Summary
noting "the Commissioner is the only proper defendant in a case seeking judicial review pursuant to Section 405(g)"
Summary of this case from Smith v. Comm'r of Soc. Sec.Opinion
03 Civ. 5114 (RWS).
November 22, 2004
FRANK LANGELLA Plaintiff Pro Se Yonkers, NY.
HONORABLE DAVID KELLEY United States Attorney for the Southern District of New York Attorneys for Defendants. New York, NY, By: LORRAINE NOVINSKI Assistant US Attorney ANDREEA L. LECHLEITNER Assistant Regional Counsel, Region II Office of the General Counsel Social Security Administration Of Counsel.
OPINION
The Commissioner of Social Security (the "Commissioner") has moved to dismiss the sole remaining claim of the complaint of plaintiff Frank Langella ("Langella") pursuant to Rule 12(c), Fed.R.Civ.P. In opposition, Langella, proceeding pro se, has brought four motions, styled (1) a motion to "overturn and reverse Judge's erroneous dismissal of po[r]tion of plaintiff's complaint under 28 U.S.C. § 1346(b) and all other applicable statutes"; (2) a motion "to overturn and dismiss Government's motion to dismiss portion of complaint under 42 U.S.C. § 205(G)"; (3) a motion "to enforce existing order of default judgment" pursuant to Rules 55 and 55(a), Fed.R.Civ.P.; and (4) a motion "to redundancy to remove fraudulent insertion of Social Security Commissioner[']s Memorandum for Judgment." Through separate filings in July 2004, Langella has also brought (5) a motion for a change of venue; (6) a motion to amend his complaint pursuant to Rule 15(d), Fed.R.Civ.P.; and (7) a motion to "reinstate" his case. For the reasons set forth above, Langella's motions are denied, the Commissioner's motion is granted, athe underlying decision of the Commissioner is affirmed, and this action is closed.
Prior Proceedings
The prior proceedings in this and related actions have been chronicled at some length in this Court's opinion and order of March 3, 2004, see Langella v. Bush, 306 F. Supp. 2d 459, 461-63 (S.D.N.Y. 2004) (the "March Opinion"), familiarity with which is assumed. Only those events and proceedings relevant to the instant motions will be set forth here.
On April 19, 1994, Langella was convicted of extortion in violation of 18 U.S.C. § 1951(a). He applied for retirement benefits in June 1994 and began receiving them in the summer of 1994, after his conviction but before his 18-month sentence began in the summer of 1995.
On July 28, 1996, the Social Security Administration ("SSA") notified Langella that it was stopping his retirement benefits because he was imprisoned for a felony conviction, and that the SSA had overpaid Langella $9,577 by erroneously continuing to pay him retirement benefits for the first 13 months of his incarceration in contravention of 42 U.S.C. § 402(x)(1)(A). This statute provides that "no monthly benefits shall be paid under this section . . . of this title to any individual for any month . . . throughout all of which such individual (i) is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense." 42 U.S.C. § 402(x)(1)(A).
On October 17, 1996, Langella requested that the SSA waive recovery of the overpayment under 20 C.F.R. § 404.506(a), which provides that there shall be no recovery of overpayment to an individual who is without fault. The SSA denied the request. Langella then requested a hearing before an administrative law judge ("ALJ"), which hearing was held on September 24, 1998. The ALJ denied Langella's request for the waiver.
On March 17, 2000, Langella filed a suit against several defendants, including the Government of the United States of America; William J. Clinton, U.S. President; Janet Reno, Attorney General of U.S.A.; General Counsel, Social Security Administration; Kenneth F. Apfel, Commissioner Social Security Administration; Pamela D. Crawford, Appeals Council, Social Security Administration; John Doe, Peekskill Social Security Agency; Jane Doe, Peekskill Social Security Agency; and Herbert Rosenstein, ALJ. See Langella v. United States, No. 00 Civ. 2067 (RWS) ("Langella I"). Langella claimed that the Commissioner had erred in denying the waiver, that 42 U.S.C. § 402(x) is unconstitutional in that it violates due process and equal protection, and that his rights were violated under ten of the Amendments to the Constitution. He sought damages of $3 million under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA").
After twice granting Langella leave to file an amended complaint, this Court sua sponte dismissed the action. The Court of Appeals for the Second Circuit affirmed and also ruled that Langella's challenge to the constitutionality of 42 U.S.C. § 402(x) was meritless, but remanded the issue of waiver of recovery of overpayment to this Court with instructions to remand to the SSA for a new hearing. See Langella v. United States, 6 Fed. Appx. 116, 2001 WL 431509 (2d Cir. Apr. 27, 2001) (unpublished). On August 1, 2001, this Court remanded to the SSA for further proceedings on Langella's claim for waiver of overpay-ment under 20 C.F.R. § 404.506(a).
