Opinion
Case No. 02-2289-JWL
April 18, 2003
MEMORANDUM ORDER
Plaintiff, appearing pro se, filed this suit against defendant alleging that defendant violated his due process rights by failing to advise him of the date and time of a hearing concerning his social security benefits and conducting the hearing without his knowledge. This matter is presently before the court on defendant's second motion to dismiss (doc. #16). For the reasons set forth below, the motion is granted and plaintiff's complaint is dismissed in its entirety.
Factual and Procedural Background
In 1991, plaintiff applied for disability insurance benefits. His claims were denied initially, but he was given a partially favorable determination on reconsideration and plaintiff began to receive benefits. Plaintiff, however, requested a hearing as to the unfavorable aspect of the reconsideration determination, specifically seeking an earlier onset date. Plaintiff's request was granted and a hearing was held before Administrative Law Judge Mason D. Harrell, Jr. of the San Bernardino, California hearing office. In a decision issued in July 1993, Judge Harrell not only denied plaintiff's request for an earlier onset date but also reversed the reconsideration determination of disability and concluded that plaintiff was never disabled. Plaintiff was not represented by counsel at the hearing and, according to plaintiff, he had no knowledge that the hearing before Judge Harrell could result in a finding that he was not disabled at all. Plaintiff believed that the only issue before Judge Harrell was the appropriate onset date.
Plaintiff requested review of Judge Harrell's decision by the Appeals Council — a request that the Appeals Council denied in September 1993. Despite Judge Harrell's decision, plaintiff continued to receive benefits, presumably because the Agency either misunderstood Judge Harrell's decision or failed to effectuate the decision. At some point in 1996, the Agency, while reviewing plaintiff's case in connection with a medical continuing disability review and plaintiff's pending application for widower's benefits, discovered that plaintiff was continuing to receive benefits. In 1997, the Agency sent plaintiff a notice advising him that he was not due any benefits and that he had accrued an overpayment for all the benefits he had received since June 1992. Plaintiff requested reconsideration of this determination and, on December 11, 2000, the Agency issued a reconsideration determination affirming the initial overpayment determination.
Plaintiff then requested a waiver of the overpayment — a request which defendant denied in August 2001. In September 2001, plaintiff timely requested a hearing on the issue. The request for a hearing was granted and the hearing was held before Judge James S. Stubbs in the Kansas City hearing office. According to plaintiff, he was not advised of the time or date of the hearing and the hearing took place without his knowledge. Nonetheless, Judge Stubbs ruled in plaintiff's favor, concluding that plaintiff was without fault in creating and accepting the overpayment and, thus, the overpayment was waived.
Thereafter, plaintiff filed suit in federal district court seeking restoration of his benefits and retroactive payment of past benefits. Defendant, construing plaintiff's complaint as seeking judicial review of Judge Harrell's decision denying plaintiff benefits, moved to dismiss the complaint on the grounds that plaintiff failed to file his complaint within 60 days of Judge Harrell's 1993 decision. See 42 U.S.C. § 405(g). The court rejected defendant's construction of plaintiff's complaint and, thus, denied the motion to dismiss. In that regard, the court construed plaintiff's complaint as asserting constitutional claims or, more specifically, due process violations stemming from defendant's alleged failure to notify plaintiff of the scope of Judge Harrell's authority and defendant's alleged failure to notify plaintiff about the time and date of the hearing before Judge Stubbs and conducting that hearing without his knowledge. Defendant has now filed its second motion to dismiss and urges the court to dismiss plaintiff's constitutional claims.
Discussion
Defendant again moves to dismiss plaintiff's complaint on the grounds that this court lacks subject matter jurisdiction over plaintiff's claims that his due process rights were violated in connection with the hearings before Judge Harrell and Judge Stubbs. At first blush, it might appear that the court would necessarily have federal question jurisdiction over plaintiff's constitutional claims. Section 405(h) of the Social Security Act, however, provides that "[n]o action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter." Cordoba v. Massanari, 256 F.3d 1044, 1047 (10th Cir. 2001) (quoting 42 U.S.C. § 405(h)). The United States Supreme Court has interpreted the "arising under" language of section 405(h) to include claims that also arise under the Constitution where the claimant seeks to recover Social Security benefits because "it is the Social Security Act which provides both the standing and the substantive basis for the presentation of [the claimant's] constitutional contentions." See Weinberger v. Salfi, 422 U.S. 749, 760-61 (1975). In other words, because plaintiff here seeks a judgment directing the defendant to pay Social Security benefits, plaintiff's complaint "arises under" the Act and section 405(h) "precludes resort to federal question jurisdiction for the adjudication of [his] constitutional contentions." Id. at 761; accord Schweiker v. Chilicky, 487 U.S. 412, 424 (1988) (Once a claimant has exhausted his or her administrative remedies under the Social Security Act, "a claimant is entitled to seek judicial review, including review of constitutional claims.").
In his pro se complaint, plaintiff asserts that jurisdiction is founded on 28 U.S.C. § 1343. The preclusion of jurisdiction under 28 U.S.C. § 1331 necessarily precludes jurisdiction under 28 U.S.C. § 1343, which is simply a more specific subset of the general federal question jurisdiction set out in section 1331.
