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LYNN v. UNITED STATES HHS

April 25, 1983

CONRAD LYNN, Plaintiff, v UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: POLLACK

MEMORANDUM

MILTON POLLACK, Senior United States District Judge

 MEMORANDUM

 Conrad Lynn v. United States Department of Health and Human Services, 82 Civ. 4532(MP) (Pro Se)

 MILTON POLLACK, Senior United States District Judge

 Plaintiff asserts claims under both the Social Security Act and the Constitution of the United States arising out of the determination by the Social Security Administration (the "SSA") that it had made overpayments of child's insurance benefits under Title II of the Social Act, 42 U.S.C. § 401, et seq. Defendant SSA moved to dismiss the complaint under Rules 12(b)(1) and (2) of the Federal Rules of Civil Procedure. Decision on this motion was postponed until the SSA completed its redetermination of Lynn's claim. As a redeterminatin denying Lynn's claim has now been completed, the motion is ripe for decision.

 The Claims under the Social Security Act Must Be Dismissed for Failure to Exhaust Administrative Remedies

 Subject matter jurisdiction for judicial review on claims arising under the Act is provided for and limited by Sections 205(g) and (h) of the Act, 42 U.S.C. § 405(g) and (h). These Sections provide that only final decisions of the Secretary may be reviewed in federal court. In this case, there has not yet been a final decision of the Secretary. After reconsideration determinations, claimant must have a hearing before an administrative law judge under 20 C.F.R. § 404.929, and must seek review by the Appeals Council pursuant to 20 C.F.R. § 404.967 before the decision is final. As Lynn has not set forth any reasons why he will not be able to obtain fair and just review of his claim before the agency, this claim must be dismissed for failure to exhaust administrative remedies.*

 The Claims under the Constitution Are Also Dismissed

 Plaintiff seeks damages from the defendant for violation of his Constitutional rights. This claim must be dismissed for several reasons. First, a federal agency cannot be sued eo nomine. See Blackmar v. Guerre, 342 U.S. 512, 96 L. Ed. 534, 72 S. Ct. 410 (1952). As the United States Department of Health and Human Services is the named defendant in this action, this alone is adequate reason to dismiss the complaint.

 In addition, there are compelling reasons to dismiss the remaining claims on the merits.

 Claims under Section 1983

 Lynn's claims under Section 1983 fail as that Section only covers actions under color of state law. As noted in Ellis v. Blum, 643 F.2d 68, 83, n. 17, (2d Cir. 1981), Title II of the Social Security Act distributes funds that are entirely federal in origin and state agencies function solely as agents of the federal ...


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