CHESBRO v. MARTIN
Filing
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MEMORANDUM OPINION re 38 Second MOTION to Dismiss for Lack of Jurisdiction; MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by UNITED STATES OF AMERICA. Signed by Judge Susan Paradise Baxter on 06/30/2020. (esa)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARSHA M. CHESBRO,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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Case No. 1:18-cv-88-SPB
MEMORANDUM OPINION
This pro se civil action was commenced by Plaintiff Marsha M. Chesbro in a magisterial
district court in Erie County, Pennsylvania, on February 2, 2018. ECF No. 6-2. The underlying
dispute in this case stems from the SSA’s efforts to recover monthly old-age benefits that were
paid to Plaintiff after she returned to work without notifying the SSA.
Presently pending before the Court is the Second Motion of the United States to Dismiss
Plaintiff’s Complaint. See ECF No. 38. For the reasons that follow, the Court will grant the
Government’s motion to dismiss for lack of jurisdiction. The Government’s alternative motion
to dismiss for failure to state a claim will be dismissed as moot.
I.
STANDARD OF REVIEW
When a defendant moves to dismiss a claim for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), the court must determine whether the defendant is
making a “facial or factual challenge to the court’s subject matter jurisdiction.” Gould Elecs.,
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). “In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents referenced therein and attached thereto,
in the light most favorable to the plaintiff.” Id. On the other hand, a factual attack challenges the
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trial court’s “very power to hear the case.” Mortensen, 549 F.2d at 891. Accordingly, “the trial
court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Id. “[N]o presumptive truthfulness attaches to plaintiff’s allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” Id. In either situation, it is the plaintiff’s burden to demonstrate the
existence of subject matter jurisdiction. See Lee v. Janosko, No. 2:18-CV-01297, 2019 WL
2392661, at *2 (W.D. Pa. June 6, 2019) (“The plaintiff has the burden of establishing that the
court has subject matter jurisdiction, . . . and the defendant can challenge whether the plaintiff
has done so, through either a facial challenge or a factual challenge to the complaint.”) (citations
omitted).
In this case, the Government’s motion to dismiss involves both facial and factual
challenges to the Court’s jurisdiction. With respect to the latter, both parties have submitted
evidence outside the pleadings, which this Court is free to consider and weigh in determining
whether it has subject matter jurisdiction. Gould Elecs., 220 F.3d at 178. A review of the
relevant factual history follows.
II.
BACKGROUND
As recounted by this Court in a previous opinion, Plaintiff applied for, and was granted,
old-age benefits from the SSA in 2010. ECF No. 29 at 3; see ECF No. 22-1, ¶13. At some point
after she began to receive these benefits, Plaintiff returned to work. Id. The Government
contends that Plaintiff’s earnings made her ineligible for a portion of the benefits that she
received between 2010 and 2013. Id. Accordingly, the SSA sent notices to Plaintiff on June 19,
2012 and August 30, 2012, informing her of the alleged overpayment. ECF No. 29 at 3; see ECF
No. 39-1, ¶6. Eventually, the SSA recouped the overpayment by withholding amounts from
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Plaintiff’s monthly benefits and by applying certain underpayments against the outstanding
balance. ECF No. 29 at 3; see ECF No. 39-1, ¶7.
Plaintiff sought reconsideration of the SSA’s initial determination that she had been
overpaid; however, the SSA affirmed its initial determination on August 16, 2014. ECF No. 391, ¶¶8-9. Plaintiff subsequently received a hearing before an Administrative Law Judge, who
rendered an “unfavorable” decision on March 24, 2017. Id. ¶¶10-11. The ALJ concluded, in
relevant part, that Plaintiff had been paid “full and complete retirement benefits” by the SSA and
that “no overpayment or underpayment [was] due” on her account. Id. ¶11. 1
On April 22, 2017, Plaintiff filed a written request that the SSA’s Appeal Council review
the ALJ’s adverse decision. ECF No. 39-1, ¶12. The Appeals Council eventually rendered an
adverse decision on July 5, 2018. Id.
