EDWARDS v. SOCIAL SECURITY ADMINISTRATION

Filing 7

MEMORANDUM AND ORDER. Defendant's Motion to Dismiss Plaintiff's Complaint (Doc. 3 ) is GRANTED. All of Plaintiff's claims are dismissed with prejudice, except for his potential claim regarding the suspension of his benefits during i ncarceration, and that claim is dismissed without prejudice. IT IS FURTHER ORDERED that Plaintiff may file an amended complaint on or before 11/14/14, limited to Plaintiff's challenge regarding the suspension of his benefits during incarcerati on. Should Plaintiff not timely file an amended complaint, the dismissal of that claim likewise will be converted to a dismissal with prejudice. Signed by Judge Cathy Bissoon on 10/30/14. Staff note: a copy of this Memorandum and Order will be sent, via First-Class U.S. Mail, to Plaintiff's address of record on 10/31/14. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONALD EDWARDS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 13-1655
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
Presently pending before the Court is the Motion to Dismiss Plaintiff’s Complaint filed
by Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner or
“Defendant”). (ECF No. 3). For the reasons that follow, the Motion will be granted,
as explained below.
A. Background
Donald Edwards (“Plaintiff”), received notice from the Social Security Administration
(“SSA”) in April and June of 2007 that he had been approved for benefits under Titles II and
XVI of the Social Security Act, 42 U.S.C. § 401, et seq. and § 1381 et seq. (“Act”). (ECF No. 41 at pp. 5-23). Plaintiff also was notified that the SSA had approved the fee agreement between
Plaintiff and his representative, and that $5,300 was being withheld to pay his representative.
(ECF No 4-1 at pp. 6-7). On June 11, 2007, Plaintiff received a notice of “Important
Information” regarding his Title II benefits, and was advised that if he disagreed with the

decision, he had 60 days in which to ask for an appeal. (ECF No. 4-1 at pp. 34-35). The SSA’s
records do not reflect that Plaintiff appealed the decision. (ECF No. 4-1 at p. 3 ¶ 2(d)).
Plaintiff subsequently received several notices beginning on July 3, 2007, from the
Department of Treasury, informing him that he owed money to the United States Department of
Education, and that his benefit payments may be reduced. (ECF No. 4-1 at pp. 36-44). Plaintiff
was informed that, pursuant to 31 U.S.C. § 3716, the Department of Treasury was required to
reduce the amount of his benefits in order to pay such indebtedness in a process known as
“offset.” (Id.). These notices further informed Plaintiff that the SSA and the Department of
Treasury were unable to answer any questions about the debt owed, and that only the agency to
which he owed the debt could assist him in resolving it. (Id.).
In his Complaint, Plaintiff alleges that an arrest warrant was issued in September 2007
for a parole violation. (ECF No. 2 at p. 2). He further alleges that he was incarcerated for
approximately eight (8) months, from January 2008 until September 2008. (Id.). During this
timeframe and thereafter, Plaintiff received notices from the SSA regarding his Title II benefits,
dated March 7, 2008, and June 2, 2009, regarding amounts withheld for court-ordered child
support and/or alimony from the Court of Common Pleas of Allegheny County. (ECF No. 4-1
at pp. 42-44).
Although not entirely clear from the allegations in the Complaint, it appears that Plaintiff
claims that the SSA failed to pay him benefits totaling $7,868.44 during the time he was
incarcerated and while awaiting an administrative hearing before an administrative law judge.
(ECF No. 2 at p. 2). He instituted this civil action pro se by filing a Motion for Leave to Proceed
in forma pauperis, which was granted by the Court on November 22, 2013. (ECF No. 1).
He seeks an order from the Court directing the Commissioner to place the withheld amount on

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his “direct express card.” (ECF No. 2 at p. 2). The Commissioner has moved for dismissal of
Plaintiff’s Complaint pursuant to Rule 12(b)(1) and/or Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (ECF No. 3).
B. Standard of Review
Federal Rule of Civil Procedure 12(b)(1) permits a defendant to move for dismissal of a
complaint if the court lacks subject-matter jurisdiction to hear the case. In a factual attack, such
as here, the defendant challenges the factual basis underlying the court’s subject-matter
jurisdiction with extrinsic evidence, essentially making the argument that the allegations
supportive of jurisdiction are not true. Cunningham v. Lenape Regional High Dist. Bd. of Educ.,
492 F. Supp. 2d 439, 447 (D.N.J. 2007). Because this Court must be satisfied at all times that it
has the power to hear the case, it “may consider evidence outside the pleadings” “to resolve
factual issues bearing on jurisdiction.” Gould Electronics, Inc. v. U.S., 220 F.3d 169, 176
(3d Cir. 2000); Gotha v. U.S., 115 F.3d 176, 179 (3d Cir. 1997); Int’l Ass’n of Machinists &
Aerospace Workers v. Nw. Airlines, 673 F.2d 700, 711 (3d Cir. 1982). Once the defendant
presents extrinsic evidence contesting the jurisdictional facts set forth in the complaint, the court
must permit the plaintiff to respond. Gould Electronics, 220 F.3d at 177. “The court may then
determine jurisdiction by weighing the evidence presented by the parties,” “evaluating for itself
the merits of the jurisdictional claims.” Id.; Mortensen v. First Federal Sav. and Loan Ass’n,
549 F.2d 884, 891 (3d Cir. 1977) (emphasis added). In making this evaluation, no presumption
of truthfulness attaches to the allegations set forth in the complaint. Mortensen, 549 F.2d at 891.
Rather, the challenge must be evaluated solely on the merits of the evidence submitted on
jurisdiction. Id.

