Becker v. Berryhill

Filing 17

REPORT AND RECOMMENDATIONS re 8 Motion to Dismiss/Lack of Jurisdiction filed by Nancy A. Berryhill, be GRANTED; 10 Emergency Motion for Prohibitory Injunction, Temporary Injunction, or Alternatively Temporary Restraining Order filed by Bruce Becker be DENIED. CASE NO LONGER REFERRED to Magistrate Judge Richard B. Farrer. Signed by Judge Richard B. Farrer. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
BRUCE BECKER,
Plaintiff,
vs.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINSTRATION;
Defendant.

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5-17-CV-00892-FB-RBF

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation concerns the Rule 12(b)(1) Motion to Dismiss filed by
Defendant Nancy A. Berryhill, Dkt. No. 8, and the Emergency Motion for Prohibitory
Injunction, Temporary Injunction, or Alternatively Temporary Restraining Order filed by
Plaintiff Bruce Becker, Dkt. No. 10.1 Pursuant to 28 U.S.C. § 636(b), Rule 1(h) of Appendix C to
the Local Rules, and the docket management order entered on September 29, 2017, in the San
Antonio Division of the Western District of Texas, this action to review the decision of the
Commissioner of Social Security has been referred to the undersigned for a report and
recommendation.

1

Having reviewed Becker’s Emergency Motion for Prohibitory Injunction, Temporary
Injunction, or Alternatively Temporary Restraining Order, Dkt. No. 10, upon filing, the
undersigned determined that it did not warrant emergency consideration.
1

Having considered Berryhill’s Motion to Dismiss, Dkt. No. 8, Becker’s First Amended
Original Complaint and Response in Opposition to Berryhill’s Motion to Dismiss, Dkt. No. 11,2
Becker’s Emergency Motion for Prohibitory Injunction, Temporary Injunction, or Alternatively
Temporary Restraining Order, Dkt. No. 10, Berryhill’s Reply, Dkt. No. 14, Becker’s Sur-Reply,
Dkt. No. 15, and the entire record in this case, the undersigned RECOMMENDS that the
District Court GRANT the motion to dismiss, Dkt. No. 8, and DISMISS this case for failure to
exhaust administrative remedies as required by 42 U.S.C.§ 405(g). The circumstances presented
do not merit judicially waiving § 405(g)’s exhaustion requirement and judicial review under any
other statute Becker invokes as a basis for jurisdiction is improper. Additionally, although the
Court need not reach the issue, the present controversy is likely moot in light of the
Commissioner’s October 3, 2017 decision to reinstate Becker’s benefits and provide him with
retroactive pay. Finally, Becker’s motion for injunctive relief, Dkt. No. 10, should be
DISMISSED for lack of jurisdiction. The requested relief relies on Becker’s speculative fears
concerning future, non-imminent, contingent events and is therefore not ripe for review.
I.

Factual and Procedural Background
Plaintiff Bruce Becker has been a recipient of disability insurance benefits since March

2006. See Decl. of Cristina Prelle ¶ 3(a).3 In or around September 2015, Becker alleges that he
received a questionnaire from the Social Security Administration, which requested employmentrelated information. See Compl. at 1-2. Becker asserts that he completed the questionnaire with
information concerning various volunteer roles he held over the years, and promptly returned it
to the Social Security Administration. Id. On August 20, 2017, Becker, by and through his
2

Dkt. No. 11 consists of Becker’s First Amended Original Complaint, his Response in
opposition to Berryhill’s Motion to Dismiss, his Request for a Court Ordered Scheduling Order,
Jury Demand, and Request for Declaratory and Injunctive Relief.
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The Prelle Declaration may be found at Dkt. No. 8-1.
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representative payee, received a notice from the Social Security Administration stating without
explanation that the Administration could no longer pay benefits as of August 2017. See Ex. 1 to
Prelle Decl. The notice explained that if Becker disagreed with the termination, he could appeal
the decision. Id. Becker appears to allege, and the Administration does not dispute, that he did
not receive any advance notice before his benefits were terminated or an opportunity to contest
the decision pre-termination. See, e.g., Dkt. No. 11 at 7, 12. According to Becker, he first failed
to receive his disability benefits on September 12, 2017. Id. at 12.
Becker did not appeal the decision; he instead initiated this action on September 13,
2017, proceeding pro se and in forma pauperis. See Compl. In his complaint, Becker asserts that
his disability benefits were “unfairly removed” and contends that the Social Security
Administration committed “several constitutional violations including both Due Process and
Procedural Due Process violations” in terminating his benefits, including by failing to provide
him “a full and fair trial prior to the removal of his benefits.” Id. at 2-3. Becker seeks
reinstatement of his disability benefits, as well as monetary damages in the amount of $100,000
for the Social Security Administration’s “adverse removal of his benefits and the causing of
emotional injury to himself and his family.” Id. at 4.
On October 3, 2017, the Social Security Administration notified Becker, by and through
his new representative payee, that on or around October 11, 2017, he would be receiving,
through his representative payee, a lump sum payment of $3,150 for benefits that were due
through September 2017. See Ex. 5 to Prelle Decl. The Social Security Administration further
notified Becker that beginning on or around November 8, 2017 and continuing for each
successive month thereafter, he would receive monthly payments in the amount of $1,357. Id.

