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 ...