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Dobson v. Commissioner of Social Security

United States District Court, S.D. New York

May 12, 2014

ENA DOBSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Plaintiff Ena Dobson, proceeding pro se, brings this action against the Commissioner of Social Security[1] (the "Commissioner" or "Defendant") alleging nonreceipt of her Social Security retirement checks from 2001 to 2005. Pending before the Court is Defendant's motion to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56. Defendant's motion is granted. As explained more fully below, the Commissioner's determination is not eligible for administrative or judicial review and Plaintiff may not maintain her suit here.

BACKGROUND[2]

A. Factual Background

1. Plaintiff's Social Security Retirement Benefits and Previous Interactions with SSA

The following facts are undisputed or, with respect to the issues on which Defendant has moved, construed in the light most favorable to Plaintiff.

Plaintiff Ena Dobson began receiving monthly Social Security benefit checks when she reached the age of 65. (Compl., Attachment 1). On or about May 20, 2008, Plaintiff visited a local Social Security Administration ("SSA") office and claimed that she had not received her benefit checks since 2001, a position she maintained despite being shown a number of documents purportedly indicating otherwise. (Infiesta Decl. ¶ 3). An SSA employee requested that photocopies of one of Plaintiff's benefit checks for each year from 2001 to 2008 be sent to Plaintiff. ( Id. at Ex. 1).

On September 18, 2008, Plaintiff contacted the SSA and indicated that she had received information explaining that the SSA had withheld her benefit payments from 2005 to 2008 to compensate for a previous overpayment. She maintained nonetheless that she had received no benefit checks from 2001 to 2004. (Infiesta Decl. ¶ 4 & Ex. 1; Def. 56.1 ¶ 2).[3] Plaintiff then visited a local SSA office on or about June 5, 2009, where she met with an employee identified in the record only as N. Tahirhagos. ( See Infiesta Decl. Ex. 1). Plaintiff again complained that she had not received her monthly Social Security benefit checks from 2001 through 2004. ( Id. at ¶ 5 & Ex. 1). In particular, Plaintiff indicated she had not been satisfied with the outcome of prior complaints on this matter and demanded proof that SSA in fact sent the payments to her and that she in fact had cashed them. ( Id. ). The SSA employee Tahirhagos gave Plaintiff a "Request for Reconsideration" form to complete and recorded the following remarks internally:

The Laconia office apparently has already processed the nonreceipt complaints but [Plaintiff] does not agree with the outcome so far. She insisted to file a recon[sideration] but I could not give her any valid determination date.... I am filing a recon[sideration] for her for your review so that we can go from there.

( Id. at Ex. 1).[4]

Ultimately, Tahirhagos does not appear to have filed anything on Plaintiff's behalf; instead, Plaintiff filed a Request for Reconsideration form on or about July 2, 2009, indicating that she "did not receive any check from [illegible]/2001 through 12/2004." (Infiesta Decl. Ex. 2). Plaintiff continued, "My first retirement check was received in March

2008. I am aware of the money kept for overpayment." ( Id. ). In a letter dated January 13, 2010, Anne Jacobosky, SSA Assistant Regional Commissioner, Processing Center Operations, responded to Plaintiff's Request for Reconsideration. ( Id. at Ex. 3 (the "Jacobosky Letter")). This letter advised Plaintiff that the SSA interpreted her Request for Reconsideration merely as a request for further information. If Plaintiff actually wished to request a reconsideration, the letter continued, she should contact any SSA office within 30 days. (Jacobosky Letter ¶ 1; Infiesta Decl. ¶ 7).

At some point during this sequence of events, Plaintiff filed with the SSA a signed "Claim Against the United States for the Proceeds of a Government Check." (Infiesta Decl. Ex. 4).[5] This form does not reference any specific check or checks but, in response to the questions on the form, Plaintiff indicated that she received, signed, and cashed "this check." ( Id. ). Plaintiff further indicated that the check was cashed at a "Check Cashing Place, " and that she "[c]annot [r]emember" if someone else deposited this check to an account she could use. ( Id. ). Julio Infiesta, in his sworn affidavit, stated that "SSA took no action regarding this claim, because plaintiff's responses indicated that she received, signed and cash[ed] the check or checks being complained about." ( Id. at ¶ 11).