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When considering a Rule 12(b)(6) motion, the Court must accept all of plaintiff’s
allegations as true and construe all reasonable inferences in favor of the plaintiff. Alston v.
Parker, 363 F.3d 229, 233 (3d Cir. 2004). To survive a motion to dismiss under Rule 12(b)(6),
“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, 129 S. Ct. 1937, 173 L.Ed.2d 868
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed.2d
929 (2007)). A claim “requires a complaint with enough factual matter (taken as true) to suggest
the required element.” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citing
Twombly, 550 U.S. at 556) (internal quotations omitted). “This does not impose a probability
requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary element.” Id.
Finally, a court must employ less stringent standards when considering pro se pleadings
than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520,
92 S. Ct. 594, 30 L.Ed.2d 652 (1972). When presented with a pro se complaint, the court should
construe the complaint liberally and draw fair inferences from what is not alleged as well as from
what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).
C. Analysis
The Commissioner first argues that Plaintiff’s Complaint, to the extent it is based upon
the amount withheld and awarded to his representative following an award of benefits under
Title II and Title XVI of the Act, should be dismissed pursuant to Rule 12(b)(1) for lack of

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subject matter jurisdiction. (ECF No. 4 at pp. 3-4).1 The Court agrees. The only civil action
permitted on a claim arising under Title II and/or Title XVI is an action to review the “final
decision of the [Commissioner] made after a hearing.” Califano v. Sanders, 430 U.S. 99, 108,
97 S. Ct. 980, 51 L.Ed.2d 192 (1977) (quoting 42 U.S.C. § 405(g)). Determining the amount to
be charged or received by a claimant’s representative is a non-reviewable agency decision.
20 C.F.R. § 404.903(f) (“Administrative actions that are not initial determinations may be
reviewed by us, but they are not subject to the administrative review process … and they are not
subject to judicial review. These actions include, … [d]etermining the fee that may be charged
or received by a person who has represented you in connection with a proceeding before us[.]”).
Accordingly, this Court lacks subject-matter jurisdiction to review the administrative action of
the Commissioner in this regard, and this claim will be dismissed. See Palmer v. Barnhart, 89 F.
App’x 806, 809 (3d Cir. 2004) (holding that a fee determination “is not a final decision under
§ 405(g) which is subject to judicial review”); Thomas v. Astrue, 2009 WL 2230144 at *2 (E.D.
Pa. 2009) (relying on Palmer and holding that “to the extent that Plaintiff challenges the
withholding of attorney’s fees, we have no jurisdiction”).
To the extent Plaintiff’s Complaint can be construed as complaining about the amounts
withheld from his benefits for child support and/or alimony, and/or the amounts withheld with
respect to Plaintiff’s indebtedness to the Department of Education, these claims will also be
dismissed. Pursuant to 42 U.S.C. § 659, the SSA has the right to withhold Social Security
benefits pursuant to a court order for child support and/or alimony, and the SSA is immune from
liability when it withholds such benefits pursuant to a state court order entered by a court of

The Commissioner construes the majority of the dollar amount requested in the Complaint
($5,315.20), as most likely representing the amount of attorneys’ fees deducted from the
Plaintiff’s benefits. (ECF No. 4 at p. 4).
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competent jurisdiction. See e.g. Trimble v. U.S. Social Security, 369 F. App’x 27, 32 (11th Cir.)
(holding that SSA was immune from liability when it garnished the claimant’s Social Security
benefits pursuant to a valid state court order for child support) cert. denied, __ U.S. __,
130 S. Ct. 3537, 177 L.Ed.2d 1102 (2010).
Similarly, the Debt Collection Improvement Act of 1996, 31 U.S.C.A. § 3716(c)(6)(A),
allows the federal government to collect debts through the means of an administrative offset:
Any federal agency that is owed by a person a past due, legally enforceable
nontax debt that is over 120 days delinquent … shall notify the Secretary of
Treasury of all such nontax debts for purposes of administrative offset under this
subsection.
31 U.S.C.A. § 3716(c)(6)(A); see also Stephens ex. rel. R.E. v. Astrue, 565 F.3d 131, 135-36 (4th
Cir. 2009). Pursuant to this provision, Social Security Benefits are subject to offset for the
purpose of collecting outstanding student loans from debtors. See Lockhart v. United States,
546 U.S. 142, 145-46, 126 S. Ct. 699, 163 L.Ed.2d 557 (2005) (“[T]he Debt Collection
Improvement Act clearly makes Social Security benefits subject to offset[.]”). If Plaintiff
disputes the debt, his remedy is to pursue a proceeding against the agency to which he owes the
debt, and not the SSA. See, e.g., Johnson v. U.S. Dep’t of Treasury, 300 F. App’x 860, 862
(11th Cir. 2008) (upholding district court’s 12(b)(6) dismissal and holding that plaintiff was
required to seek relief against the state agency to which he owed the debt rather than Treasury);
Lepelletier v. U.S. Dep’t of Education, 2009 WL 4840153 at *1 (D.D.C. 2009) (holding that to
the extent plaintiff disputed his outstanding debt, he must proceed against the creditor agency
and not Treasury).
Finally, and more broadly speaking, the Court is of the view that Plaintiff’s Complaint
could reasonably be construed as a challenge to the SSA’s suspension of his benefits during his