On December 19, 2001, before the new hearing was held, Langella filed a second suit ("Langella II") against the United States and the United States Attorney for the Southern District of New York, acting in her official capacity, for claims arising out ofLangella I. Langella alleged that the United States Attorney and the Court violated his rights under ten Amendments to the U.S. Constitution and committed torts against him, and he sought $1,600,000,000 in damages. The complaint in Langella II was dismissed, a decision later affirmed by the Court of Appeals.See Langella v. United States, No. 01 Civ. 11583 (AKH), 2002 WL 1218524 (S.D.N.Y. June 12, 2002), aff'd, 67 Fed. Appx. 659, 2003 WL 21523215 (2d Cir. 2003) (unpublished).
While Langella II was pending, a hearing was held before an ALJ on June 21, 2002, and Langella's claim for waiver was again denied on July 26, 2002. By notice dated April 30, 2003, the Appeals Council advised Langella of his right to commence a civil action pursuant to 42 U.S.C. § 405(g) within 60 days from the date of receipt.
Langella filed the instant action in this Court on July 10, 2003 ("Langella III"), naming as defendants President George W. Bush, United States of America; Attorney General John Ashcroft; Government of the United States, Social Security Administration; Government of the United States, Department of Justice; and Katherine C. Edgell and Peter N. Dowd, the ALJ who presided over Langella's hearing and the administrative appeals judge who signed the notice of April 30, 2003, respectively (collectively, the "Defendants"). Langella III was assigned to this Court on July 28, 2003 and accepted as related to Langella I.
On October 21, 2003, the Defendants moved to dismiss Langella's complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., which motion was granted in part and denied in part as set forth in the March Opinion, leaving as the sole issue Langella's appeal from the April 30, 2003 decision denying his request for waiver of recovery of overpayment of retirement benefits. By that same opinion and order Langella's intervening motions to deny and dismiss the Defendants' memoranda of law, which motions had been stayed pending determination of the motion to dismiss, were denied. By an order of March 30, 2004, Langella's third application for an order dismissing the Defendants' memorandum of law, as well as his application for vacatur of the stays imposed and his application for an order of default judgment (styled a fourth request for same) were denied, as was his application for an order to show cause directed at the undersigned.
The Commissioner filed the instant motion on May 21, 2004, moving under Rule 12(c), Fed.R.Civ.P., to dismiss the complaint insofar as it seeks a review of the Commissioner's decision finding that Langella was not without fault in causing an overpayment of benefits and denying Langella's request for a waiver of recovery of the overpayment. Langella, in opposition, filed motions (1) to overturn this Court's earlier decision, (2) to dismiss the government's motion, (3) to enforce a default judgment, (4) to remove a portion of the Commissioner's memorandum, (5) to change venue, (6) to amend the complaint, and (7) to reinstate his action. These motions were marked fully submitted on July 21, July 28th and August 11, 2004.
Discussion I. The Motions of Langella Are Denied
In addressing Langella's various motions and his opposition to the Commissioner's motion, the Court is mindful that he is proceeding pro se and that his papers should be held to a less stringent standard than those drafted by attorneys, that they should be read liberally, and that they should be interpreted to raise the strongest argument that they suggest. See Olle v. Columbia Univ., 332 F. Supp. 2d 599, 607 (S.D.N.Y. 2004) (collecting cases).
Langella's motion directed at the "fraudulent insertion" of the Commissioner's memorandum of law is denied, as his contention that the Commissioner has no legal right to make a motion in this case because she is not a "defendant or participant" in this matter (Motions at 3-4) is meritless. While it is true that Langella did not name the Commissioner as a defendant in this action, he did name the "GOV'T OF THE UNITED STATES OF AMERICA, SOC. SECT. ADM.," presumably referring to the SSA. (See Compl. at 1.) By statute, the Commissioner is responsible for the exercise of all of the powers of SSA, and actions of other employees of SSA to whom the Commissioner has delegated the authority to act "have the same force and effect as though performed or rendered by the Commissioner." 42 U.S.C. § 902(a).
Further, while Langella did not name the Commissioner as a defendant in this action, he did rely on 42 U.S.C. § 405(g) as the basis of his request for review of the Commissioner's decision. (See Compl. at ¶ 2.) By expressly referring to "the Commissioner's answer" and to a "motion of the Commissioner," subsection (g) clearly contemplates the Commissioner's appearance as a party in any such action. See 42 U.S.C. § 405(g); see also Ro Ane v. Mathews, 476 F. Supp. 1089, 1093 (N.D. Cal. 1977) (noting that Section 405(g) is a "consent to suit against the Secretary" and it "does not indicate that Congress intended to authorize a suit against any other person under this subsection."), aff'd, 604 F.2d 37 (9th Cir. 1979). In addition, the final sentence of subsection (g) provides that an action brought under this subsection shall survive notwithstanding any change or vacancy in the position of the Commissioner. This provision would plainly be superfluous if the Commissioner were not intended to be a party to an action brought pursuant to 405(g).
Effective March 31, 1995, the functions of the Secretary of Health and Human Services in Social Security cases were transferred to the Commissioner. See 42 U.S.C. §§ 901, 902.
