United States District Court, S.D. New York
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
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.
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.
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;
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
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;
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
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.
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.
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 retirement benefits. He seeks damages in the
amount of $2,200,009,597. (Compl. at 13, 22.)
The Rule 12(b)(1) and 12(b)(6) Standard
On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries
the burden of establishing that subject matter jurisdiction exists over
his complaint. Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.
In considering a motion to dismiss pursuant to Rule 12(b)(6), the
court should construe the complaint liberally, "accepting all factual
allegations in the complaint as true, and
drawing all reasonable inferences In the plaintiff's favor."
Chambers v. Time Warner. Inc., 282 F.3d 147, 152 (2d Cir. 2002)
(citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)).
"The issue is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims."
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d
Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-236
(1974)). Dismissal is only appropriate when "it appears beyond doubt that
the plaintiff can prove no set of facts which would entitle him or her to
relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
I. Defendants' Motion to Dismiss
A. There Is No Jurisdiction under the FTCA
1. The Doctrine of Sovereign Immunity Bars
Langella's FTCA Claims
The United States has sovereign immunity and is only subject to suit
according to the terms of its consent to be sued. United States v.
Dalm, 494 U.S. 596, 608 (1990) ("[T]he terms of the [United States']
consent to be sued in any court define [the] court's jurisdiction to
entertain the suit.") (citations omitted). Langella brings a claim under
the FTCA, which in certain circumstances
provides for suits by citizens against the United States for torts
committed by government agents.
Under the FTCA, suit must be brought directly against the United
States, and federal agencies are immune from suit.
28 U.S.C. § 2679(a); Myers & Myers, Inc. v. United States
Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975). As provided in
28 U.S.C. § 2679(b)(1), suit against the United States is the
exclusive remedy in an action for damages for injury or loss or property
"resulting from the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
Furthermore, in this case the United States may not be named as
defendant in an FTCA suit because the Social Security Act specifically
states that "no action shall be brought against the United States, the
Commissioner of Social Security, or any officer or employee
thereof . . . to recover on any claim arising under this title."
42 U.S.C. § 405(h). This is so even if the plaintiff raises constitutional
claims. Weinberger v. Salfi, 422 U.S. 749, 761 (1975) (holding
that as the Social Security Act provides "both the standing and the
substantive basis for the presentation of [the] constitutional
contentions," "405(h) precludes resort to federal-question jurisdiction
for the adjudication of appellees' constitutional contentions.").
Thus, as the Second Circuit explained in Langella I.
"Langella cannot bring his claims under the Federal Tort Claims Act
because negligent mishandling of social security benefits is not
cognizable under this statute." Langella, 6 Fed. Appx. at
2. Langella's Does Not Meet the
FTCA's Requirement of Administrative
In addition, the FTCA requires that before a claimant may initiate an
action against the United States, "the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall
have been finally denied." 28 U.S.C. § 2675(a). "The burden is on the
plaintiff to both plead and prove compliance with the statutory
requirements. In the absence of such compliance, a district court has no
subject matter jurisdiction over the plaintiff's claim." In re Agent
Orange Prod. Liab. Litig., 818 F.2d 210
, 214 (2d Cir. 1987)
(citations omitted). The requirement that an administrative claim be
filed and finally denied "is jurisdictional and cannot be waived."
Keene Corp. v. United States, 700 F.2d 836
, 841 (2d Cir.).
cert. denied. 464 U.S. 864
(1983); see also
McNeil v. United States, 508 U.S. 106, 113 (1993);
Robinson v. Overseas Military Sales Corp., 21 F.3d 502
(2d Cir. 1994).
B. The Doctrine of Absolute
Immunity Bars Langella's Tort Claims
As explained in Langella I by the Second Circuit, the United
States and the various individual defendants, sued in their official
capacities are immune from suit. Langella, 6 Fed. Appx. at 117
(citing 42 U.S.C. § 405 (h); United States v. Nordic Village
Inc., 503 U.S. 30, 34 (1992) (discussing immunity of United States)
Robinson v. Overseas Military Sales Corp., 21 F.3d 502
, 510 (2d
Cir. 1994) (discussing federal officers acting in their official
capacity); Fields v. Soloff, 920 F.2d 1114
, 1119 (2d Cir. 1990)
(discussing judicial immunity)).
