United States District Court, N.D. Indiana, Fort Wayne Division
CHRISTOPHER E. WASHINGTON, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
A. BRADY JUDGE
Christopher E. Washington, proceeding pro se, has sued the
Social Security Administration. This matter is before the
Court on Defendant's Motion to Dismiss Plaintiff's
Complaint or Alternatively Summary Judgment [ECF No. 13].
Defendant moves to dismiss Plaintiffs' claim for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), or for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). Alternatively, Defendant asks for summary
February 8, 2019, Plaintiff filed his Complaint in Allen
Superior Court. On March 19, 2019, Defendant removed
Plaintiff's Complaint to federal court pursuant to 28
U.S.C. § 1442(a)(1). On May 15, 2019, Defendant moved to
Dismiss Plaintiff's Complaint or, alternatively, for
summary judgment. Defendant provided notice of the filing to
Plaintiff, advising Plaintiff of his obligation to respond.
On May 20, 2019, Plaintiff filed a Response, addressing two
of Defendant's arguments. Plaintiff asserts that he
exhausted administrative remedies before filing his lawsuit,
and that the derivative jurisdiction doctrine is not a bar.
20, 2019, Plaintiff sought leave to file an Amended Complaint
[ECF No. 21]. Because Federal Rule of Civil Procedure
15(a)(1)(B) permits this amendment as a matter of course, the
Court deems the operative pleading to be the Amended
Complaint [ECF No. 21-1] that Plaintiff attached to his
Motion. According to the Amended Complaint, this is a cause
of action for discrimination pursuant to Title II of the
Social Security Act, and pursuant to Indiana Code §
22-9-1-2, based on “race, sex, disability, national
origin, etc.” (Am. Compl. ¶ 1.) Plaintiff alleges
that Defendant forced him to pay back overpayments to the
Social Security Administration at a rate of $100.00 per month
until his balance was paid in full. Plaintiff did not agree
with the decision to reduce his monthly payments by $100.00,
but all his appeals of the decision were denied. He has
suffered emotional distress as well as pain and suffering.
Plaintiff requests damages in the amount of $100 million.
Rule 8's pleading requirements, a Plaintiff must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief” that is sufficient
to provide the defendant with “fair notice” of
the claim and its basis. Fed.R.Civ.P. 8(a)(2). To assure that
a pleading suffices to give effective notice to the opposing
party, a complaint must contain facts that are sufficient,
when accepted as true, to “state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Pleadings that fail
to meet this standard are subject to dismissal under Federal
Rule of Civil Procedure 12(b)(6). Although the court must
accept as true all well-pleaded facts and draw all
permissible inferences in the Plaintiff's favor, it need
not accept as true “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555). Legal
conclusions can provide a complaint's framework, but
unless well-pleaded factual allegations move the claims from
conceivable to plausible, they are insufficient to state a
claim. Id. at 680. A plaintiff can also plead
himself out of court if he pleads facts that preclude relief.
See Atkins v. City of Chi., 631 F.3d 823, 832 (7th
Rule of Civil Procedure 12(b)(1) provides for dismissal of a
case if the court lacks the statutory authority to hear and
decide the dispute. The standard of review for a Rule
12(b)(1) motion to dismiss depends on the purpose of the
motion. See United Phosphorous, Ltd. v. Angus Chem.
Co., 322 F.3d 942, 946 (7th Cir. 2003). If subject
matter jurisdiction is not evident from the face of the
complaint, a court must analyze the motion like any other
motion to dismiss and assume for purposes of the motion that
the allegations in the complaint are true. Where the
complaint is formally sufficient, but the contention is that
there is no subject matter jurisdiction, the movant may use
affidavits and other materials to support the motion. The
burden of proof on the Rule 12(b)(1) issue is on the party
asserting jurisdiction. Id.
maintain a viable claim against the United States in federal
court, a party must satisfy two requirements. In particular,
the plaintiff not only must identify a statute that confers
subject matter jurisdiction on the district court but also a
federal law that waives the sovereign immunity of the United
States to the cause of action.” Macklin v. United
States, 300 F.3d 814, 819 (7th Cir. 2002).