The final sentence of subsection (g) provides in full:
Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of the Commissioner of Social Security or any vacancy in such office.42 U.S.C. § 405(g).
Moreover, the Appeals Council's notice to Langella advising him of his right to commence a civil action seeking review of the Commissioner's decision expressly advised him that "the complaint should name the Commissioner of Social Security as the defendant." (See Transcript of Administrative Record ("Tr."), at 163.) Because the Commissioner is the only proper defendant in a case seeking judicial review pursuant to Section 405(g), it is reasonable to construe Langella's request for review of the Commissioner's decision as attempting to assert a claim against the Commissioner and such construction is employed here. Langella's argument to the contrary is, accordingly, rejected.
Langella has moved motion to "overturn and reverse" the partial dismissal of his complaint pursuant to the FTCA. See March Opinion, 306 F. Supp. 2d at 463-64 (concluding that the doctrine of sovereign immunity bars Langella's FTCA claims and that, in any event, he has not met the FTCA's requirement of administrative exhaustion). Since Langella's motion was filed more then ten days after entry of the March Opinion, it is construed as a motion made pursuant to Rule 60(b)(6), Fed.R.Civ.P., for partial relief from the order set forth in the March Opinion. As such, the motion is denied, in view of Langella's failure to demonstrate any basis to reconsider those aspects of the March Opinion that dismissed Langella's claims pursuant to the FTCA, much less to demonstrate the "exceptional circumstances" required to warrant relief from the operation of the March Opinion. Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996).
Langella's motion to enforce a default judgment is denied. As a motion to dismiss may be made in lieu of an answer pursuant to Rule 12, Fed.R.Civ.P., by virtue of the Defendants' timely filing of their motion to dismiss, see March Opinion, 306 F. Supp. 2d at 467, and of the Commissioner's timely filing of an answer to the complaint on March 17, 2004, within ten days of entry of the March Opinion on the public docket, see Fed.R.Civ.P. 12(a)(4)(A), no basis exists for entry of default judgment.
Langella has filed three additional documents, purportedly in connection with this case. Two of these documents — one entitled "SETTLEMENT" and the other entitled "RESPONSE FINAL PRETRIAL ORDER BRIEF" — are said to refer to a criminal case, 93 Cr. 363 (CLB), that is not currently before the Court. The third document, entitled "RESPONSE, FINAL PRETRIAL ORDER (R.W.S.)", addresses the claims that the Court has already dismissed as well as a motion for a change of venue. Because none of these documents addresses the Commissioner's motion, and because the documents have no bearing on the issues presently under consideration, they are irrelevant to this disposition and no further response to them will be made in this opinion.
Langella seeks to have his case transferred to the Honorable Charles L. Brieant of this court, before whom, he asserts, he sought to have the case heard upon filing of the complaint. Judge Brieant presided over the criminal action brought against Langella, United States v. Calvi, No. 93 Cr. 363 (CLB), and was named as a defendant by Langella in a separate proceeding. See Langella v. Brieant, No. 98 Civ. 1781 (TPG) (S.D.N.Y. Mar. 12, 1998) (dismissing Langella's mandamus action pursuant to 28 U.S.C. § 1915(d)). A litigant may not select by whom his or her case is heard, see Handschu v. Special Servs. Div., 288 F. Supp. 2d 411, 417 n. 8 (S.D.N.Y. 2003) (explaining that, unless a new action is sufficiently related to an already existent case, it shall not be removed from "the usual random procedures for assigning cases to the dockets of the Judges of the Court"), and Langella has offered no basis from which to conclude that venue in this district is improper or that venue in another judicial district would be more appropriate. See generally 28 U.S.C. § 1391(b). Langella's motion for change of venue is, accordingly, denied.
The remaining motions brought by Langella are without any factual or legal basis and are consequently dismissed. Langella's discursive and subjective ramblings do not substitute for proof or authority.
II. The Commissioner's Motion Is Granted A. The Administrative Record
On April 19, 1994, Langella was convicted of extortion and thereafter was sentenced to eighteen months in prison. See Langella v. United States, 99 F.3d 400, 1995 WL 732755, at *1 (2d Cir. Dec. 8, 1995) (unpublished).
On June 15, 1994, Langella visited his Social Security office, indicating that he was considering filing claims for disability and for retirement. (See Tr. at 361.) After the claims representative prepared both applications for Langella's signature, he advised her that he was currently working as a consultant. (See id.) Based on this information, the claims representative told Langella not to sign anything, and she gave him a copy of the application for retirement benefits. (See id.) Langella was told to call to advise her of his intentions once he had finalized his work plans. (See id.) Langella subsequently reported that he did not want to file a claim based on disability because he intended to go into business with a friend. (See Tr. at 372.)
In an undated statement, apparently made prior to August 31, 1994, Langella reported that he had not worked since 1986. (See Tr. at 82.)
An individual who is engaging in substantial gainful activity cannot be found eligible for benefits based on disability. See 20 C.F.R. § 416.920(a).
The record does not indicate whether Langella made this statement in person or by telephone, nor does it reflect the date of this statement. (See Tr. at 372.)
