United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S
E. Kobayashi, United States District Judge
August 5, 2016, Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security (“Defendant” or
“the Commissioner”), filed a Motion to Dismiss
Plaintiff's Complaint (“Motion”). [Dkt. no.
7.] Pro se Plaintiff Frank Webb, Jr.
(“Plaintiff”) did not respond to the Motion. On
October 12, 2016, this Court issued an entering order finding
this matter suitable for disposition without a hearing
pursuant to Rule LR7.2(d) of the Local Rules of Practice of
the United States District Court for the District of Hawai`i
(“Local Rules”). After careful consideration of
the Motion and the relevant legal authority, Defendant's
Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
filed his Complaint for Damages (“Complaint”) on
May 13, 2016. Plaintiff alleges that he received Social
Security Supplemental Security Income (“SSI”)
from April 1992 until May 1997, and he began receiving Social
Security Disability Insurance (“SSDI”) benefits
in June 1997. [Complaint at ¶ 9.] Plaintiff states that,
on November 8, 2010, he was “told” by Defendant
that: he had been overpaid SSI benefits in the amount of $2,
000.00; the Social Security Administration
(“SSA”) would be withholding $102.00 per month
from his benefits until the overpayment was repaid; and the
State of Hawai`i began paying his Medicare Insurance premiums
as of September 2010. [Id. at ¶ 2.] Plaintiff
alleges that the SSA never provided him with “a written
statement of the overpayment.” [Id.]
November 14, 2014, Plaintiff went to the SSA's Honolulu
office to find out why the SSA was still withholding monthly
payments because the $2, 000.00 had been paid off. The SSA
informed him that he still had thirteen payments remaining.
[Id. at ¶ 3.] On December 15, 2014, Plaintiff
requested access to records showing the overpayment, but the
SSA did not provide the records. [Id. at ¶ 4,
submits his Form SSA-1099 - Social Security Benefit Statement
(“Form 1099”) for 2012, 2014, and 2015. The 2012
Form 1099 reflects that no benefits were repaid to the SSA in
2012, and the 2014 Form 1099 reflects the same for 2014. The
2015 Form 1099 reflects repayment of $81.60. [Complaint, Exh.
C.] Plaintiff states that his 2011 Form 1099 also reflects no
repayment, although he did not attach a copy of the 2011 Form
1099. He also states that “the other 1099 Form was
misplaced.” [Complaint at ¶ 5.] In March 2015,
Plaintiff called the SSA to ask about why the Form 1099s did
not reflect the $102.00 monthly deductions, but was told that
the deduction “was a tax credit for low-income people,
and that the Plaintiff did not qualify for it.”
[Id. at ¶ 6.] Plaintiff also requested an
appointment to discuss the matter at the office, but the SSA
would not give him an appointment. [Id.]
March 2015, Plaintiff sought help from Senator Mazie
Hirono's office. Senator Hirono sent Plaintiff a letter
dated August 14, 2015 with documents her office obtained
about Plaintiff's overpayment. [Id. at ¶ 7,
Exh. B at 4. Among the documents was a letter dated
May 3, 2010 to Plaintiff from the SSA informing him that he
had received more SSI payments than he should have and that
he owed the SSA $6, 813.60 (“5/3/10 Letter”). The
5/3/10 Letter stated that the SSA would withhold $102.00 per
month from his Social Security benefits until it collected
the full amount. [Complaint, Exh. B at 2.] It also stated
that: “If you pay Medicare premiums . . ., we deducted
them from your benefits to get the amount you will
receive.” [Id.] Plaintiff emphasizes that the
5/3/10 Letter is addressed to his former residence in
Seattle, and he was living in Honolulu at the time of the
letter. Plaintiff states that this was the first time he saw
the 5/3/10 Letter. [Complaint at ¶ 7.]
received a letter dated October 6, 2015 from the SSA, stating
that from May 2010 to September 2015 the SSA collected $6,
630.00 from his benefits toward the $6, 813.60 overpayment
(“10/6/15 Letter”). The 10/6/15 Letter stated
that the SSA would deduct $102.00 from his October 2015
benefits, and $81.60 from his November 2015. [Id.,
Exh. B at 3.] Plaintiff argues that, although the SSA
collected the full $6, 813.60 overpayment, the SSA failed to
reflect the repayments on the Form 1099s. [Complaint at
¶ 8.] In addition, Plaintiff alleges that SSA records
state that he did not stop receiving SSI benefits until
January 1999, even though he stopped receiving SSI benefits
in May 1997. He states that this could have been the cause of
the alleged overpayment of SSI benefits. [Id. at
brings his claims pursuant to 28 U.S.C. § 2674.