The Supreme Court has extended the doctrine of absolute immunity from
tort liability to ALJs on the basis that the importance of preserving the
independent judgment of ALJs outweighs the risk of an unconstitutional
act by one presiding at an agency. Butz v. Economou,
438 U.S. 478, 514 (1978). The alleged torts occurred while the ALJs were
performing duties within the scope of their employment with the SSA and
are entitled to absolute immunity from claims of damages arising out of
C. With the Exception of
Langella's Tort Claims against the ALJs, the
Doctrines of Res Judicata and Collateral
Estoppel Bar Langella's Tort and Constitutional
With the exception of Langella's tort claims against the ALJs,
Langella's tort and constitutional claims have been pursued in two
previous actions and are thus barred by res. judicata and collateral
"The doctrine of res judicata precludes the filing of repetitious
actions seeking the same relief." Spavento v. United States,
891 F. Supp. 173, 174 (S.D.N.Y. 1995). A judgment on the merits of an
action precludes a party or its privies from relitigating issues that
were or could have been raised in that action. Alien v.
McCurry, 449 U.S. 90, 94 (1980); Rivet v. Regions Bank of
La., 522 U.S. 470, 476 (1998); Greenberg v. Bd. of Governors
of the Fed. Reserve. Sys., 968 F.2d 164, 168 (2d Cir. 1992). Res
judicata thus precludes the subsequent litigation of any claims arising
from the same transaction or series of transactions at issue in the
prior suits. Computer Assocs. Int'l, Inc. v. Altai. Inc.,
126 F.3d 365, 369 (2d Cir. 1997) (citing Interoceanica Corp.
v. Sound pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997).
In determining whether res judicata applies, a court must examine three
factors: (1) whether the previous action involved a judgment on the
merits; (2) whether the previous action involved
the same parties or those in privity with them; and (3) whether the
claims asserted in the present action were, or could have been, raised
in the previous action. Monahan v. New York City Dep't of
Corr., 214 F.3d 275, 285 (2d Cir. 2000).
Langella I and Langella II resulted in
adjudications on the merits and both involved the same parties or those
in privity with the same parties. Furthermore, the issues raised in the
instant action were, or could have been, raised in Langella I
and Langella II. The claim that the SSA erroneously denied
Langella's request to waive the overpayment of retirement benefits has
been raised in all three suits. Allegations that Defendants violated his
rights under the Amendments have also been raised in all three suits,
with the exception of the particular ALJs who have been sued only in the
present case. The claim that 42 U.S.C. § 402(x) is unconstitutional
is raised presently and was also raised in Langella I.
As the Second Circuit explained:
This court has ruled that the suspension of Social
Security benefits during incarceration does not
violate either due process or equal protection.
See Zipkin v. Heckler,
790 F.2d 16, 19 (2d Cir. 1986) (per curiam).
Moreover, every circuit court to consider whether
section 402(x) violates the prohibitions against
bills of attainder or ex post facto laws has
concluded that it does not, and we decline to take
this opportunity to hold otherwise at this time.
Langella, 6 Fed. Appx. at 117.
Likewise, Langella's tort and constitutional claims are barred by the
doctrine of collateral estoppel, with the exception of his tort claims
against the ALJs. Collateral estoppel applies when (1) the issues in both
proceedings are identical, (2) the issue in the prior proceeding was
actually litigated and actually decided, (3) there was a full and fair
opportunity for litigation in the prior proceeding, and (4) the issue
previously litigated was necessary to support a valid and final judgment
on the merits. Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44
(2d Cir. 1986).
As stated above, the issues raised in this suit are identical to the
prior proceedings. The claim that the SSA erroneously denied Langella' s
request to waive the overpayment of retirement benefits has been raised
in all three suits. Allegations that Defendants violated his rights under
the Amendments have also been raised in all three suits, with the
exception of the particular ALJs who have only been sued in the present
case. The claim that 42 U.S.C. § 402 (x) is unconstitutional is
raised presently and was also raised in Langella issues were
litigated and decided in the prior cases with a full and fair opportunity
for litigation. Finally, the issues previously litigated were necessary
to support a valid and final judgment on the merits.
D. Bennett v. Arkansas Is Inapplicable
Langella cites the Supreme Court case Bennett v. Arkansas,
485 U.S. 395 (1988) as the controlling law in this case. In Bennett
v. Arkansas, there was a conflict between Arkansas law, which
authorized the seizure of a prisoner's Social Security and Veterans'
benefits in order to help defray the cost of maintaining its prison
system, and federal law, which exempted these funds from legal process.
See 42 U.S.C. § 407(a). The Supreme Court held that the
Supremacy Clause prohibited Arkansas from attaching prisoners' Social
Security and Veterans' benefits. Bennett does not apply here as
the SSA stopped the payment of Langella's retirement benefits; there is
no conflict between state and federal law; and no state has sought to
attach Langella's benefits.
