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LANGELLA v. BUSH

March 3, 2004.

FRANK LANGELLA, Plaintiff, -against- HON. GEORGE W. BUSH, President of the United States of America, ATTORNEY GENERAL JOHN ASHCROFT, KATHERINE EDGELL, A.L.J., PETER N. DOWD, A.L.J., GOVERNMENT OF THE UNITED STATES OF AMERICA, SOCIAL SECURITY ADMINISTRATION, GOVERNMENT OF THE UNITED STATES OF AMERICA, JUSTICE DEPARTMENT, Defendants


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 1

OPINION

Defendants George W. Bush, President of the United States of America; Attorney General John Ashcroft; Katherine Edgell, Administrative Law Judge ("ALJ"); Peter N. Dowd, ALJ; the Government of the United States of America; the Social Security Administration ("SSA"); and the Government of the United States of America, Justice Department (collectively, "Defendants") have moved to dismiss plaintiff Frank Langella's ("Langella") claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Langella has moved to deny and dismiss Defendants' memorandums of law.*fn1 For the reasons set forth below, Defendants' motion to dismiss the complaint is granted in part and denied in part, and Langella's motions are denied.

 Prior Proceedings

  On April 19, 1994, Langella was convicted of extortion in violation of 18 U.S.C. § 1951(a). He applied for retirement benefits and began receiving them in the summer of 1994, after his conviction but before his 18-month sentence began in the summer of 1995. Page 2

  On July 28, 1996, the SSA notified Langella that it was stopping his retirement benefits because he was imprisoned for a felony conviction, and that the SSA had overpaid Langella $9,577 by erroneously continuing to pay him retirement benefits for the first 13 months of his incarceration in contravention of 42 U.S.C. § 402(x)(1)(A). This statute provides that "no monthly benefits shall be paid under this section . . . of this title to any individual for any month . . . throughout all of which such individual (i) is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense."

  On October 17, 1996, Langella requested that the SSA waive recovery of the overpayment under 20 C.F.R. § 404.506(a), which provides that there shall be no recovery of overpayment to an individual who is without fault. After finding that Langella was not without fault in causing or accepting the overpayment, the SSA denied the request. Langella then requested a hearing before an ALJ which was held on September 24, 1998. The ALJ denied Langella's request for the waiver.

  On March 17, 2000, Langella filed a suit against several defendants, including the Government of the United States of America; William J. Clinton, U.S. President; Janet Reno, Attorney General of U.S.A.; General Counsel, Social Security Administration; Kenneth F. Apfel, Commissioner Social Security Administration; Page 3 Pamela D. Crawford, Appeals Council, Social Security Administration; John Doe, Peekskill Social Security Agency; Jane Doe, Peekskill Social Security Agency; and Herbert Rosenstein, ALJ. He claimed that the Commissioner erred in denying the waiver, that 42 U.S.C. § 402(x) is unconstitutional in that it violates due process and equal protection, and that his rights were violated under ten of the Amendments to the Constitution. He sought damages of $3 million under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"). Langella v. United States ("Langella I"), No. 00 Civ. 2067 (S.D.N.Y. April 21, 2000).

  After twice granting Langella leave to file an amended complaint, this Court sua sponte dismissed the action because there is no Bivens jurisdiction to challenge denials of Social Security or SSI benefits; it was impossible to determine from Langella's submission whether the complaint was filed within the requisite sixty days of Langella's receipt of the Appeals Council letter; and the United States and the individual defendants, sued in their official capacities, were immune from suit.*fn2 (2/12/00 Order; Page 4 6/2/00 Order.) The Court of Appeals affirmed and also ruled that Langella's challenge to the constitutionality of 42 U.S.C. § 402(x) was meritless, but remanded the issue of waiver of recovery of overpayment to this Court with instructions to remand to the SSA for a new hearing. Langella v. United States, 6 Fed. Appx. 116 (2d Cir. 2001). On August 1, 2001, this Court remanded to the SSA "for further proceedings on plaintiff's claim for waiver of overpayment under 20 C.F.R. § 404.506 (a)." (8/1/01 Order.)

  On December 19, 2001, before the new hearing was held, Langella filed a second suit against the United States and the United States Attorney for the Southern District of New York, acting in her official capacity, for claims arising out of Langella I. Langella alleged that the United States Attorney and the Court violated his rights under ten Amendments and committed torts against him, and he sought $1,600,000,000 in damages. Langella v. United States ("Langella II"), No. 01 Civ. 11583 (S.D.N.Y. June 12, 2002). The complaint was dismissed for lack of jurisdiction over Langella's FTCA claims because he failed to administratively exhaust those claims and because the allegations did not state a cause of action in tort. The Court also held that Langella failed to state a claim under section 1983 or Bivens, and that there is no private right of action for obstruction of justice under criminal statutes. Langella v. United States, No. 01 Civ. 11583, 2002 U.S.Dist. LEXIS 10039 (S.D.N.Y. June 4, 2002). The Court of Page 5 Appeals affirmed on July 2, 2003. Langella v. United States, 67 Fed. Appx. 659 (2d Cir. 2003).

  While that case was pending, a hearing was held before an ALJ on June 21, 2002, and Langella's claim for waiver was again denied on July 26, 2002. By notice dated April 30, 2003, the Appeals Council advised Langella of his right to commence a civil action pursuant to 42 U.S.C. § 405 (g) within 60 days from the date of receipt. The ALJ who presided over Langella's hearing and the ALJ who signed the notice are defendants in the present case.

  Langella filed suit in this Court on July 10, 2003 ("Langella III").*fn3 This case was assigned on to this Court on July 28, 2003 and accepted as related to Langella I. Page 6

  Defendants submitted a Motion to Dismiss on October 21, 2003. This motion was marked fully submitted on December 24, 2003. Langella submitted a second motion to deny and dismiss Defendants' memorandum of law on December 4, 2003 and a third motion to deny and dismiss Defendants' memorandum of law on January 5, 2004.

 The Complaint

  Langella presently (1) `brings claims against the Defendants under the FTCA, (2) raises various tort and constitutional claims against the Defendants, (3) alleges that 42 U.S.C. § 402(x) is unconstitutional, and (4) appeals the SSA's decision denying his request for waiver of recovery of overpayment of ...


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