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Edward Hogan v. Michael J. Astrue

May 1, 2012

EDWARD HOGAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, HAROLD MORGAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, FREDERICK J. LAMPHERE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, MAXINE SUTTON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

This is a putative class action by three claimants, on behalf of themselves and others similarly situated, whose claims for Social Security Disability Insurance and/or Supplemental Security Income benefits were denied, in whole or in part, by former Administrative Law Judge ("ALJ") Franklin T. Russell.*fn2 ALJ Russell retired from the Social Security Administration on June 28, 2006.

Plaintiffs request a declaratory judgment that ALJ Russell was biased, and that his bias and refusal to apply pertinent law deprived claimants of fair hearings on their claims, and violated their rights under the Social Security Act and the Fifth Amendment to the United States Constitution. Plaintiffs also seek an injunction requiring the Commission to remand their cases for new hearings before different ALJs.*fn3

The Commissioner now moves to dismiss the complaint (Dkt. #10), on the grounds that the Court lacks jurisdiction, and/or that plaintiffs' claims are untimely. For the reasons discussed below, that motion is granted.

INTRODUCTION

Each of the plaintiffs filed a claim for Social Security disability or income benefits which was denied by ALJ Russell. Plaintiff Edward Hogan's claim was denied by ALJ Russell on January 25, 2002, which became the final decision of the Commissioner when the Appeals Council denied review on October 25, 2002. Plaintiff Harold Morgan received an unfavorable decision from ALJ Russell on February 13, 2001, which became the final decision of the Commissioner when the Appeals Council denied review on June 28, 2001. Frederick Lamphere's claim was denied by ALJ Russell on June 19, 1998, and review was denied by the Appeals Council on March 14, 2001. None of the plaintiffs filed a timely appeal in federal court, or requested an extension of their time to do so.

Several years after their unfavorable decisions had become final, plaintiffs apparently became aware that other claimants had alleged that ALJ Russell was generally biased against claimants, and that the Commissioner had found that ALJ Russell was not following applicable regulations and policies. Specifically, on September 13, 2004, this Court had remanded several consolidated Social Security appeals to the Commissioner for administrative proceedings concerning the plaintiffs' ("Pronti plaintiffs") common allegations of bias against ALJ Russell. See Pronti v. Barnhart, 339 F. Supp. 2d 480 (W.D.N.Y. 2004) ("Pronti I"). After investigating the matter, the Commissioner reported on November 30, 2005 that ALJ Russell had misinterpreted, misapplied and failed to follow Social Security Administration regulations and policies. The Commissioner ordered that the Pronti plaintiffs' claims be remanded for new hearings before a different ALJ. Moreover, the Commissioner remanded all other then-pending district court cases involving decisions by ALJ Russell for new hearings before a different ALJ. The Commissioner made no finding concerning claims that ALJ Russell was generally biased.

On August 3, 2006, finding that the Commissioner's remand had provided a remedy to the Pronti plaintiffs and declining to render an advisory opinion concerning their claims that ALJ Russell was generally biased, the Court dismissed the remaining actions. See Pronti v. Barnhart, 441 F. Supp. 2d 466, 477 (W.D.N.Y. 2006) ("Pronti II").

DISCUSSION

I. Jurisdiction

Initially, I find that this Court has no basis to exercise jurisdiction over the plaintiffs' claims, outside of the limited jurisdiction afforded pursuant to 42 U.S.C. §405(g) and (h).

While plaintiffs allege that the Court may exercise federal question jurisdiction, the Supreme Court has conclusively held that 42 U.S.C. §405(h) precludes such jurisdiction for claims arising under the Social Security Act. See Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 13-14 (2000). See also Heckler v. Ringer, 466 U.S. 602, 616 (1984) ("the inquiry in determining whether §405(h) bars federal-question jurisdiction must be whether the claim 'arises under' the Act, not whether it lends itself to a 'substantive' rather than a 'procedural' label").

Plaintiffs alternatively claim mandamus jurisdiction pursuant to 28 U.S.C. §1361, which is not precluded by 42 U.S.C. §405(h) in Social Security cases "where the writ would properly issue," City of New York v. Heckler, 743 F.2d 729, 739 (2d Cir. 1984), so long as a plaintiff "has exhausted all other avenues of relief and only if the defendant owes him a clear non-discretionary duty." Pronti I, 339 F. Supp. 2d 480 at 500, quoting Heckler, 466 U.S. 602 at 616. Here, as discussed in greater detail below, plaintiffs failed to exhaust all other avenues of relief when they failed to timely appeal their unfavorable decisions. As such, the exercise of mandamus jurisdiction would be inappropriate. See Heckler, 466 U.S. 602 at 616-617 (plaintiffs who have not timely appealed the denial of claims pursuant to 42 U.S.C. §405(g) have not exhausted all avenues of relief, and are not entitled to mandamus jurisdiction).

Accordingly, the Court's jurisdiction in this matter is limited to the review of the Commissioner's final decisions in the plaintiffs' underlying cases pursuant to 42 U.S.C. §405(g). While conflicting authorities exist, the district court's jurisdiction under 42 U.S.C. §405(g) does not, in my view, extend to engaging in independent fact-finding with regard to ALJ Russell's alleged bias. See Grant v. Shalala, 989 F.2d 1332, 1339-1344 (3d Cir. 1993) (a district court lacks the authority to engage in its own fact-finding in a matter alleging ALJ bias, even where the bias claim is brought as part of a class action).See also Pronti II, 441 F. Supp. 2d 466 at 470, 477 ("federal courts are courts of limited jurisdiction [and the] power of federal courts to review final decisions in Social Security matters is also limited by statute . . . I cannot, as plaintiffs request, declare as a matter of law that ALJ Russell holds a general bias"); Pronti I, 339 F. Supp. 2d 480 at 497 ("I recognize that the ...


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