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On January 5, 2018, Defendant Nancy Berryhill, Acting Commissioner of the Social
Security Administration, moved to dismiss Becker’s claims for lack of subject matter
jurisdiction, arguing that Becker failed to exhaust his administrative remedies prior to filing suit.
Dkt. No. 8 at 1-5. Regardless, Berryhill argues, Becker’s claims are moot in light of the October
11, 2017 determination. Id. at 6.
On January 17, 2017, Becker filed an amended complaint and response to Berryhill’s
motion. Dkt. No. 11. By way of this document, Becker appears to concede that he did not
exhaust his administrative remedies. See id. at 6; see also Dkt. No. 15 at 4. Becker, however,
asserts that the Court should judicially waive the exhaustion requirement because his interest in
having the issue resolved promptly is so great that requiring administrative exhaustion under
these circumstances would be inappropriate. See Dkt. No. 11 at 6 (citing Matthews v. Eldridge,
424 U.S. 319, 330 (1976)).4 Becker also amended his complaint to clarify his various claims and
requests for relief. Specifically, Becker claims that the Social Security Administration violated
his Fifth and Fourteenth Amendment rights to due process when it discontinued his “[l]egally
entitled Disability Benefit” without a hearing. Id. at 12-14, 16-17. Becker also challenges the
constitutionality of the Social Security Administration, as well as its regulations. Id. at 15.
Becker asserts that he suffered damages due to Berryhill’s negligent actions and explains that he
is suing Berryhill both in her official and individual capacity. Id. at 18. Finally, Becker amended
his request for relief to also include a request “to enjoin the Social Security Administration from
issuing ‘Directed Attacks’ against Bexar County Veterans with the Abrupt termination and or

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Becker also moves to strike Berryhill’s motion for “failing to properly serve.” Dkt. No. 11 at 2.
But pursuant to the certificate of service attached to the motion, Berryhill properly served a copy
of the motion on Becker via mail using the address on file with the Court. See Fed. R. Civ. P.
5(b)(2)(C). Moreover the record reflects that Becker received a copy of the motion. Accordingly,
the undersigned declines to strike Berryhill’s motion.
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suspension of their Disability Pensions absent access and opportunity to a full and fair trial
before a United States Judge within proper Jurisdiction.” Id. at 26.
The same day he filed his amended complaint, Becker filed an Emergency Motion for
Prohibitory Injunction, Temporary Injunction, or Alternatively Temporary Restraining Order.
Dkt. No. 10. By way of this motion, Becker seeks an injunction prohibiting the “systematic
generation of Disability termination letters and sending those letters to Bexar County Veterans.”
Id. at 5. According to Becker, letters such as the one he received on August 20, 2017 cause
veterans to suffer irreparable injury that cannot be repaired by retroactive monetary
compensation. Id. at 3-4.
II.

Analysis
The Commissioner moves for dismissal pursuant to Rule 12(b)(1), arguing Becker has

failed to exhaust his administrative remedies and that the case is now, in any event, moot. While
the Fifth Circuit has not addressed the issue in the context of social security appeals, courts in
other jurisdictions “tend to treat failure to exhaust or to show waiver of exhaustion of
administrative remedies, as a failure to state a claim rather than a jurisdictional deficiency.”
Harvey v. Colvin, No. 1:13-CV-01957, 2015 WL 4078223, at *5 (D.D.C. Jul. 1, 2015) (quotation
marks omitted); cf. Norah v. Leavitt, No. CIV.A. 04-3155, 2005 WL 887282, at *5 (E.D. La.
Apr. 12, 2005) (granting defendant’s 12(b)(1) motion to dismiss where plaintiff failed to exhaust
her administrative remedies). Because the Supreme Court has held that administrative exhaustion
is waivable, the Commissioner’s motion should likely be considered as addressing a failure to
state a claim upon which relief can be granted, rather than challenging the Court’s subject matter
jurisdiction. See Escalera v. Comm’r of Soc. Sec., 457 Fed. App’x 4, 6 (2d Cir. 2011)
(recognizing that because “the failure to exhaust is a waivable (i.e., non-jurisdictional)

