United States District Court, S.D. Indiana, Indianapolis Division
LAUREL G. PIERCE, Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
J. McKINNEY, JUDGE.
Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration (the “Commissioner”) has moved to
dismiss Plaintiff Laurel G. Pierce's
(“Pierce's”) Complaint asserting that the
Court lacks jurisdiction over Pierce's claims under both
42 U.S.C. §405(g) and the Federal Torts Claims Act
(“FTCA”) and/or Pierce failed to exhaust her
administrative remedies as required. Dkt. No. 10. Pierce,
acting pro se, argues that she did not need to
exhaust any administrative remedies under the FTCA because
the Social Security Administration (“SSA”) was
well aware of the issues involved in her disability benefits
claims. Moreover, in a document entitled “Update and
Motion to Proceed with Claim” (“Update
Motion”), Pierce states that she filed a claim under
the FTCA, which was denied because the statute of limitations
had run and because the issues were not properly brought
under the FTCA, rather, they should be decided by the SSA and
the appeals process associated therewith. Dkt. No. 18.
FACTUAL & PROCEDURAL BACKGROUND
alleges that in 2006 she sought Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). Compl. at 1. After seeking judicial
review of the SSA's denial of benefits in 2010,
see Cause No. 1:10-cv-01451-SEB-MJD, her case was
remanded to the Commissioner pursuant to sentence four of 42
U.S.C. § 405(g). See Pierce v. Comm'r of Social
Security, 1:10-cv-01451-SEB-MJD. The Commissioner
awarded Pierce benefits in 2015. Compl. at 1. Pierce now
alleges that the 9-year process seeking benefits caused her
damages, “unnecessary hardship, ” and harm to her
“emotional and mental health.” Comp. at 1-3. On
March 17, 2016, Pierce filed the instant Complaint in which,
in essence, she seeks damages for the period during which she
sought benefits from the SSA. Compl. at 2-3. In her Update
Motion, Pierce explains that she filed a Tort claim after the
Commissioner filed her Motion to Dismiss, which was denied;
therefore, Pierce asserts, she has exhausted her
administrative remedies and the case should proceed.
Commissioner maintains that the Court lacks subject matter
jurisdiction over Pierce's claims because Congress did
not waive sovereign immunity for claims against the SSA. Dkt.
No. 11 at 1 n.1. In the alternative and under Seventh Circuit
precedent, the Commissioner seeks dismissal pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (“Rule
12(b)(6)”) for failure to exhaust administrative
remedies. Id. (citing Collins v. United
States, 564 F.3d 833, 838 (7th Cir. 2008):
Frey v. EPA, 270 F.3d 1129, 1135 (7th
Cir. 2001)). In light of Seventh Circuit precedent, the Court
uses the Rule 12(b)(6) standard here.
12(b)(6) permits the dismissal of a claim for failure to
state a claim upon which relief can be granted in the
pleadings. A pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but a plaintiff's complaint
may not merely state “an unadorned, the
Iqbal, 556 U.S. at 678. Rather, “a complaint
must contain sufficient factual matter … to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atlantic
Corp v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged[, ]” not when the plaintiff only raises a
“sheer possibility that the defendant has acted
unlawfully.” Id. “[T]he height of the
pleading requirement is relative to the circumstances[,
]” Cooney v. Rossiter, 583 F.3d 967, 971
(7th Cir. 2009), and “[d]etermining the
plausibility of a claim is a context-specific task that
requires [the Court] to draw on [its] judicial experience and
common sense.” Brown v. JP Morgan Chase Bank,
334 Fed.Appx. 758, 759 (7th Cir. 2009).
Court concludes that Pierce failed to exhaust her
administrative remedies prior to filing suit; therefore, her
Complaint must be dismissed. The law is clear that any claim
arising under the Social Security Act must be brought first
to the Commissioner. See 42 U.S.C. §§
405(g) & (h). Pierce makes no allegation here that she
filed her claim with the Commissioner.
Pierce had brought such a claim to the Commissioner, §
405(g) does not contemplate money damages for any delay in
awarding benefits under DIB and SSI, rather Pierce is only
entitled to back payment of damages wrongfully withheld.
See Marks v. U.S. Social Sec. Admin., 906 F.Supp.
1017, 1022 (E.D. Va. 1995), aff'd in part and
vac'd in aprt on other grnds.; Ostroff v. State
of Florida, 554 F.Supp. 347, 352 (M.D. Fla. 1983).
Therefore, Pierce should have brought any allegation that she
was entitled to more benefits, or back payment of benefits,
to the Commissioner first.
to the extent that Pierce seeks relief under the FTCA, 42
U.S.C. § 405(h) seems to specifically precludes such
avenue when the claim arises out of a Social Security
dispute. 42 U.S.C. § 405(h) states, “No action
against the United States, the Commissioner of Social
Security or any officer or employee thereof shall be brought
under section . . . 1346 of Title 28, United States Code, to
recover on any claim arising under this subchapter.”
See also Tallman v. Reagan, 846 F.2d 494, 495
(8th Cir. 1988) (“The Social Security Act,
42 U.S.C. § 405(h), precludes a FTCA action ‘to
recover on any claim arising under this
subchapter.'”); Carter v. Social Sec. Field
Office, No. 02 C. 5526, 2004 WL 609316, at *4 (N.D. Ill.
Mar. 22, 2004) (stating that any FTCA claim would be barred
because “the Social Security Act precludes . . . an
action for Title II benefits under the FTCA”).
Pierce could properly bring claims of negligence and/or
negligent infliction of emotional distress against the
Commissioner under the FTCA, she admits in her Update Motion,
which the Court considered in the nature of a surreply, that
she filed a tort claim after institution of this lawsuit.
See Dkt. No. 18 at 1 & 3 (stating, in part, that
“ALL administrative efforts have NOW been
exhausted” (emphasis in original)). It is a
prerequisite to filing a complaint in this Court that a FTCA
claimant present the claim to the agency first and receive a
denial. See 28 U.S.C. § 2675(a) (“An
action shall not be instituted . . . unless the claimant
shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied
by the agency in writing.”). This requirement may not
be waived. See McNeil v. United States, 508 U.S.
106, 111-12 (1993) (concluding that Congress intended for
claimants to completely exhaust administrative remedies prior
to initiating suit). Moreover, this requirement cannot be
overcome by amendment of the Complaint. See Duplan v.
Harper, 188 F.3d 1195, 1199 (10th Cir. 1999)
(concluding that to allow suits under the FTCA to proceed by
amendment “would render the exhaustion requirement
meaningless”); Waters v. Anonymous Hosp. A,
No. 1:10-cv-00983-LJM-MDJ, 2011 WL 1458161, at *4 (S.D. Ind.
Apr. 14, 2011).
the Commissioner's Motion to Dismiss is
GRANTED and this action shall be dismissed
without prejudice. Plaintiff Laurel G. Pierce's Update
Motion is DENIED. The Court shall enter