On or about February 4, 2010, Plaintiff again visited a local SSA office; records indicate that an SSA employee showed Plaintiff copies of checks from the disputed period indicating that Plaintiff had cashed them. (Infiesta Decl. ¶ 8 & Ex. 1). Plaintiff was not satisfied with this proof and insisted on filing a Request for Reconsideration. ( Id. at Ex. 1). Plaintiff visited an SSA office for a fourth time on or about May 13, 2010, insisting once again that she had not received her benefits for the years 2001 through 2004. ( Id. ).

SSA internal documentation dated July 6, 2010, indicates that the agency sent worksheets to Plaintiff identifying monthly benefits that had been withheld to recoup a previous overpayment to Plaintiff. (Infiesta Decl. ¶ 9 & Ex. 1). This documentation notes that Plaintiff's request for reconsideration dated February 4, 2010, was slated for processing. ( Id. ). SSA has not, as of this writing, processed Plaintiff's request, apparently "because SSA had information showing that [P]laintiff was paid the benefits she claimed she had not received." (Def. 56.1 ¶ 8).

Specifically, the SSA obtained information from the Treasury Check Information System showing that Plaintiff had received monthly payments via direct deposit to her HSBC Bank account from January 1, 2001, through July 2, 2004. (Infiesta Decl. Ex. 5). The record indicates that these direct deposits were made to an account with an account number ending in 7660 and with the payee name "ENA DOBSON." ( Id. ). The record also contains copies of monthly benefit checks from August 9, 2004, through December 16, 2004, each made out to Ena Dobson and endorsed with a signature strongly resembling Plaintiff's name. ( Id. at Ex. 6).

2. Procedural Background

Plaintiff filed the Complaint in this action on August 17, 2010, alleging nonreceipt of her Social Security retirement checks "for four year[s] from 2001-2005." (Compl., Attachment 1). On March 28, 2011, after appropriate extensions of time to respond to the Complaint, Defendant filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim or, in the alternative, for summary judgment. (Dkt. #12). Plaintiff wrote the Court on May 31, 2011, asking for an extension of time to oppose Defendant's motion so that she could seek representation; she was granted until July 29, 2011. (Dkt. #16).[6] Plaintiff filed no opposition by this deadline. On September 12, 2011, Plaintiff filed an application for pro bono counsel. (Dkt. #18). This application was not served on Defendant but, noting that the Government typically does not take a position on requests for pro bono counsel in cases of this type, the Court ordered the application to be docketed despite its procedural errors. ( Id. ).

Twenty months later, Plaintiff having made no contact with the Court in the interval, the Court scheduled a conference for May 22, 2013, and Plaintiff did not appear. (Dkt. #22). In response, the Court issued an order for Plaintiff to appear at a hearing to show cause demonstrating why the Complaint should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (Dkt. #23). Plaintiff wrote the Court the following week, advising that she had not received notice of the May 22, 2013 conference. (Dkt. #24).

Shortly thereafter, the Court issued an order adjourning the show cause hearing from June 28, 2013, to July 25, 2013. (Dkt. #26). This order was returned as undeliverable. The Court, making accommodations for Plaintiff's pro se status, exerted substantial effort to locate a valid address for Plaintiff. An order adjourning the show cause hearing to August 22, 2013, was mailed on July 23, 2013;.

Both parties appeared at the hearing finally held on August 22, 2013. At that hearing the Court ordered Plaintiff to file a response to Defendant's motion by September 30, 2013. The Court also explained that Plaintiff could, if she chose, file a new application for pro bono counsel, but that it was impossible to guarantee that any pro bono lawyer would accept her case. Plaintiff filed a renewed application for pro bono counsel on September 5, 2013. By Order dated September 11, 2013, the Court granted Plaintiff's application but reminded her that whether a lawyer would choose to represent her was impossible to predict, and once again required her to file an opposition to Defendant's long-pending motion by September 30, 2013. (Dkt. #31).

By standing order of this District occasioned by the shutdown of the federal government, this case was then stayed pending the restoration of funding for the Department of Justice's operations. No response from Plaintiff was forthcoming in the interim, despite the expiration of Plaintiff's time to oppose the motion, many times extended. When that stay was lifted, the Court issued an order on October 17, 2013, granting a final extension of Plaintiff's time to oppose to November 1, 2013, in an effort to offer Plaintiff every possible courtesy. (Dkt. #33). On October 31, 2013, Plaintiff filed an affirmation in opposition to Defendant's motion. ...


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