.
B. Claim for Injunctive Relief Against all Federal Defendants
Plaintiff seeks the following injunctive relief against the SSA, Commissioner Saul, and
Associate Commissioner Morenz:
a. assurance that any and all records of Plaintiff being deceased
have been removed from the Death Master File;
b. A written letter to each and every federal agency’s office of
legal counsel instructing said agency to properly classify
Plaintiff’s vital status (requested in forthcoming petition for
injunctive relief);
c. A signed statement from SSA for Plaintiff to keep on her person
advising that she had been misclassified as deceased by the
agency, for Plaintiff to have in the event another entity believes
her to be deceased (requested in the forthcoming petition for
injunctive relief); and
d. A detailed report to Plaintiff how her social security number
was misclassified and why the error was not corrected when it was
initially investigated
Pl. Compl. 20, ECF No. 1.
Further, Plaintiff seeks the following injunctive relief against Treasury and
Secretary Yellen:
a. Treasury Defendants should be compelled to issue to Plaintiff
McMeil a $600.00 Covid-relief check from the BipartisanBicameral Omnibus COVID Relief Deal of December 2020…;
b. Treasury Defendants should be compelled to issue to Plaintiff
McNeil a $1400.00 Covid-relief check from the American Rescue
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Plan of 2021 …;
c. Treasury Defendants should refund to Plaintiff any penalty
assessed or levied against her in connection with the late filing of
taxes; and
d. Treasury Defendants should be compelled to affirmatively
demonstrate that any and all records of Plaintiff being deceased have
been removed from the Treasury/IRS’ Individual Master File and
corrected in any and all agency records…
Pl. Compl. 22, ECF No. 1.
1. Injunctive Relief Against the Federal Agency
Defendants
As a threshold matter, Plaintiff’s claim for injunctive relief against the SSA and Treasury
is barred by sovereign immunity. It is well settled that “[a]bsent a waiver, sovereign immunity
shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471,
475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Indeed, “[a] suit against a Federal agency is a suit
against the United States for the purposes of sovereign immunity.” Ginn v. Burroughs, No. CV.
18-3763, 2018 WL 6522928, at *2 (D.N.J. Dec. 11, 2018) (quoting Hines v. Irvington
Counseling Ctr., 933 F. Supp. 382, 388 (D.N.J. 1996)). Moreover, a federal court does not have
subject matter jurisdiction in such cases without an “express and unambiguous” waiver of
sovereign immunity. See Cudjoe ex rel. Cudjoe v. Dep't of Veterans Affs., 426 F.3d 241, 246 (3d
Cir. 2005) (citation omitted). Finally, “[a] party suing the federal government bears the burden of
establishing that the United States has unequivocally waived its immunity from suit.” United
States v. Schiaffino, 317 F. App'x 105, 106 (3d Cir. 2009).
Here, the SSA and Treasury—and by extension, the United States—are entitled to
sovereign immunity and have not consented to suit in this context. Plaintiff’s Response fails to
discuss sovereign immunity at all, let alone any mention of sovereign immunity being waived.
Nor could she successfully make such an argument, as the Supreme Court has held that Bivens

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actions cannot be brought against federal agencies. See Meyer, 510 U.S. at 472 (holding that
“[t]he logic of Bivens itself does not support the extension of Bivens from federal agents to
federal agencies.”) (emphasis in original). In the absence of any material possibility that the
agencies’ immunity has been waived, the Court lacks subject matter jurisdiction over this
particular dispute. Consequently, the Court dismisses Plaintiff’s claims for injunctive relief
against the SSA and Treasury with prejudice.
2. Injunctive Relief Against the Individual Federal
Defendants
Plaintiff’s claims for injunctive relief cannot proceed against the Individual Federal
Defendants as well, because such relief is unavailable in Bivens actions. “Bivens suits are only
actionable when the plaintiff sues federal officials for monetary damages.” Johnson v. U.S.
Magistrate Susan P. Baxter, No. 1:16-CV-00059, 2016 WL 6892928, at *5 (W.D. Pa. Aug. 4,
2016) (citing Butz v. Economu, 438 U.S. 478, 504-05 (1978)) (emphasis added). It is unclear
whether Plaintiff’s request for injunctive relief is brought pursuant to Bivens, however: (1)
Bivens is the only legal authority referenced in the entire Complaint that she contends the Federal
Defendants violated; and (2) Plaintiff expressly states in her Response that she is not bringing
her claim under the CARES Act or the Administrative Procedures Act. Pl. Resp. in Opp. 19,
ECF No. 55. Thus, to the extent that the request for equitable relief does indeed rely on alleged
Bivens violations, it must be denied.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED AND DECREED that: (1) the
Federal Defendants’ Motions to Dismiss (ECF Nos. 51 and 52) are GRANTED; and (2)
Plaintiff’s claims against the Federal Defendants are DISMISSED WITH PREJUDICE.
An appropriate Order follows.
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