On June 24, 1994, Langella signed and submitted an application for retirement benefits. (See Tr. at 50.) The application included the statement: "My reporting responsibilities have been explained to me." (Tr. at 51.) In a cover letter accompanying the application, Langella reported that he had been hospitalized on June 22, 1994, and that until he knew more about his medical condition he would only be filing for retirement benefits. (See Tr. at 49.)
Langella's application was granted and he was awarded benefits beginning in August 1994. (See Tr. at 321.)
On April 3, 1995, Langella's wife submitted an application for retirement benefits for herself based on her husband's work history. (See Tr. at 54-56.) That application included the following statement:
I agree to promptly notify the Social Security Administration and to promptly return any benefit check
I receive if the check is for a month in or after the month in which:
. . .
I am confined to jail, prison, penal institution or correction facility for conviction of a felony.
(Tr. at 56.)
Sometime between August 1994, when Langella began receiving his retirement benefits, and June 1995, Langella's wife arranged to have his benefits paid by direct deposit. (See Tr. at 188.) In June 1995, Langella was incarcerated. (See Tr. at 34.)
For the months from July 1995 through July 1996, Langella was paid a total of $9,577.00 in retirement benefits. (See Tr. at 228-29.)
The Commissioner subsequently learned that Langella had been incarcerated since July 1995, and Langella was notified that his benefits would be stopped because of his incarceration. (See Tr. at 177.) The Commissioner also notified Langella that he had been overpaid $9,577.00 in benefits paid to him for the period July 1995 through July 1996. (See id.)
Neither the notice of the termination of Langella's benefits nor the notice that he had been overpaid is contained in the record. Langella has never denied receipt of either of these notices.
On August 2, 1996, Langella's wife requested waiver of recovery of her husband's overpayment. Also on August 2, 1996, Langella's wife filed a request for waiver of recovery of the overpayment, once again arguing that Langella did not consider the money an overpayment. (See Tr. at 85-92.) When asked why he had not reported his incarceration, Langella replied that he "was never told I had to by my atty or the court." (Tr. at 86.)
Although the request was signed by Langella's wife, the questions referred to the overpayment to Langella and the responses were all phrased in the first person. (See Tr. at 85-92.) Accordingly, the responses can reasonably be understood as Langella's and not his wife's.
On October 3, 1996, Langella was released from prison. (See Tr. at 80.) On October 15, 1996, he requested that his benefits be reinstated. (See Tr. at 57.) Because the waiver request previously submitted by Langella's wife could not be located, Langella completed a second request on October 17, 1996. (See Tr. at 93-100.) Langella reiterated his view that the money was his and therefore was not an overpayment. (See Tr. at 94.) Langella also stated — for the first time — that his attorney had told him that his benefits could not be forfeited. (See id.) By notice dated December 6, 1996, Langella was informed that his benefits would be reinstated effective November 1996. (See Tr. at 62.)
Langella resumed receiving benefits in December 1996, and he has continued receiving them since that date. (See Tr. at 229-35.) Beginning in May 1999, $265 was deducted from Langella's monthly benefits to recover the overpayment. (See Tr. at 232-35.) The full amount of the overpayment was finally recovered in May 2002. (See Tr. at 235.)
Langella's wife began receiving her retirement benefits in June 1995, and she continued to receive them without any deduction on account of Langella's overpayment. (See Tr. at 236-43.) Although these benefits were based on Langella's earnings, her right to receive those benefits was not affected by Langella's incarceration. See 42 U.S.C. § 402(x)(2).
On January 17, 1997, Langella appeared for a personal conference regarding his request for a waiver. (See Tr. at 64.) At that time, Langella alleged that when he first filed his application for benefits he had informed the claims representative that he was a convicted felon who was out on bail. (See Tr. at 64-65.) This allegation had not been made previously.
At his first hearing, Langella testified that he initially wanted to apply for supplemental security income ("SSI") because he was unable to work. (See Tr. at 28.) According to Langella's testimony, he reported at that time that he had been indicted and would be going to trial, and he was told that if he was convicted he would not be able to receive SSI benefits. (See id.) Langella further testified that he was told that his "regular Social Security" (i.e., retirement benefits) would not be "penalized," and he therefore applied for retirement rather than for SSI. (See id.) Langella also testified that he had never been told that he was required to notify Social Security of his incarceration, and he added that neither he nor his wife had read their applications before signing them. (See Tr. at 29, 31.)
Also at his first hearing, Langella testified that his attorney had told him that no one could take his retirement benefits away. (See Tr. at 44.) He added that he had told the "young lady" (presumably the SSA representative) that there was a possibility that he would be going to prison and that this was why she cancelled his SSI application. (Id.) Langella added that his discussions with his attorney and with the "young lady" took place in March 1994, which was before his trial had begun. (Tr. at 45.)
