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BENSON v. DEPARTMENT OF HHS

December 9, 1996

William Benson o/b/o Lee V. Fabiano, Plaintiff, against The Department of Health and Human Services of the United States, Defendant.


The opinion of the court was delivered by: SIFTON

 SIFTON, Chief Judge.

 Plaintiff Lee Fabiano, represented by her husband William Benson, has brought this action against the Secretary of Health and Human Services (the "Secretary"). Defendant filed an answer to plaintiff's complaint and now moves for judgment on the pleadings for failure to state a claim. Thereafter, plaintiff submitted a reply with an amended complaint.

 For the reasons stated below, defendant's motion is granted and plaintiff's complaint is dismissed. Leave to file the amended complaint is denied.

 BACKGROUND

 The following allegations are taken from plaintiff's complaint, reply, repleading, and two amended complaints. For the purposes of this motion, they are assumed to be true.

 Plaintiff Lee Fabiano was an employee of the Department of Health and Human Services Administration ("DHHS"). On November 2, 1983, she was injured in an automobile accident. Since then, plaintiff has pursued various forms of relief related to the accident. Shortly after her injury, she applied for benefits under New York State's no fault insurance system and received compensation for some expenses relating to the automobile accident. On September 12, 1988, she applied for Medicare health insurance. Due to her disability and her former employment with the federal government, plaintiff was found eligible for Medicare's qualified government employment coverage. She has received Medicare insurance since September 1989.

 On January 22, 1984, plaintiff's position at DHHS was reclassified by the Office of Personnel Management ("OPM"). On June 8, 1984, she was terminated from her position for cause. Plaintiff administratively appealed both decisions to the Merit Systems Protection Board ("MSPB").

 Plaintiff has filed four complaints in the Eastern District of New York relating to the above events. In January of 1985, plaintiff filed an action (CV 85-300) against the MSPB challenging its affirmation of her termination from DHHS. The case was administratively closed on July 28, 1986, for lack of prosecution. Plaintiff's appeal to the Second Circuit was dismissed for failure to file an appellate brief.

 In October of 1994, plaintiff filed an action (CV 94-4739) against the OPM challenging its reclassification of her position. Defendant was granted summary judgment on January 19, 1996. Plaintiff has appealed this order to the Second Circuit.

 In May of 1996, plaintiff filed an action (CV 96-2230) against Countrywide Insurance Company. She sought to modify an adverse arbitration decision relating to her no fault insurance claims. Defendant was granted summary judgment on July 15, 1996.

 This case is the third of the four cases. On March 10, 1995, plaintiff filed a complaint against the Secretary alleging a wide range of violations and seeking various forms of relief. On February 28, 1996, all but one cause of action alleged in the complaint was dismissed.

 In 1988, plaintiff applied for and was granted Medicare coverage to start September 1989. Because plaintiff had not applied for Medicare until September 12, 1988, the mandatory waiting period for benefits did not expire until September 1989. Plaintiff sought to have that eligibility date changed. She pursued her claim through the Social Security Administration's (the "SSA") appeals process and has submitted copies of the various decisions with respect to her claim.

 At the administrative hearing, plaintiff's representative, William Benson, claimed that plaintiff would have applied for benefits earlier had she not been misled by her supervisors. The administrative law judge (the "ALJ") rejected this argument and found her eligible for benefits as of September 1989, but ...


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