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Webb v. United States Social Security Administration

United States District Court, D. Hawaii

November 23, 2016

FRANK WEBB JR., Plaintiff,
v.
THE UNITED STATES SOCIAL SECURITY ADMINISTRATION, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

          Leslie E. Kobayashi, United States District Judge

         On 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.

         BACKGROUND

         Plaintiff 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.]

         On 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, Exh. A.]

         Plaintiff 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.]

         In 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.[1] 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.]

         Plaintiff 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 ¶ 9.]

         Plaintiff 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;[2] 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].

         Plaintiff 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.

         In the 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.

         DISCUSSION

         I. 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.[3] 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))).

         A. Sovereign Immunity and FTCA Claims

         Defendant first argues that this Court lacks jurisdiction because there was no waiver of sovereign immunity. This district court has stated:

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, 4[4]5 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)).

         Counts 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 ...


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