At his second hearing, Langella testified that he had made only one visit to his Social Security office in connection with his applications and that it was possible that the date of that visit was March 26, 1994. (See Tr. at 189.) He added that at the time of his visit he had been indicted but that the trial did not start until two weeks later. (See Tr. at 190.) Langella testified that at that visit he had discussed filing claims for disability and for retirement, but that after he volunteered that he was under indictment and did not know whether he would win or lose, the "young lady" told him that a conviction would not affect his retirement benefits. (See Tr. at 190-91.) Langella added that he did not file either application at that time because he was considering going into business with his friend. (See Tr. at 191.) Langella denied that the "young lady" had given him any applications on that date, but later testified — inconsistently and incorrectly — that he signed the application form on the date of that visit. (Tr. at 192-95.) Later in the hearing, Langella contradicted himself yet again by testifying that when he was in the hospital his wife had applied for his retirement benefits by telephone. (See Tr. at 197.)
The record indicates that Langella's wife called the Social Security office on June 27, 1994. (See Tr. at 362.) This call, however, did not constitute Langella's application for benefits. Rather, Langella signed a written application for retirement benefits on June 24, 1994. (See Tr. at 50-52.) This application was received in the Social Security office on June 24, 1994, the date of the phone conversation between Langella's wife and the Social Security office. (See Tr. at 50.)
After the request for a waiver was denied, Langella, acting through counsel, requested a hearing before an ALJ. (See Tr. at 66-75.) The hearing was held on March 4, 1998. (See Tr. at 20.) Langella, accompanied by counsel, appeared and testified at the hearing. (See Tr. at 20-48.) On September 28, 1998, the ALJ issued a decision finding that Langella was not without fault in causing the overpayment and denying his request for waiver. (See Tr. at 13-18.) The Appeals Council denied Langella's request for review. (See Tr. at 3-5.)
In a letter to the Appeals Council dated August 26, 1999, Langella asserted that when he received his Social Security card in 1953 he was assured by "Social Security Personnel" that the money withheld from his pay was his money, it would always be his money, and "that `no one could ever take it away from me.'" (Tr. at 132.) In this letter, Langella stated that he filed his application for benefits in June 1994. Langella reiterated that his attorney, who had over twenty years of experience, had assured him that no one could take his Social Security benefits away, and he added that "throughout his life" every one had expressed this same belief. (Tr. at 146-47.)
Thereafter, Langella commenced Langella I, as set forth above, seeking, inter alia, judicial review of that decision. After allowing Langella to submit two amended complaints, this Court dismissed the second amended complaint sua sponte for failure to comply with the Court's instructions. (See Tr. at 378-80.) Langella appealed that decision and the Court of Appeals for the Second Circuit vacated the order of dismissal to the extent that it dismissed Langella's claim regarding waiver of the overpayment and affirmed the order in all other respects. See Langella v. United States, 6 Fed. Appx. 116, 118, 2001 WL 431509, at *2 (2d Cir. Apr. 27, 2001) (unpublished). Adopting the course of action proposed by the Commissioner, the Court of Appeals instructed the district court to remand Langella's claim for a waiver of the overpayment to the Commissioner for a new hearing. See id.
On remand, a second hearing was held before a new ALJ on June 21, 2002. (See Tr. at 182.) Langella, represented by counsel, appeared and testified at the hearing. (See Tr. at 182-202.) On July 26, 2002, the ALJ issued a decision finding that Langella was not without fault in causing or accepting the overpayment and denying his request for a waiver. (See Tr. at 174-81.) Specifically, the ALJ found that Langella failed to furnish the SSA information that he was required to provide. (See Tr. 178. In addition, the ALJ found that Langella had accepted benefit payments that he knew, or could be expected to have known, were incorrect. (See id.) This became the final decision of the Commissioner on April 30, 2003, when the Appeals Council denied Langella's request for review. (See Tr. at 162-65.)
Included among several documents that Langella submitted to the Appeals Council in April 2003 was a copy of a July 10, 1994 notice advising him that he was entitled to retirement benefits beginning in August 1994. (See Tr. at 321.) The notice indicated that a publication identified as "Pub 05-10077" was enclosed. (Id.) The text of the notice referred to an enclosed pamphlet that explains what information must be reported and how to report it, and it provided an address and telephone number that Langella could use if he had any questions. (See id.) A hand-written notation near the paragraph of the notice referring to the enclosed pamphlet states "NOT IN ENVELOPE?" (Id.)
Subsequently, Langella was informed that because of his incarceration all the benefits he had received for this period constituted an overpayment. (See Tr. at 177.) On August 2, 1996, Langella's wife requested reconsideration of the overpayment determination, stating that Langella was entitled to those benefits based on the payments he had made into the Social Security system. (See Tr. at 58.)
B. The Rule 12(c) Standard
In deciding a motion for judgment on the pleadings, the court is generally limited to considering the factual allegations set forth in the complaint and corresponding answer. See Fed.R.Civ.P. 12(c). A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law.See Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990); Sellers v. M.C. Floor Crafters, 842 F.2d 639, 642 (2d Cir. 1988); Rosado v. Barnhart, 290 F. Supp. 2d 431, 435 (S.D.N.Y. 2003).