In the meantime, before the Appeals Council had rendered its decision, Plaintiff filed the
instant complaint in Magisterial District Court Number MDJ-06-1-03 in Erie County. ECF No.
6-2. The lone Defendant named in the complaint was Justin Martin, an employee of the SSA.
Id. In her pleading, Plaintiff alleged that the Defendant had committed fraud by taking money
from her bank account. Id. As relief, she sought $10,000.00 in damages. Id.
On March 20, 2018, the United States Attorney for the Western District of Pennsylvania
removed the case to this judicial district. ECF No. 1. Six days later, the Honorable Mark R.
Hornak dismissed Justin Martin from this case and directed the United States to be substituted as
the proper party Defendant for purposes of all further proceedings. ECF No. 9. The case was
transferred to the undersigned on September 18, 2018. ECF No. 15.
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The ALJ noted that a previous underpayment of $4,511.00 was due to Plaintiff and had been
“released for payment” on June 7, 2016. Mumford Decl. ¶11.
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III.
DISCUSSION
It is axiomatic that federal district courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. v. Am., 511 U.S. 375, 377 (1994). As a result, “[t]hey possess only that
power authorized by the constitution and statute, . . . which is not to be expanded by judicial
decree[.]” Id. (citations omitted). The default presumption is that “a cause lies outside this
limited jurisdiction, . . . and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Id. (citations omitted). Relevant to the Court’s jurisdictional analysis is the
doctrine of sovereign immunity, which shields the United States and its various agencies from
suit, except to the extent that Congress has waived the immunity. Dept’ of the Army v. Blue Fox,
Inc., 525 U.S. 255, 260 (1999); 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.”).
Accordingly, this Court must determine in the first instance whether any statutory waiver of
sovereign immunity exists before it can allow claims against the federal government to proceed.
See Mitchell, 463 U.S. at 212.
Here, Plaintiff’s sole cause of action is an intentional tort claim sounding in fraud,
asserted against the United States. The Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§1346(b), 2671-2680 (Westlaw 2020), constitutes a limited waiver of sovereign immunity over
tort claims against the federal government and its agencies. Dolan v. U.S. Postal Service, 546
U.S. 481, 484-85 (2006).
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In order for jurisdiction to exist under 28 U.S.C. § 1346(b)(1), a claim must be
made
“[1] against the United States, [2] for money damages, ... [3] for injury or loss of
property, or personal injury or death [4] caused by the negligent or wrongful act or
omission of any employee of the Government [5] while acting within the scope of
his office or employment, [6] under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.”
FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b)(1)) (alterations in
original)); see CNA v. United States, 535 F.3d 132, 141 (3d Cir. 2008), as amended (Sept. 29,
2008). In addition, 28 U.S.C. § 2675(a) mandates that a tort action “shall not be instituted”
against the United States unless two prerequisites have been satisfied: (1) “the claimant shall
have first presented the claim” to the relevant agency and (2) the claim “shall have been finally
denied by the agency in writing.” 28 U.S.C. § 2675(a). Thus, no FTCA action may be
commenced on a claim against the United States until the claimant has first presented, and
exhausted, the available administrative remedies prior to bringing suit in any court. McNeil v.
United States, 508 U.S. 106, 111-13 (1993). If a plaintiff files a suit without having submitted a
timely claim to the appropriate agency, the suit must be dismissed. Id. at 112-13 (1993); PerezBarron v. United States, 480 F. App’x 688, 691 (3d Cir. 2012). Thus, conformity with § 2675(a)
is a jurisdictional term of the FTCA’s limited waiver of sovereign immunity. See, e.g., Abulkhair
v. Bush, 413 F. App'x 502, 506 (3d Cir. 2011) (“Failing to follow this procedure [of
administrative exhaustion] deprives federal courts of subject matter jurisdiction.”) (citing White–
Squire v. USPS, 592 F.3d 453, 456–58 (3d Cir. 2010)); Accolla v. United States Gov't, 369 F.
