The plaintiff, however, argues that immediately after he received notice of the HRA recoupment he applied for and was granted an administrative fair hearing by the DSS. Memorandum of Plaintiff at 2. Further, although the hearing was held in April of 1984, the plaintiff maintains that he has never received notice of the disposition of the matter by DSS. Id. ("The plaintiff to this very date has not received any decision or determination on the issues raised at the hearing . . . ."); see also Complaint at 4 ("The plaintiff did request and have a fair hearing decision on the issue[;] however, he never received a decision from the fair hearing authorities in Albany, NY. The plaintiff's case was closed."). For their part, the defendants have not provided the court with any information as to the disposition of the plaintiff's fair hearing before the DSS; accordingly, it is difficult for this court to discern whether or not the three-year statute of limitations may have been tolled since April of 1984 -- at least as to the plaintiff's claim that the defendants miscalculated the recoupment. See, e.g., Spannaus v. United States Department of Justice, 824 F.2d 52, 56-57 (D.C. Cir. 1987) ("Tautologically, a suit cannot be maintained in court -- and a cause of action does not 'first accrue' -- until a party has exhausted all administrative remedies whose exhaustion is a prerequisite to suit."). Insofar as the submissions of the parties are extremely vague on the subject of the plaintiff's fair hearing -- and insofar as clarification of that matter would almost surely necessitate reference to "matters outside the pleading" -- the court declines to rule on this aspect of the defendants' statute of limitations defense.
Although the statute of limitations may have been tolled with respect to the plaintiff's claim that the defendants Vesely and Presser miscalculated the amount of the recoupment, it was not tolled with respect to the plaintiff's claim that due process entitles him to a pre-recoupment hearing. As stated by the Second Circuit in Higgins v. New York Stock Exchange, Inc., 942 F.2d 829, 833 (2d Cir. 1991): "Equitable tolling . . . applies only when resort to an agency is a jurisdictional prerequisite to seeking review in federal court." Here, the plaintiff's application to DSS for a fair hearing was by no means a "jurisdictional prerequisite" to his challenge under Section 1983 of the due process adequacy of a post-recoupment hearing; indeed, he could have brought this claim the day he received notice from the HRA that part of his SSI award had been withheld. Accordingly, the claim against the defendants Vesely and Presser as to the constitutionality of post-recoupment hearings was untimely filed and is now barred.
2. Due Process and the Post-Recoupment Hearing
Even if the plaintiff's claim that the post-recoupment hearing is inadequate as a matter of due process were not time-barred, however, this court would still have to dismiss it for failure to state a claim on which relief can be granted. In Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the Supreme Court determined that, as to the termination of disability benefits, due process does not require a pre-termination hearing; rather, the court held, a post-termination hearing is adequate. Id. at 349. The Court there determined that the "identification of the specific dictates of due process generally requires consideration of three distinct factors":
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335.
It is patent that the interest of the plaintiff here is similar to that of the plaintiff in Eldridge but is nonetheless of lesser magnitude. Here, the interest of the plaintiff is in the expeditious receipt of all the retroactive benefits to which he is entitled; there, the interest of the plaintiff was in uninterrupted benefits. However, in this case, the plaintiff -- who by definition has been receiving interim assistance from the state -- is confronted with a withholding of money from an award of retroactive disability benefits; that is, he is confronted with a possible delay in the receipt of his retroactive benefits. Indeed, as one court has noted, a pre-recoupment hearing would only lengthen the period in which SSI recipients would have to await their retroactive awards. Moore v. Colautti, 483 F. Supp. 357, 373 (E.D. Pa. 1979), aff'd, 633 F.2d 210 (1980). In Eldridge, by contrast, the plaintiff faced the termination of such benefits altogether. Thus, the interest of this plaintiff is less compelling than that of the plaintiff in Eldridge. As to the second factor -- "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards" -- the balance tips away from the plaintiff. Calculation of the appropriate amount of recoupment is foremost a matter of determining the total interim benefits paid to the applicant by the state and of subtracting that sum from the SSI award. Insofar, then, as recoupment determinations are almost mechanical, the "risk of an erroneous determination" is only marginally greater if the required hearing is held after the recoupment rather than before the withholding. Finally, the interest of the state in the existing procedures is no less here than it was in Eldridge: "Experience with the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial." Eldridge, 424 U.S. at 347.
Eldridge controls the disposition of this plaintiff's claim: If due process does not require a hearing before the termination of disability benefits, it necessarily follows that due process does not require a hearing before disability benefits are withheld for the purposes of state agency recoupment. The interest of the recipient is simply stronger in the former case than in the latter. Accord: Moore, 483 F. Supp. at 373 ("Balancing the factors considered by the Supreme Court in Mathews v. Eldridge, we conclude that the post-collection hearing currently provided for [state interim assistance] recipients satisfies the dictates of procedural due process.") Accordingly, this claim must be dismissed as against the defendants Vesely and Presser.
3. Due Process and the Miscalculation of Recoupment
The plaintiff's other claim against the defendants Vesely and Presser is that they "made at least two (2) mistakes and errors in calculating the amount of money" which the state was entitled to recoup. Complaint at 5. See also id. at 6 ("There were several errors made in calculating the money owed to the defendants-agency."). As alleged, however, the plaintiff has not stated a claim that these defendants "deprived" him of property in violation of the Fourteenth Amendment. As the Supreme Court stated in Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986): "The Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." That is, a "mere lack of due care" by a state official is not cognisable as a "deprivation" under the Fourteenth Amendment. Id. at 330-31. Because the plaintiff here has only alleged that the defendants Vesely and Presser mistakenly miscalculated the amount of the recoupment, he does not state a claim of deprivation of property without due process of law. Accordingly, his second claim against these defendants must also be dismissed.
For the reasons set forth above, the motion of the defendants Vesely and Presser is granted; this action is dismissed in its entirety as against those two defendants.
Dated: Brooklyn, New York
July 15, 1992
I. Leo Glasser, U.S. D. J.
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