[Id. at ¶ 10.] He alleges: willful and
intentional deceit because the SSA failed to repay him
$331.60 for Medicare premiums it deducted after the State of
Hawai`i began paying his premiums (“Count I”);
willful and intentional deceit because the SSA told him that
the amount of the overpayment was $2, 000, when it was
actually $6, 813.60 (“Count II”); willful and
intentional deceit because the SSA failed to apply the
amounts deducted from his monthly benefits to the $6, 813.60
overpayment (“Count III”); reckless breach of
Defendant's legal duty under 5 U.S.C. § 552a(d)
because the SSA failed to provide requested records
(“Count IV”); [id. at pgs.
7-9; reckless and intentional breach of
Defendant's legal duty under “Title II (2) of the
Social Security Act and Code of Federal Regulation
404-592” based on the failure to properly apply the
deducted amounts (“Count V”); [id. at
pg. 9;] and reckless infliction of severe mental anguish
because Defendant's actions caused him “severe
mental agony and pain” (“Count VI”)
[id. at pg. 10].
requests that this Court: enter judgment in his favor; send a
copy of the Complaint to Senator Hirono's office,
requesting that Defendant be investigated for possible fraud,
or enter an order requiring Defendant to send the Complaint
to her office; an award of $25, 000, 000.00 in general
damages; statutory damages; and any other appropriate relief.
instant Motion, Defendant argues that this Court must dismiss
Plaintiff's claims brought pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671,
et seq., and Title II of the Social Security Act for
lack of subject matter jurisdiction and for failure to state
a claim. Defendant urges this Court to dismiss
Plaintiff's claims with prejudice.
Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) authorizes a court
to dismiss claims over which it lacks proper subject matter
jurisdiction. A court may determine jurisdiction on a motion
to dismiss under Rule 12(b)(1) so long as “the
jurisdictional issue is [not] inextricable from the merits of
a case.” Kingman Reef Atoll Invs., L.L.C. v. United
States, 541 F.3d 1189, 1195 (9th Cir. 2008). A plaintiff
has the burden of proving that subject-matter jurisdiction in
fact exists. Thornhill Publ'g Co., Inc. v. Gen. Tel.
& Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
A challenge to the Court's subject-matter jurisdiction
may be “facial or factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
In a facial attack, the party challenging jurisdiction argues
that the allegations contained in a complaint are
insufficient “on their face” to invoke federal
jurisdiction. Id. A facial challenge, therefore,
mirrors a traditional motion to dismiss analysis. The Court
must take all allegations contained in the pleading “to
be true and draw all reasonable inferences in
[plaintiff's] favor.” Wolfe v. Strankman,
392 F.3d 358, 362 (9th Cir. 2004).
Piedvache v. Ige, Civil No. 16-00138 DKW-RLP, 2016
WL 6516826, at *2 (D. Hawai`i Nov. 2, 2016) (alterations in
Piedvache). The traditional motion to dismiss
analysis for a Fed.R.Civ.P. 12(b)(6) motion asks whether the
plaintiff states a plausible claim for relief. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))).
Sovereign Immunity and FTCA Claims
first argues that this Court lacks jurisdiction because there
was no waiver of sovereign immunity. This district court has
Federal courts have no subject matter jurisdiction to hear a
claim against the United States, absent a clear waiver of
sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475
(1994) (“Absent a waiver, sovereign immunity shields
the Federal Government and its agencies from suit.”).
“A waiver of sovereign immunity cannot be implied but
must be unequivocally expressed” in the text of a
statute. United States v. Mitchell, 45 U.S. 535,
538 (1980) (citation omitted).
Zeeman v. U.S. Dist. Court Dist. of Hawaii Prob.
Office, CV 14-00328 RSWL, 2016 WL 1559565, at *3 (D.
Hawai`i Apr. 18, 2016). Further, “[a]ny lawsuit against
an agency of the United States or against an officer of the
United States in his or her official capacity is considered
an action against the United States.” Vicente v.
Takayama, CV 16-00497 DKW-RLP, 2016 WL 5853724, at *4
(D. Hawai`i Oct. 4, 2016) (citing Sierra Club v.
Whitman, 268 F.3d 898, 901 (9th Cir. 2001)).
I, II, and III allege willful and intentional deceit, and
appear to be fraudulent misrepresentation claims. Plaintiff
states that he brings his claims pursuant to the FTCA.
[Complaint at ¶ 10.]
The FTCA waives sovereign immunity of the United States, and
permits tort suits for damages against the government
“in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. §
2674. It grants district courts jurisdiction over civil
actions for money damages for negligent or wrongful acts or
omissions of government employees acting in the scope of
employment “under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred.” [28 U.S.C.] § 1346(b)(1).
Benjamin v. United States, Civ. No. 16-00248
JMS-KSC, 2016 WL 5660400, at *3 (D. Hawai`i Sept. 28, 2016).
However, “the United States and its agencies are immune
from claims of fraud under the Federal Tort Claims
Act.” Taylor v. U.S. Patent & TrademarkOffice, 551 F. App'x 341 (9th Cir. 2013) (citing
Owyhee GrazingAss'n, Inc. v. Field,
637 F.2d 694, 697 (9th Cir. 1981) (stating that “claims
against the United States for fraud or misrepresentation by ...