The Social Security Act (the "Act"), 42 U.S.C. § 401 et seq., provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g); see Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Thus, the Commissioner's determination must be upheld if the court finds there is substantial evidence supporting it, even if there is also substantial evidence for the plaintiff's position. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming the Commissioner's decision where there was substantial evidence for both sides). The determination of the Commissioner may be set aside only when that determination is "based upon legal error or not supported by substantial evidence." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)); accord Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)); see generally 42 U.S.C. § 405(g). "Substantial evidence" has been defined as "more than a scintilla" which "a reasonable man might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citations omitted).
In short, the court reviewing the Commissioner's decision may not decide the case de novo. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("Where an administrative decision rests on adequate findings sustained by evidence having rational probative force, the court should not substitute its judgment for that of the Commissioner."); Clark v. Comm'r of Soc. Security, 143 F.3d 115, 118 (2d Cir. 1998) (explaining that the court's function is limited to determining whether the Commissioner's decision is supported by substantial evidence and based on a correct legal standard, "keeping in mind that it is up to the agency, and not this court, to weigh the conflicting evidence in the record").
C. The Commissioner's Decision Was Supported by Substantial Evidence and Not Based Upon Legal Error
The Act expressly prohibits the payment of old age or survivors' insurance benefits "to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to his conviction of an offense which constituted a felony under applicable law." 42 U.S.C. § 402(x). The Second Circuit has already rejected Langella's claims that this provision violates the Due Process and Equal Protection Clauses of the Fifth Amendment. See Langella v. United States, 6 Fed. Appx. 116, 117, 2001 WL 431509, at *2 (2d Cir. Apr. 27, 2001) (unpublished) (citing Zipkin v. Heckler, 790 F.2d 16, 19 (2d Cir. 1986) (per curiam)). In addition, noting that every circuit that had addressed claims (also raised by Langella) that Section 402(x) is a prohibited bill of attainder or ex post facto law has rejected them, the Second Circuit declined to do otherwise. See Langella, 6 Fed. Appx. at 117, 2001 WL 431509, at *2.
Langella has argued that the statutory provision that prohibits the payment of certain benefits to prisoners, 42 U.S.C. § 402(x), applies only to individuals incarcerated either because they are insane or because they are rapists. (See Motions at 10-11.) The statute currently provides that no retirement benefits shall be paid pursuant to Title II of the Act to an individual for any month during which the individual "is confined in a jail, prison, or other penal institutional or correctional facility pursuant to his conviction of a criminal offense." 42 U.S.C. § 402(x)(1)(A)(i). The provisions referred to by Langella, regarding individuals found to be insane or to be sexual offenders, on the other hand, are found in 42 U.S.C. §§ 402(x)(1)(A)(ii) and 402(x)(1)(A)(iii). The statute prohibits payment of benefits to an individual who satisfies any one of the three subparagraphs of 402(x)(1)(A). Because Langella indisputably falls within the first subparagraph, it is irrelevant whether he also falls within either of the other two.
The language of Section 402(x) has been amended several times since that section was first enacted in 1981. At all times relevant to Langella's case, the statute provided in relevant part as follows:
(1)(A) Notwithstanding any other provision of this title, no monthly benefits shall be paid under this section or under section 423 of this title to any individual for any month during which such individual —
(i) is confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of an offense punishable by imprisonment for more than 1 year (regardless of the actual sentence imposed).42 U.S.C. § 402(x)(1)(A) (1995). This provision applies to all benefits payable for months commencing after January 22, 1994.See Social Security Domestic Reform Employment Reform Act of 1994, Pub.L. No. 103-387 §§ 4(a) 4(b) (1994). In her moving memorandum, the Commissioner inadvertently relied upon the version of Section 402(x) in effect prior to the 1994 amendments. (See Def. Mem. at 13.) The provision relied upon by Langella regarding criminal offenses involving sexual activity was enacted in 1999. See 42 U.S.C. § 402, Historical and Statutory Notes.
The record indicates that Langella received retirement benefits for the first thirteen months of his incarceration — from July 1995 through July 1996. (See Tr. at 228-29.) Because receipt of these benefits was expressly prohibited by statute, the amount of those payments constitutes an overpayment.
Generally, when the Commissioner determines that more than the correct amount of benefits has been paid to an individual, she is required to recover the excess amount. See 42 U.S.C. § 404(a) (providing that "[w]henever the Commissioner of Social Security finds that more or less than the correct amount of payment has been made . . . proper adjustment or recovery shall be made"). As an exception to this general rule, however, recovery of an overpayment shall be waived if a recipient demonstrates that two conditions are satisfied: (1) the overpaid individual is without fault; and (2) recovery would either defeat the purpose of the benefits or be contrary to equity and good conscience. See 42 U.S.C. § 404(b); see also 20 C.F.R. § 404.506 (setting for when waiver may be applied and the process by which a request for waiver is addressed). If the individual does not satisfy the first condition set forth (i.e., demonstrate that he or she is without fault), the second condition is not considered. See Chlieb v. Heckler, 777 F.2d 842, 846 (2d Cir. 1985) ("We need not consider whether recovery of the overpayments would defeat the purpose of Title II or would be against equity and good conscience, since those factors come into play only if the recipient is without fault."). The burden of persuasion as to the appropriateness of waiver rests with the recipient. See Valente v. Sec'y of Health Human Servs., 733 F.2d 1037, 1042 (2d Cir. 1984); Posnack v. Sec'y of Health Human Servs., 631 F. Supp. 1012, 1015 (E.D.N.Y. 1986).