Weinberger, then, instructs that section 405(h) is the exclusive basis for subject matter jurisdiction over plaintiff's complaint. Section 405(h) precludes review of decisions of the Commissioner save as provided in the Act, which provision is made in section 405(g). See Weinberger, 422 U.S. at 757. Section 405(g), in turn, provides in relevant part that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow." 42 U.S.C. § 405(g); see also Weinberger, 422 U.S. at 763-64 (setting forth section 405(g)'s requirements for judicial review). On its face, then, section 405(g) specifies a statute of limitations period — it requires commencement of a civil action within 60 days after the mailing of notice of the Commissioner's decision (or within such further time as the Commissioner may allow).
It is uncontroverted that plaintiff here did not commence a civil action in federal district court within 60 days of the Commissioner's decision and that the Commissioner did not extend the 60-day period. The Commissioner issued a "final decision" with respect to Judge Harrell's order in 1993. Judge Stubbs' decision was issued on March 28, 2002. Plaintiff did not file his complaint in this court until June 24, 2002. Of course, the 60-day requirement set forth in section 405(g) is a statute of limitations and is subject to waiver and equitable tolling. See Bowen v. City of New York, 476 U.S. 467, 478-80 (1986) (60-day period in section 405(g) constitutes a period of limitations and is subject to equitable tolling); see Weinberger, 422 U.S. at 763-64 (section 405(g) sets forth a 60-day statute of limitations that is waivable by the parties). As it is clear that the defendant has not waived the statute of limitations (indeed, the defendant's motion to dismiss is based on the statute of limitations), the court need only consider whether equitable tolling is appropriate in this case. The court, in its discretion, declines to apply the doctrine here. See United States v. Clymore, 245 F.3d 1195, 1198 (10th Cir. 2001) ("[T]he application of equitable doctrines rests in the sound discretion of the district court.").
The record suggests that plaintiff did not ever seek review of Judge Stubbs' decision with the Appeals Council. If that is the case, then plaintiff failed to exhaust his administrative remedies with respect to this decision and the court would lack subject matter jurisdiction for that reason. See 42 U.S.C. § 405(g) (judicial review appropriate only after claimant has exhausted administrative remedies by obtaining a final decision); accord Bowen v. City of New York, 476 U.S. 467, 482 (1986) ("To obtain a final decision from the [Commissioner] a claimant is required to exhaust h[er] administrative remedies by proceeding through all three stages of the administrative appeals process."). While the exhaustion requirement may be excused if certain requirements are satisfied, see Koerpel v. Heckler, 797 F.2d 858, 862 (10th Cir. 1986) (citing Mathews v. Eldridge, 424 U.S. 319, 328 (1976)), those requirements are not satisfied here. At a minimum, plaintiff has not shown that exhaustion would be futile or that he would suffer irreparable harm in a way that could not be remedied by subsequent administrative appeals. See id.; accord Heckler v. Ringer, 466 U.S. 602, 617-18 (1984). In other words, because plaintiff has not shown an injury that would not be recompensable through retroactive payments, waiver of the exhaustion requirement is not appropriate. See Bartlett v. Schweiker, 719 F.2d 1059, 1061 (10th Cir. 1983) (citations omitted). Moreover, although plaintiff's complaint is couched in terms of a procedural challenge, he expressly seeks a judgment directing the Commission to pay him Social Security benefits. In essence, then, plaintiff's complaint is one for recoupment of benefits and his constitutional claims are thus inextricably intertwined with his claim for benefits. For this reason, too, waiver is inappropriate. Heckler, 466 U.S. at 614-16 (while exhaustion requirement may be excused if plaintiff presents a constitutional claim that is "wholly collateral to his claim for benefits," waiver is not appropriate where claims are inextricably intertwined with claim for benefits).
Equitable tolling is used only in rare cases where the equities in favor of tolling are compelling. See City of New York, 476 U.S. at 480-81. As the Supreme Court has noted:
Federal courts have typically extended equitable relief only sparingly. We have [however] allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). In the Tenth Circuit, equitable tolling is typically permitted when the defendant's conduct rises to the level of active deception, when the plaintiff has been lulled into inaction by the defendant, and when extraordinary circumstances have prevented the plaintiff from filing his or her claim within the statutory period. See Clymore, 245 F.3d at 1199. Applying these traditional equitable tolling principles, the court is convinced that tolling of the 60-day period is not appropriate in this instance. Plaintiff does not argue, and the record does not suggest, that the circumstances here place plaintiff's case within "the narrow group deserving of this special consideration." See Montoya v. Apfel, 211 F.3d 1278, 2000 WL 556582, at *2 (10th Cir. May 8, 2000) (affirming district court's decision dismissing plaintiff's complaint for failure to file complaint within the 60-day period prescribed by section 405(g); equitable tolling inappropriate). There is nothing in the record before the court suggesting that defendant deceived or misled plaintiff into filing his complaint beyond the 60-day period. There is no evidence of any circumstances which might have prevented plaintiff from timely filing his complaint. Cf. City of New York, 476 U.S. at 480-81 (equitable tolling was appropriate because the government's "secretive conduct prevent[ed] plaintiffs from knowing of a violation of rights"). In the absence of such evidence, the court declines to apply the equitable tolling doctrine. As such, plaintiff's complaint, filed well beyond the 60-day period, was untimely filed and the court lacks subject matter jurisdiction over his complaint. See 42 U.S.C. § 405(g). Defendant's motion to dismiss, then, is granted.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's second motion to dismiss plaintiff's complaint (doc. #16) is granted and plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.