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requirement under Section 405(g)[,] . . . [d]ismissal may not have been appropriate under Rule
12(b)(1)”) (citations omitted).
Exhaustion of Administrative Remedies. It is undisputed that Becker failed to exhaust his
administrative remedies before he filed this action in federal court. See Eldridge, 424 U.S. at 328
(claimant did not administratively exhaust his claim for benefits where he did not even seek
reconsideration of the initial termination determination). The Commissioner has not waived
Section 405(g)’s exhaustion requirement, and so Becker may only obtain judicial review if the
Court judicially waives or excuses this requirement. Id. The Supreme Court in Eldridge
explained that courts may waive the exhaustion requirement where the plaintiff’s claim is
“entirely collateral to his substantive claim of entitlement” and where the plaintiff can show “at
least a colorable claim that an erroneous termination would irreparably harm him.” Id. at 330331. In Bowen v. City of New York, the Supreme Court further clarified the circumstances in
which judicial waiver of exhaustion is appropriate. 476 U.S. 467 (1986). There, the Court
explained that the “application of the exhaustion doctrine is ‘intensely practical.’” Id. at 484
(quoting Eldridge, 424 U.S. at 332 n. 11). Accordingly, “[t]he ultimate decision of whether to
waive exhaustion should not be made solely by mechanical application of the Eldridge factors
but should also be guided by the policies underlying the exhaustion requirement.” Id. Becker
likely cannot satisfy the first Eldridge factor and, regardless, practical considerations disfavor
waiving the exhaustion requirement here.
First, Becker requests both a hearing and reinstatement of benefits, which means he is
asserting a substantive claim for benefits through this litigation. See Affiliated Prof’l Home
Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (even though claims were
presented as constitutional claims, they were inextricably intertwined with a claim of entitlement

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to benefits and therefore subject to § 405(g)’s exhaustion requirement).5 Becker’s challenge here
is therefore not collateral to his substantive claim of entitlement, and the Court could refuse to
waive the exhaustion requirement on this ground alone.
Moreover, practical considerations do not merit waiving or excusing exhaustion in this
case. Exhaustion “allows the agency to develop a factual record to apply its expertise to a
problem to exercise its discretion, and to correct its own mistakes.” Justiniano v. Soc. Sec.
Admin., 876 F.3d 14, 26 (1st Cir. 2017). In other words, “an agency should be given a chance to
rectify a litigant’s problems and save judicial time and effort.” Id. at 30 (quotation marks
omitted). That is exactly what has happened here. Less than a month after Becker filed suit, the
Social Security Administration reinstated Becker’s benefits, along with back pay. Accordingly,
practical considerations weigh against waiving the exhaustion requirement. See id. (finding
judicial waiver of the exhaustion requirement was not warranted where the Social Security
Administration presented evidence suggesting the plaintiffs’ chances of obtaining benefits were
“substantial” and, therefore, determining that the agency should be provided an opportunity “to
rectify” the issue). They instead favor encouraging those aggrieved like Becker to raise and
pursue their grievance with the agency in the first instance so as to prevent the need for judicial
review.
In sum, this action should be dismissed for failure to administratively exhaust.
Mootness. Having determined that this action should be dismissed, the undersigned need
not address the Commissioner’s mootness argument. Were it necessary to address this argument,
5

Cf. Eldridge, 424 U.S. at 325 (finding plaintiff’s claims were collateral even though the
plaintiff sought an immediate reinstatement of benefits pending a hearing on the issue of his
disability); Himmler v. Califano, 611 F.2d 137, 148 (6th Cir. 1979) (recognizing that the case
came within the “narrow limits in which review is permitted under Salfi and Eldridge” because
the “ultimate question” was whether the plaintiffs and their class had been accorded due process,
not whether they were actually eligible for benefits).
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the undersigned would likely conclude that the Commissioner’s October 3, 2017 decision to
reinstate Becker’s benefits and provide him with back pay moots this action. Becker does not
dispute that his benefits were fully reinstated and that he was properly retroactively
compensated. Becker, however, argues that this case is not moot because (1) he suffered
emotional damages resulting from the termination of his benefits; (2) the Social Security
Administration has failed to enact safeguards to prevent such a situation from re-occurring; and
(3) Bexar County veterans as a whole are in “imminent danger” due to the systematic
termination of their benefits. See Dkt. No. 15 at 7-8, 11. While the undersigned is sympathetic to
Becker’s situation and the emotional distress he alleges he suffered, none of his arguments would
appear to prohibit a finding of mootness.
“As a general rule, any set of circumstances that eliminates actual controversy after the
commencement of a lawsuit renders that action moot.” Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 527 (5th Cir. 2008) (quotation marks omitted). Although “[a] case should
not be declared moot as long as the parties maintain a concrete interest in the outcome and
effective relief is available to remedy the effect of the violation,” id., any actionable harm for
which Becker sought redress appears to have been remedied. Monetary damages for the
emotional injuries Becker alleges he suffered are not available either against the Social Security
Administration or the Commissioner in her individual capacity. See Schweiker v. Chilicky, 487
U.S. 412, 429-30 (1988) (recognizing that “suffering months of delay in receiving the income on
which one has depended for the very necessities of life cannot be fully remedied by the ‘belated
restoration of back benefits,” but ultimately concluding that monetary damages against officials
responsible for unconstitutional conduct leading to a wrongful denial of benefits are not
permitted by the Social Security Act); Small v. Colvin, No. CV H-14-790, 2015 WL 12551992,