The statute provides in relevant part:
In any case in which more than the correct payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.42 U.S.C. § 404(b).
An individual can be found not without fault in any of three ways. "Fault may be found if the recipient: (1) makes a statement which he knows or should have known to be incorrect; (2) fails to furnish information which he knows or should have known to be material; or (3) accepts a payment which he knew or could have been expected to know was incorrect." Center v. Schweiker, 704 F.2d 678, 680 (2d Cir. 1983) (per curiam); see also 20 C.F.R. § 404.507. Moreover, to establish fault, "no showing of bad faith is required; rather, an honest mistake may be sufficient to constitute fault." Center, 704 F.2d at 680 (citing Morgan v. Finch, 423 F.2d 551, 553 (6th Cir. 1970)). In determining whether an individual is at fault, the Commissioner considers the "physical, mental, educational, or linguistic limitations" the individual may have. 42 U.S.C. § 4049(b); see also 20 C.F.R. § 404.507 (noting that "all pertinent circumstances" are to be considered). A conclusion of the Commissioner "that a claimant was not without fault is a factual determination that must be upheld if it is supported by substantial evidence in the record as a whole." Howard v. Sec'y of the Dep't of Health Human Servs., 741 F.2d 4, 8 (2d Cir. 1984).
Here, the Commissioner found that Langella failed to furnish information that he knew or should have known was relevant and that he accepted payments that he knew or should have known were incorrect. (See Tr. at 178.) Accordingly, she found that Langella was not without fault and that he, therefore, could not be entitled to a waiver regardless of his ability to repay the overpayment. (See id.) This decision is supported by substantial evidence in the record.
In opposition, Langella has claimed without any supporting documentation both that he was told by numerous people that his retirement benefits could never be forfeited for any reason and that he was never told that he had to report such information. Langella's claim that a SSA employee told him that his retirement benefits would not be affected by his possible incarceration is rejected. The Commissioner is entitled to a presumption that the information provided by her employees is correct. See United States v. Chemical Found., 272 U.S. 1, 14-15 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."); Red Top Mercury Mines, Inc. v. United States, 887 F.2d 198, 202-03 (9th Cir. 1989) (same); Ussi v. Folsom, 254 F.2d 842, 844 (2d Cir. 1958) (same). The statutory provision concerning payment of retirement benefits to an incarcerated individual has been in effect since 1993 and the presumption has not been rebutted.
Langella has suggested that the reason he decided to apply only for retirement benefits, and not for disability benefits, had been based on the representation allegedly made to him regarding the effect of his incarceration on his entitlement to benefits. The record supports a contrary conclusion: that he was not given an application for disability benefits because of his statement that he was currently working. (See Tr. at 361 (noting Langella's statement that he was currently working and that his work "through [sic] a monkey wrench into the whole application"), 372 ("[I] wish to restrict my application to retirement only. I will not be filing the disability application since I am working and intend on trying to work.").) Langella's argument is further undercut by his statement in the cover letter accompanying his application for retirement benefits: "Until I know further what my medical condition is I will only be filing for my retirement benefits." (Tr. at 49.) The contemporaneous records regarding Langella's application contain no reference to the possibility of his being incarcerated or that his incarceration would not affect his retirement benefits. Indeed, if Langella's decision to apply only for retirement benefits had been based on the representation allegedly made to him regarding the effect of his incarceration on his entitlement to benefits, his medical condition would have been irrelevant.
The record also demonstrates that Langella either knew or should have known that he was required to report the fact that he was incarcerated. The application that Langella signed on June 24, 2004, expressly stated that, "My reporting responsibilities have been explained to me." (Tr. at 51.) Under the presumption of regularity, it must be presumed that this statement was accurate and that he had, in fact, been advised of his reporting responsibilities, including the requirement, well-established at that time, that he report his incarceration.
Langella's wife in her application for retirement benefits submitted in April 1995, expressly agreed not only to promptly notify the SSA if she were incarcerated, but also to promptly return any benefit check that she received for a month in which she was incarcerated. (See Tr. at 56.) Because this application was signed two months prior to the date of Langella's incarceration, and because at his wife's request his benefits began to be paid by direct deposit rather than by check before he was incarcerated, it is reasonable to infer that by the date of his incarceration, Langella himself was aware both that an individual was not entitled to retirement benefits for the period of any incarceration and that any individual receiving benefits was required to report the fact that he or she was incarcerated.
