United States District Court, S.D. Florida
ORDER DENYING MOTION TO DISMISS [DE 17] AND ORDERING
RESPONDENT TO RESPOND TO THE PETITION [DE]
William Matthewman United States Magistrate Judge
November 16, 2018, Petitioner Sheila Loren
("Petitioner") petitioned the Court for a writ of
mandamus compelling Respondent Nancy Berryhill, the Acting
Commissioner of Social Security, to produce copies of records
related to an alleged overpayment made to the Social Security
Administration ("the Agency") and adjudicate her
requests for reconsideration and waiver. [DE 1]. On March 15,
2019, the parties consented to the undersigned Magistrate
Judge conducting all proceedings in this matter. [DE 15]. On
March 25, 2019, the Agency moved under Fed.R.Civ.P. 12(b)(1)
for the Court to dismiss the Petition, arguing that the Court
lacks jurisdiction and that the Petition fails to show
entitlement to a writ. [DE 17]. Petitioner responded to the
motion on May 10, 2019. [DE 22]. The Agency replied to
Petitioner's response on May 30, 2019. [DE 23]. For the
reasons that follow, the Court denies the motion. [DE 17].
16, 2018, Petitioner received a notice of an $8, 242.00
alleged overpayment from the Social Security Administration.
[DE 1] at ¶ 5. She then requested on May 29, 2018, that
the Agency reconsider its decision and separately requested
that it waive the alleged overpayment. [DE 1] at ¶ 6.
Her requests for reconsideration and waiver also stated an
intent to inspect and copy the Agency's records relating
to the alleged overpayment. [DE 22] at 7. The Agency
confirmed its receipt of Petitioner's requests for
reconsideration and waiver on July 3 and July 11, 2018,
respectively. [DE 1] at ¶ 7. The Agency has never
acknowledged receipt of Petitioner's intent to inspect
and copy its records. On July 11, 2018, Petitioner also went
into her local Social Security office in an unsuccessful
attempt to get more information from the Agency about the
status of her requests. [DE 1] at ¶ 8. Since then, she
states she has had no contact with the Agency and the Agency
has not yet issued decisions on either of her requests nor
allowed her to inspect or copy the records relating to the
alleged overpayment. [DE 1] at ¶ 9. The Agency states it
is still processing Petitioner's requests and she
"remains in current pay status and will continue to
receive Social Security benefits until" it decides them.
[DE 17] at 2.
months after Petitioner made her requests, she filed a
petition with this Court seeking an order compelling the
Agency to produce copies of records related to the alleged
overpayment and adjudicate both her request for
reconsideration and her request for waiver. [DE 1]. The
Agency has moved to dismiss this action, alleging the Court
lacks subject-matter jurisdiction and that Petitioner has
failed to show entitlement to a writ. [DE 17].
the Court must assess whether it has jurisdiction over this
case. On the one hand, under 28 U.S.C. § 1361, federal
district courts "shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to
perform a duty owed to the Plaintiff." On the other, the
Social Security Act ("the Act"), 42 U.S.C. §
405(g), limits jurisdiction regarding claims arising under
the Act. Neither the Supreme Court of the United States nor
the United States Court of Appeals for the Eleventh Circuit
has decided whether the Act bars jurisdiction under the
mandamus statute. See Lifestar Ambulance Service, Inc. v.
U.S., 365 F.3d 1293, 1295 n.3 (11th Cir. 2004) (assuming
without deciding that mandamus jurisdiction is not barred by
42 U.S.C. § 405(h)). However, in line with other
decisions of this Circuit, the Court finds that jurisdiction
is proper in this matter. See, e.g., Dokic-Vukojevic v.
Colvin, No. 9:15-cv-80044, 2016 WL 7566688 (S.D. Fla.
Oct. 26, 2015); Steinberg v. Barnhart, No.
8:04-cv-2555, 2005 WL 2277525 (M.D. Fla. Sept. 19, 2005);
see also Lifestar, 365 F.3d at 1295 n.3.
Standard of Review
courts are courts of limited jurisdiction. Russell Corp.
v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir.
2001). Under Rule 12(b)(1), a party may either facially or
factually contest subject-matter jurisdiction. Principal
Life Ins. Co. v. Alvarez, No. 9:ll-cv-21956, 2011 WL
4102327, at *2 (S.D. Fla. Sept. 14, 2011). "A facial
attack asserts that a plaintiff has failed to allege a basis
for subject matter jurisdiction, " and "the
plaintiffs allegations are taken as true for the purposes of
the motion[.]" Id. (citing Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980)). A factual attack, though, "challenges the
existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings such as testimony and affidavits, are
considered." Id. Here, Respondent's attack
is factual in nature.
Entitlement to a Writ of Mandamus
Social Security Act requires the Agency to make "proper
adjustment or recovery" when it "finds that more or
less than the correct amount of payment has been made to any
person." 42 U.S.C. § 404(a)(1). Agency regulations
provide that persons "adversely affected by an initial
determination by the [Agency] may request
reconsideration." 20 C.F.R. §§ 404.907,
404.908 r (2019). They also state that
overpaid persons have "the right to inspect and
copy" the Agency records "related to the
overpayment." 20 C.F.R. § 404.521 (2019).
Individuals intending to inspect or copy those records must
notify the Agency "stating his or her intention to
inspect or copy" and then they "will be informed as
to where and when the inspection and copying can be
done." 20 C.F.R. § 404.524(a) (2019). Finally,
another regulation, 20 C.F.R. § 404.502(a), requires
the, Agency to notify claimants of "how and when [an
overpayment] has occurred."
requested reconsideration and waiver of the Agency's
overpayment determination on July 3 and July 11, 2019,
respectively. [DE 1] at ¶ 7. She also stated her intent
to inspect and copy the Agency's records on May 29, 2018.
[DE 22] at 7. The Agency has not yet acted on any of her
requests. She argues the Agency has unreasonably delayed
adjudication of her requests for reconsideration and waiver
and delayed her right to inspect the Agency's records
regarding the alleged overpayment.
entitlement to a writ of mandamus, Petitioner must show (1) a
"clear right to the relief requested;" (2) the
Agency had "a clear duty to act;" and (3) "no
other adequate remedy is available." Cash v.
Barnhart,327 F.3d 1252, 1258 (11th Cir. 2003). Mandamus
is "an extraordinary remedy which should be utilized
only in the clearest and most compelling of cases."
Id. at 1257. "In resolving whether [28 U.S.C.
§ 1361] jurisdiction is present, allegations of the
complaint, unless patently frivolous, are taken as true to