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at *8 (S.D. Tex. Jul. 29, 2015), report and recommendation adopted, 2015 WL 12586075 (S.D.
Tex. Aug. 17, 2015) (doctrine of sovereign immunity barred plaintiff’s Section 1981 and ADA
claims against the Social Security Administration; Congress has only waived sovereign
immunity with respect to a district court’s review of a Commissioner’s decision under § 405(g)).
Nor does Becker’s concern that “the absence of constitutional[ly] required procedural
safeguards” puts him at a “high risk of future injury,” Dkt. No. 11 at 12, render this a live case or
controversy. See, e.g., Burton v. Bowen, 815 F.2d 1239, 1241 (8th Cir. 1987) (plaintiffs’ claims
rendered moot where benefits had been reinstated, notwithstanding fact that their benefits will be
reviewed again within the next three years).
Similarly, Becker’s request for injunctive relief to prevent his and other veterans’ benefits
from being wrongfully terminated in the future is not ripe for review; it relies on his fear of
future non-imminent, contingent events. See Lopez v. City of Houston, 617 F.3d 336, 342 (5th
Cir. 2010) (“If the purported injury is ‘contingent [on] future events that may not occur as
anticipated, or indeed may not occur at all,’ the claim is not ripe for adjudication.”) (quoting
Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). Absent a continuing
live case and controversy, which is not present here, the Court lacks jurisdiction.
Exclusivity of Section 405(g). Because Becker’s claims “arise under” the Social Security
Act, i.e., the Act provides “the standing and the substantive basis” for his claims, Becker’s
claims “may be heard in federal court only if [he is] in compliance with Section 405(g).”
Justiniano, 876 F.3d at 22-23 (citing Salfi, 422 U.S. at 760-61 and Shalala v. Illinois Council on
Long Term Care, Inc., 529 U.S. 1, 11-14 (1999)). Accordingly, Becker’s contentions that other
federal statutes, including 28 U.S.C. § 1331, the Administrative Procedures Act, 5 U.S.C.
§ 552(a)(4)(B) and 5 U.S.C. § 552(a)(4)(c), and the Mandamus Act, 28 U.S.C. 1361, bestow

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federal jurisdiction are without merit. See, e.g., Califano v. Sanders, 430 U.S. 99, 105 (1977)
(noting, “the APA is not to be interpreted as an implied grant of subject-matter jurisdiction to
review agency actions”); Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984) (rejecting
plaintiff’s contention that the district court had jurisdiction over challenge to the administrative
denial for emergency advance payments by the Social Security Administration pursuant to 28
U.S.C. § 1331 or 28 U.S.C. § 1361 because “[e]ither review is available under section 405(g) for
Social Security claims, or review is precluded completely”). For all these reasons, this case
should be dismissed.
III.

Conclusion
The undersigned RECOMMENDS that the District Court GRANT Defendant

Berryhill’s Motion to Dismiss, Dkt. No. 8, and DENY Becker’s Emergency Motion for
Prohibitory Injunction, Temporary Injunction, or Alternatively Temporary Restraining Order,
Dkt. No. 10.
Having considered and acted upon all matters for which the above-entitled and numbered
case was referred, IT IS ORDERED THAT the above-entitled and numbered case is
RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt
requested, to those not registered. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The objecting party

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shall file the objections with the clerk of the court, and serve the objections on all other parties. A
party

filing

objections

must

specifically

identify

those

findings,

conclusions,

or

recommendations to which objections are being made and the basis for such objections; the
district court need not consider frivolous, conclusory or general objections. A party’s failure to
file written objections to the proposed findings, conclusions, and recommendations contained in
this report shall bar the party from a de novo determination by the district court. Thomas v. Arn,
474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).
Additionally, failure to timely file written objections to the proposed findings, conclusions, and
recommendations contained in this report and recommendation shall bar the aggrieved party,
except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.
SIGNED this 20th day of August, 2018.

RICHARD B. FARRER
UNITED STATES MAGISTRATE JUDGE

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