App'x 408, 409–10 (3d Cir. 2010) (finding the district court properly dismissed FTCA claim
where the plaintiff filed federal suit prior to exhausting administrative remedies).
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In this case, the United States has presented undisputed evidence that Plaintiff did not
exhaust her administrative remedies for purposes of the FTCA. See ECF No. 39-2. 2 For this
reason alone, the Court lacks jurisdiction over any putative FTCA claim. Moreover, even if
Plaintiff had exhausted her administrative remedies under the FTCA, the Court still could not
entertain her claim because the Act does not waive sovereign immunity for torts “arising out of
... misrepresentation [or] deceit.” 28 U.S.C. § 2680(h). This limitation includes fraud claims
like the one asserted here. See Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91, 96 (3d
Cir. 1995) (noting that “courts have consistently held that fraud claims against the government
are not permitted under the FTCA”)(citing authority); Shaw v. United States Postal Serv., No.
CV 18-651, 2018 WL 5885900, at *3 (E.D. Pa. Nov. 9, 2018) (dismissing plaintiff's “fraudbased tort claims” against the United States Postal Service, which “sound[ed] in precisely the
types of actions that remain barred by sovereign immunity under Section 2680(h) of the FTCA”).
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The Court notes that, on November 18, 2019, Plaintiff filed a motion for an extension of time to
collect evidence in response to the Government’s motion to dismiss ECF No. 43. After receiving
this motion, the Court scheduled a telephonic hearing for December 3, 2019 for the purpose of
discussing Plaintiff’s evidentiary needs. ECF No. 44. Plaintiff did not appear at the designated
time, despite being sent notice at her address of record. Because Plaintiff did not appear or
provide any information to the Court in support of her request for an extension of time, the Court
denied her motion on the record. See Minutes dated 12/3/19. Later that same day, the Clerk
filed correspondence from Plaintiff advising the Court that she wanted “no phone hearing” and
wanted instead to appear in person, with a representative from the SSA and her “representative”
in “a room at the Federal Court House.” ECF No. 47. Subsequently, on December 10, 2019,
Plaintiff responded to the Government’s motion to dismiss. ECF No. 48. This “response”
consisted primarily of computerized records of Plaintiff’s benefits payment history that were
apparently supplied to her by the SSA. On these records, Plaintiff made handwritten notations of
SSA’s alleged computational errors, coupled with various ad hominem attacks wherein Plaintiff
referred to unspecified agency officials as “incompetent idiots,” “morons,” and “stupid.” ECF
No. 48. Plaintiff also stated in her “response” that the SSA “continues to deny [her a] copy of
[her] records,” id., but she does not specify which records in particular she is lacking or how they
would be relevant in responding to the Government’s jurisdictional challenges. Furthermore,
nowhere in her response does Plaintiff represent that she exhausted her administrative remedies
under the FTCA – information which is fully within her possession and which she could allege
by way of an affidavit, even in the absence of complete administrative records. Accordingly, the
Court considers the exhaustion issue to be undisputed.
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In addition, “courts have held that 42 U.S.C. § 405(h) bars tort claims such as fraud from
being asserted against the SSA when the allegations ‘arise under’ the Social Security Act.”
Knight-Bey v. Bacon, No. 8:19CV330, 2020 WL 1929075, at *3 (D. Neb. Apr. 21, 2020). In this
case, Plaintiff’s fraud claims directly relate to the SSA’s efforts to recoup an alleged
overpayment of old-age benefits. This is precisely the kind of claim that Section 405(h)
prohibits. See 42 U.S.C. § 405(h) (“No action against the United States, the Commissioner of
Social Security, or any officer or employee thereof shall be brought under section 1331 [federal
question jurisdiction] or 1346 [Federal Tort Claims Act] of Title 28 to recover on any claim
arising under this subchapter.”); Cunningham v. Social Sec. Admin., 311 F. App'x 90, 92, 2009
WL 175076 (10th Cir. 2009) (unpublished) (42 U.S.C. §405(h) prohibited claim for constructive
fraud brought against SSA after SSA ordered plaintiffs to reimburse SSA for overpayment);
Greene-Major v. Comm'r of Soc. Sec. Admin., No. 3:10-1459, 2010 WL 3038319, at *2 (D.S.C.