E. Langella's Appeal of the
SSA's Denial of Waiver of Recovery of
Defendants further argue that Langella's appeal of the SSA's April 30,
2003 decision, denying his request for waiver of recovery of overpayment
of retirement benefits pursuant to 42 U.S.C. § 402(x) is untimely
within the 60 days from receipt of notice as prescribed by statute.
42 U.S.C. § 405(g) provides, "Any civil action . . . must be
instituted within 60 days after . . . notice of the decision by the
Appeals Council is received by the individual. . . . [T] he
date of receipt of . . . notice of decision by the Appeals
Council shall be presumed to be 5 days after the date of such notice,
unless there is a reasonable showing to the contrary." See also
20 C.F.R. § 422.210 (c). The plaintiff thus has 65 days from the date of a
final decision notice to file suit. Matsibekker v. Heckler,
738 F.2d 79, 81 (2d Cir. 1984); Velez v. Apfel, No. 99-6314, 2000
U.S. App. LEXIS 25417, at *2-3 (2d Cir. Oct. 6, 2000).
Sixty-five days from the SSA's April 30, 2003 decision is Friday, July
4, a legal holiday. Under Fed.R.Civ.P. 6(a), the last day of a period
shall not be included if it is a Saturday or Sunday or legal holiday.
Langella thus had to file suit by July 7. Langella served his complaint
on the United States Attorney's Office on July 2, 2003, and he filed his
complaint with the pro se office on July 10, 2003.*fn5
42 U.S.C. § 405(g)'s sixty-day requirement is a statute of
limitations that is subject to equitable tolling. Bowen v. City of
New York, 476 U.S. 467, 480 (1986). Moreover, the statute containing
this limitations period was designed by Congress to be "unusually
protective of claimants." Id. at 480 (quoting
Heckler v. Day, 467 U.S. 104, 106 (1984)). Because of the
protective nature of the statute for claimants, the Second Circuit has
observed that equitable tolling of the limitations period is "not
infrequently appropriate."State of New York v. Sullivan,
906 F.2d 910, 917 (2d Cir. 1990); accord Canales v. Sullivan,
936 F.2d 755, 758 (2d Cir. 1991); Davila v. Barnhart,
225 F. Supp.2d 337, 338 (S.D.N.Y. 2002).
For equitable tolling to apply, the plaintiff must establish that
"exceptional circumstances" existed and that (s)he acted with "reasonable
diligence." Torres v. Barnhart, No. 02 Civ. 9209, 2003 U.S.
Dist. LEXIS 21321, at *8-9 (S.D.N.Y. Nov. 21, 2003); Smaldone v.
Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). These circumstances
exist in this case, where plaintiff is pro se; he timely served
his complaint on Defendants; and he filed his complaint with the court
only three days after the deadline.
Thus, Langella's appeal of the SSA's April 30, 2003 decision survives.
II. Langella's Motions to Deny and Defendants'
Memorandums of Law
Langella claims that Defendants did not timely file their motion to
dismiss pursuant to Fed.R.Civ.P. 12(a)(3), which provides that the
United States, along with its agencies, officers, and employees, have
sixty days in which to answer after the United States Attorney is served
with a complaint. Langella served the complaint on the United States
Attorney's Office on July 2, 2003,
and again on July 10, 2003 (the date on which the complaint was filed).
Sixty days from July 2, 2003 was Sunday, August 31, 2003, and September
1, 2003 was Labor Day. Therefore, the Defendants' motion to dismiss was
due on September 2, 2003. Fed.R.Civ.P. 6(a).
The Defendants addressed a letter to the Court on August 27, 2003,
seeking an extension of time to answer or move to dismiss Langella's
complaint. Defendants were granted an extension until October 21, 2003,
pursuant to Fed.R.Civ.P. 6(b)(1), which allows the granting of an
extension for cause shown if the request is made before the expiration of
the period originally prescribed. Defendants' motion to dismiss was
therefore timely filed on October 21, 2003.
Langella also claims that Defendants' Reply was untimely. Langella
served his response to Defendants' motion to Dismiss on the government on
October 31, 2003. Defendants' Reply was thus due by November 7, 2003. On
November 5, Defendants requested an extension which the Court granted for
an additional two weeks till November 21, 2003. Defendants' Reply
was timely submitted on November 21, 2003.
Additionally, Langella raises issues in his motions against the pro se
clerk that are not part of this action.
Defendants' motion to dismiss the complaint is granted in part and
denied in part, leaving as the sole issue his appeal of the SSA decision.
Langella's motions are denied.
It is so ordered.