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Loren v. Berryhill

United States District Court, S.D. Florida

September 27, 2019

Sheila Loren, Petitioner,
v.
Nancy Berryhill, Acting Commissioner of Social Security Administration, Respondent.

          ORDER DENYING MOTION TO DISMISS [DE 17] AND ORDERING RESPONDENT TO RESPOND TO THE PETITION [DE]

          William Matthewman United States Magistrate Judge

         On 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].

         I. Background

         On May 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.

         Four 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].

         II. Analysis

         A. Jurisdiction

         First, 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.

         B. Standard of Review

         Federal 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.

         C. Entitlement to a Writ of Mandamus

         The 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."

         Petitioner 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.

         To show 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. ยง 1361] jurisdiction is present, allegations of the complaint, unless patently frivolous, are taken as true to avoid ...


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