“Failure to satisfy either requirement mandates the
dismissal of the plaintiff's claim.” Id.
The United States Supreme Court has said that
“[s]overeign immunity is jurisdictional in
nature.” F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994); see also 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.”). Any waiver of sovereign immunity
“must be unequivocally expressed in statutory
text” and cannot be implied. Lane v. Pena, 518
U.S. 187, 192 (1996). The plaintiff bears the burden of
establishing that any waiver of sovereign immunity
encompasses his claim. See Lundeen v. Mineta, 291
F.3d 300, 304 (5th Cir. 2002).
Social Security Act creates a right to seek review of a final
agency decision and provides a waiver of sovereign immunity.
The Act provides for judicial review of “any final
decision of the [agency] made after a hearing.” 42
U.S.C. § 405(g). The Act is clear that review is
available only “as herein provided”-that is, only
under the terms of § 405(g). 42 U.S.C. § 405(h);
see also Smith v. Berryhill, __ S.Ct. __, No.
17-1606, 2019 WL 2257159, at *3 (U.S. May 28, 2019); 20
C.F.R. § 404.900. Thus, judicial review is limited to a
particular type of agency action-a “final decision . .
. made after a hearing.” Plaintiff has not asserted
claims that fall within this grant of authority or the waiver
of sovereign immunity.
allegations show his disagreement with Defendant's
decision to withhold $100.00 per month from his benefits.
“Whenever the Commissioner of Social Security finds
that more or less than the correct amount of payment has been
made to any person under this subchapter, proper adjustment
or recovery shall be made, under regulations prescribed by
the Commissioner of Social Security.” 42 U.S.C. §
404(a)(1). The Social Security Act's governing
regulations specifically exclude from administrative and
judicial review a decision to withhold “less than the
full amount of your monthly benefit to recover an
overpayment.” 20 C.F.R. § 404.903(e); cf.
20 C.F.R. § 404.902 (listing agency actions that are
initial determinations subject to the administrative review
process and judicial review). Accordingly, this Court has no
authority to review Defendant's decision to withhold
$100.00 from Plaintiff's payments.
this Court would have jurisdiction to review the
Commissioner's final decision to deny a request to waive
that payment adjustment. Section 404(b) of the Act provides
that in a case “in which more than the correct amount
of payment has been made, there shall be no adjustment of
payments to . . . any person who is without fault if such . .
. recovery would defeat the purpose [of Title II of the Act]
or would be against equity and good conscience.” 42
U.S.C. § 404(b). The implementing regulations provide a
process for requesting such a waiver. 20 C.F.R. §
404.506; see also 20 C.F.R. § 404.930. It is a
four-step process that begins with a request for waiver and
culminates in an ALJ hearing and review by the Appeals
Amended Complaint references an appeal of “the
decision, ” without explanation whether this was the
decision to withhold $100.00 or the decision to deny a
waiver. Defendant provides the Declaration of Kimberly
Johnson, a Program Expert for Region V of the Social Security
Administration as evidence that, although Plaintiff filed a
waiver request, he did not exhaust the administrative
remedies related to that request.
Court must first decide whether it can look to the
Declaration when deciding Defendant's Motion. A court
can, of course, consider evidence going to subject matter
jurisdiction when considering a motion pursuant to Federal
Rule of Civil Procedure 12(b)(1). See Apex Digital, Inc.
v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir.
2009). However, whether a plaintiff has exhausted his
administrative remedies, though a prerequisite to suit, does
not implicate federal subject matter jurisdiction and is
better addressed under Rule 12(b)(6) than Rule 12(b)(1).
See Smith, No. 17-1606, 2019 WL 2257159, at *5
(referring to the administrative exhaustion prescribed by the
Social Security Administration as
“nonjurisdictional”). Accordingly, for the court
to consider matters outside the pleadings, it ...