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incarceration, an issue not addressed by the Commissioner. As previously stated, however,
in order to challenge a decision of the Commissioner in federal court, the plaintiff must have
obtained the Commissioner’s “final decision.” 42 U.S.C. § 405(g). Pursuant to the
Commissioner’s regulations, a “final decision” is one “rendered after a claimant has completed a
four-step administrative review process, the last step being a review by the Appeals Council.”
Callendar v. Soc. Sec. Admin., 275 F. App’x 174, 175 (3d Cir. 2008) (citing 20 C.F.R.
416.1400(a)). In his Brief opposing dismissal, Plaintiff vaguely refers to “letters” from the SSA
dated April 19, 2013, and February 25, 2013, see (ECF No. 6 at p. 2), but these “allegations” are
not included in the Complaint, nor has Plaintiff alleged they are the “final decisions” of the
Commissioner. There is nothing in the Complaint to suggest Plaintiff appealed the
Commissioner’s decision through the appropriate administrative review process. It is the
Plaintiff’s burden to establish subject-matter jurisdiction, and Plaintiff’s allegations clearly are
inadequate in this regard. Therefore, to the extent Plaintiff is indeed challenging the
Commissioner’s decision to suspend his benefits during his alleged incarceration, this claim will
likewise be dismissed for lack of subject-matter jurisdiction. See e.g., Aruanno v. Comm’r of
Soc. Sec., 471 F. App’x 87, 88-89 (3d Cir. 2012) (upholding district court’s dismissal for lack of
subject-matter jurisdiction where plaintiff failed to pursue administrative remedies after his
benefits were suspended following incarceration); Thomas, 2009 WL 2230144 at *2 and n.2
(dismissing complaint for lack of subject matter jurisdiction where plaintiff failed to indicate he
filed a formal appeal through designated channels with respect to his contention that the SSA
erred in denying him benefits for a period it believed him to be incarcerated).
The Court of Appeals has held that if a complaint is vulnerable to dismissal, a district
court must permit a curative amendment, “unless an amendment would be inequitable or futile.”

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Phillips 515 F.3d at 236 (citations omitted); Alston, 363 F.3d at 236. In this case, with respect to
any claims of the Plaintiff based on the amounts withheld for attorney’s fees, for child support
and/or alimony, and/or for any indebtedness to the Department of Education, Plaintiff will not be
given leave to amend because any amendment would be futile. Accordingly, these claims will
be dismissed with prejudice based on the reasoning set forth above.
With respect to Plaintiff’s challenge to the SSA’s alleged suspension of his benefits
during his incarceration, the Complaint provided no basis upon which this Court can exercise
subject-matter jurisdiction. However, the Court cannot conclude that the jurisdictional
deficiency is incapable of being cured by way of amendment. Accordingly, this claim will be
dismissed without prejudice, and Plaintiff may file an amended complaint, limited to the
remaining claim, on or before November 14, 2014. The amended complaint must be in
compliance with Rule 8 of the Federal Rules of Procedure which states, in relevant part:
(a) Claim for relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that the pleader is entitled
to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
Fed. R. Civ. P. 8(a).
Should Plaintiff file an amended complaint, he must make his last, best efforts to state a
viable claim regarding the pleading in question, because the Court does not anticipate providing
further opportunity for amendment. Should Plaintiff fail to file an amended complaint on or

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before November 14, 2014, then this dismissal will be converted to a dismissal with prejudice
without further notice to the parties.
Consistent with the foregoing, the Court hereby enters the following:
II. ORDER
Defendant’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 3) is GRANTED. All of
Plaintiff’s claims are dismissed with prejudice, except for his potential claim regarding the
suspension of his benefits during incarceration, and that claim is dismissed without prejudice.
IT IS FURTHER ORDERED that Plaintiff may file an amended complaint on or before
November 14, 2014, limited to Plaintiff’s challenge regarding the suspension of his benefits
during incarceration. Should Plaintiff not timely file an amended complaint, the dismissal of that
claim likewise will be converted to a dismissal with prejudice.
IT IS SO ORDERED.

October 30, 2014

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record
cc (via First-Class U.S. Mail):
Donald Edwards
7272 Verona Blvd.
Pittsburgh, PA 15235

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