June 17, 2010) (“Title 42 U.S.C. § 405(h) prohibits Plaintiff from seeking damages against the
United States, the Commissioner, or any officer or employee thereof, for alleged personal
injuries or loss of property, such as for claims of [among other things] fraud[.]”), report and
recommendation adopted, 2010 WL 3038430 (D.S.C. July 29, 2010).
To the extent that Plaintiff desires judicial review of her administrative proceedings
before the Social Security Administration, her claim may not be heard by this Court unless she
properly seeks review as dictated by Section 205(g) of the Social Security Act, 42 U.S.C.
§405(g). Specifically,
Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may allow. Such action shall
be brought in the district court of the United States for the judicial district in which
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the plaintiff resides, or has his principal place of business, or, if he does not reside
or have his principal place of business within any such judicial district, in the United
States District Court for the District of Columbia. . . .
42 U.S.C. §405(g). A “final decision” is rendered by the Commissioner of Social Security only
after exhaustion of a four-step administrative process. See 20 C.F.R. § 404.900. The steps begin
with the initial determination, followed by a request for reconsideration, a request for a hearing
before an ALJ, and a request for Appeals Council review. Id. § 404.900(a). If, after Appeals
Council review, the claimant is dissatisfied with the Administration’s final decision, she may
request judicial review by filing a federal district court action. Id. §§ 404.900(a); 404.981.
Failure to timely follow the appropriate steps results in the loss of the right to judicial review. Id.
§ 404.900(b).
In this case, Plaintiff did not adhere to the foregoing procedures. Instead of waiting for
the Commissioner to render a “final,” reviewable “decision,” Plaintiff commenced suit five
months prior to receiving a decision from the SSA’s Appeals Council. Further, Plaintiff did not
file suit in this judicial district, nor did she name the Commissioner as the Defendant or invoke
§405(g) as a basis for jurisdiction. Instead, as noted, Plaintiff filed a fraud claim in the
magisterial district court, naming an official of the SSA as the lone Defendant. Because Plaintiff
is proceeding pro se, her complaint must be liberally construed and “held ‘to less stringent
standards than formal pleadings drafted by lawyers.’” Fantone v. Latini, 780 F.3d 184, 193 (3d
Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)); see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nevertheless, Plaintiff is still the master of her own pleading,
and, in the absence of more persuasive indicia, the Court will not infer from her complaint that
she is seeking judicial review of the Commissioner’s “final decision” relative to her old-age
benefits. See Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act
as counsel or paralegal to pro se litigants.”); Myles v. United States, 416 F.3d 551, 552 (7th Cir.
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2005) (noting that even pro se litigants are masters of their own complaints and may choose who
to sue—or not to sue).
IV.
CONCLUSION
Based upon the foregoing reasons, this Court lacks subject-matter jurisdiction over
Plaintiff’s fraud claim against the United States. Accordingly, the Government’s motion to
dismiss for lack of subject matter jurisdiction will be granted. Because the jurisdictional defects
in Plaintiff’s complaint are irremediable, the pleading will be dismissed without further
opportunity for amendment. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002) (stating that a district court may dismiss an action with prejudice when leave to amend
would be inequitable or futile). The Court will dismiss as moot the Government’s alternative
motion to dismiss the complaint for failure to state a claim upon which relief can be granted.
An appropriate Order follows.
____________________________
SUSAN PARADISE BAXTER
United States District Judge
cc:
Paul E. Skirtich, Esq.
(via CM/ECF)
MARSHA M. CHESBRO
1732 West 14th Street
Erie, PA 16505
(via U.S. Mail)
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