In any event, even assuming, arguendo, the truthfulness of Langella's testimony that he never read his application before signing it (see Tr. at 31), his failure to read the application would not absolve him of his reporting responsibilities. One of the documents that Langella submitted to the Appeals Council in support of his request for review of the ALJ's decision demonstrates that he was informed of the existence of reporting responsibilities. (See Tr. at 321-23.) The document in question is the July 10, 1994 notice informing Langella that he was entitled to monthly retirement benefits beginning in August 1994. (See Tr. at 321.) The notice indicates that a publication identified as "Pub 05-10077" was enclosed. (Id.) The notice also includes the following statements:
Your benefits are based on the information you gave us. If this information changes, it could affect your benefits. For this reason, it is important that you report changes to us right away. We have enclosed a pamphlet, "When You Get Social Security or Survivor Benefits . . . What You Need To Know. It tells you what must be reported and how to report."
(Tr. at 322.) The notice also provided a telephone number and an address to which Langella could address any questions. (See id.) Once again, the Commissioner is entitled to a presumption that the pamphlet referred to was in fact enclosed with the notice.
A copy of the notice submitted by Langella bears the hand-written notation: "NOT IN ENVELOPE?" (Tr. at 321.) Presumably this notation is intended as evidence that he never actually received the enclosure referred to in the notice. However, the notice clearly informed Langella both of the existence of reporting responsibilities and of the importance of his complying with them. Even if Langella did not actually know of his reporting responsibilities, it is beyond dispute that he should have known of them.
Finally, Langella has relied on a report of contact contained in the administrative record and dated October 19, 1996, which is captioned "Waiver Denial!" and signed by "John Simpson." (Tr. at 78.) The report of contact reads:
I spoke with W/E [wage earner] this date[. H]e resubmitted his waiver. While I believe W/E is w/o fault is [sic] causing the O/P [and] has no possible way to repay. I cannot waive this O/P in any good conscience because W/E's spouse used the money to live while he was in prison.
(Id.) While, as Langella correctly notes, the report of contact on its face states the signatory's belief that Langella is without fault as to the overpayment, this single statement neither trumps nor undermines the Commissioner's ultimate decision to the contrary, nor does it otherwise suggest that the Commissioner's decision was not based on substantial evidence.
The record evidence thus shows that Langella was made aware of his reporting requirements and either knew or should have known both of his ineligibility for benefits while incarcerated and of his reporting responsibilities. Because Langella failed to report his incarceration, he was not without fault either in causing the overpayment or in accepting the incorrect payments.
A court can overturn a decision of the Commissioner only if that decision "is based on legal error or not supported by substantial evidence." Pratts, 94 F.3d at 37 (quoting Berry, 675 F.2d at 467). Langella has pointed to no procedural error in the Commissioner's adjudication of his case. Nor has he pointed to any evidence in the record that contradicts the Commissioner's finding that he was not without fault with respect to the overpayment of benefits that he received. Because Langella has not established any basis for overturning the Commissioner's decision, the decision is affirmed and the complaint is dismissed. III. Langella Shall Not Be Enjoined From Filing Further Law Suits At This Time
Langella has moved to amend his complaint, invoking Rule 15(d), Fed.R.Civ.P. This motion is denied, as amendment is futile for the reasons set forth in the March Opinion and herein.See Ellis v. Chao, 336 F.3d 114, 126 (2d Cir. 2003) ("[I]t is well established that leave to amend a complaint need not be granted when amendment would be futile.") (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
The authority of a district court to enjoin a plaintiff who engages in a pattern of duplicative and vexatious litigation from continuing to do so is well established. See Safir v. United States Lines, Inc., 792 F.2d 19, 23 (2d Cir. 1986) (citing,inter alia, 28 U.S.C. § 1651(a)); see also In re Martin-Trigona, 9 F.3d 226, 228 (2d Cir. 1993) ("The Supreme Court and numerous courts of appeals have recognized that courts may resort to restrictive measures that except from normally available procedures litigants who have abused their litigation opportunities."). A court's power to enjoin such individuals is used to protect judicial resources, the finality of judgment and the integrity of the courts from those plaintiffs who abuse the court system. See, e.g., Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1499 (5th Cir. 1993). As the Court of Appeals for this circuit has explained, a district court "not only may but should protect its ability to carry out its constitutional functions against the threat of onerous, multiplicitous, and baseless litigation." Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (per curiam).
The imposition of measures limiting Langella's access to the courts of this district is not appropriate at this time. However, in view of Langella's history of litigation in this district and his conduct in the prosecution of the instant action, including his repeated refusals to accept judicial rulings or the rejection of his claims, he is hereby advised that the filing of a new, duplicative and frivolous action arising out of the underlying subject matter in the instant action may lead to the imposition of an injunction barring him from filing further actions in this district without permission.
Conclusion
For the reasons set forth above, Langella's motions are denied, the Commissioner's motion is granted, the Commissioner's decision is affirmed, and the complaint is dismissed. This action is closed.
It is so ordered.