United States District Court for the District of Columbia
June 11, 2005.
WESLEY G. THORN, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, Defendant.
The opinion of the court was delivered by: RICHARD LEON, District Judge
This matter is before the Court on defendant's renewed motion
to dismiss or, in the alternative, for summary judgment. Having
considered defendant's motion, plaintiff's opposition, and the
entire record of this case, the Court will dismiss this action.
This civil action began with a claim under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act,
5 U.S.C. § 552a, against the Social Security Administration ("SSA")
seeking access to and disclosure of information regarding, among
other matters, SSA's refusal to pay plaintiff disability benefits
upon his incarceration in November 2003. A review of the record
made clear that plaintiff submitted other requests under the FOIA
and the Privacy Act to various SSA offices in Pennsylvania, North
Carolina, Missouri, Maryland, and Virginia. See Compl. at 3-4;
Second Amd. Compl. at 4-6. A. Requests under the Freedom of Information and Privacy Acts
I. Mid-Atlantic Program Service Center in Philadelphia,
Plaintiff alleged that he submitted a request to SSA's
Mid-Atlantic Program Service Center in Philadelphia, Pennsylvania
on April 1, 2004. Compl. at 3; Second Amd. Compl. at 5.
Specifically, he sought:
a copy of two social security checks . . . issued for
the months of November 2003 and of December 2003. I
would like to have copies front and back, clearly
showing who encashed [sic] said items and the routing
Compl., Ex. A. When he received no response promptly, he sent
what he calls a "pre-Appeal letter" to the Mid-Atlantic Program
Service Center on April 22, 2004. Id., Ex. B. After he received
no response, he submitted a letter of appeal to that same office.
Id., Ex. C. Plaintiff apparently received no response to these
2. Central Office in Baltimore, Maryland
In April 2004, plaintiff addressed a request to the FOIA
Officer at SSA's Baltimore, Maryland office. Def.'s Mot., Ex. 2.
He sought: (1) a copy of an application for benefits filed with
the Joplin, Missouri field office by his wife on behalf of his
children; (2) records pertaining to a payment of fees to his
attorney; and (3) copies of the social security disability checks
for the months of November and December 2003. Id. The FOIA
Officer sent plaintiff a copy of his social security claims
folder on August 20, 2004. See id., Ex. 6.*fn1
Plaintiff received a supplemental response from SSA's FOIA
Officer on September 3, 2004. Def.'s Mot., Ex. 7. The letter accompanying the released
records explained that all disability checks are issued by the
Department of the Treasury, and that SSA does not maintain copies
of these checks. Id.
3. Field Office in Durham, North Carolina
In April 2004, plaintiff addressed a request to the FOIA
Officer at SSA's Durham, North Carolina field office. Def.'s
Mot., Ex. 3. He sought information on agency policies and
procedures and other regards regarding SSA's "decision to deny
payment of [plaintiff's] back pay" allegedly owed for the period
beginning November 1, 2003. Id. On April 29, 2004, plaintiff
sent a letter to that same office purporting to appeal the
agency's apparent refusal to comply with his FOIA request. Id.,
Ex. 4. Defendant's counsel represented that the Durham office did
not receive a copy of plaintiff's correspondence.*fn2 Def.'s
Mot. at 3.
4. Office of Hearings and Appeals in Falls Church, Virginia
On May 3, 2004, plaintiff addressed a FOIA request to the FOIA
Officer at SSA's Office of Hearings and Appeals, Attorney Fees
Branch, in Falls Church, Virginia. Def.'s Mot., Ex. 5. Generally,
he sought agency directives, policy manuals, and other materials
regarding plaintiff's request for payment of attorney fees. Id.
Defendant's counsel represented that the agency searched for
responsive records and that no such records exist.*fn3
Def.'s Mot. at 4. B. Claim under the Federal Tort Claims Act
Plaintiff's Second Amended Complaint also raises a claim under
the Federal Tort Claims Act ("FTCA"). He alleges that he
submitted a "Form 95 Tort Claim" to SSA's Office of General
Counsel on March 30, 2004. Second Amd. Compl. at 6. His claim was
denied on July 27, 2004. Id. at 7.
A. Plaintiff failed to exhaust administrative remedies under the
Freedom of Information and Privacy Acts.
The FOIA applies to all SSA records. See 5 C.F.R. § 402.15(a).
The Privacy Act, 5 U.S.C. 552a, applies to records that are about
individuals, but only if the records are in a system of records.
Id. If an individual requests records about himself, SSA
handles the request under the Privacy Act. 20 C.F.R. § 402.15(b).
If there is any record that SSA need not release to the
individual under the Privacy Act, SSA also considers the request
under the FOIA, and will release the records to the individual if
the FOIA so require. Id. "No agency shall rely on any exemption
in [the Privacy Act] to withhold from an individual any record
which is otherwise accessible to such individual under the
provision of [the FOIA]." 5 U.S.C. § 552a(t)(2).
1. Privacy Act requests
A person may ask for amendment of or access to any record about
himself that is in an SSA system of records.
20 C.F.R. § 401.40(a). For purposes of the Privacy Act, a "system of records"
is a "a group of any records under the control of any agency from
which information is retrieved by the name of the individual or
by some identifying number, symbol, or other identifying
particular assigned to the individual." 5 U.S.C. § 552a(a)(5).
The request must specify the systems of records to be searched and the records to which he
wishes to have access or of which he requests copies.
20 C.F.R. § 401.40(b). The request must be sent to the manager of the
relevant SSA system of records. 20 C.F.R. § 401.40(c).
If, under the Privacy Act, SSA denies a person access to his
own record, SSA advises him in writing of the reason for that
denial, the name and title or position of the person responsible
for the decision, and his right to appeal that decision.
20 C.F.R. § 401.70(c). He may appeal the denial decision to the
Commissioner of Social Security, 6401 Security Boulevard,
Baltimore, MD 21235, within 30 days after he receives the notice
denying all or part of his request. Id. The notice of the
decision on the appeal will explain his right to have the matter
reviewed in a Federal district court if he disagrees with all or
part of the Commissioner's decision. Id.
A plaintiff initially must seek amendment or access from the
agency and even seek review within the agency before coming to
court. See Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir.
1990); 5 U.S.C. §§ 552a(g)(1)(A) & (B), (d)(3). In this case,
plaintiff does not establish that he exhausted his administrative
remedies by submitting his Privacy Act requests to the proper SSA
official, and by appealing an adverse decision to the
Commissioner. For this reason, the Court will dismiss plaintiff's
Privacy Act claims because he failed to exhaust his
2. FOIA requests
A proper FOIA request must meet two requirements: it must
reasonably describe the records sought, and it must be submitted
in accordance with the agency's published regulations. See
5 U.S.C. § 552(a)(3)(A). An agency deems a request "received" only
when the it is complete and submitted to the correct office. See
Blackwell v. Equal Employment Opportunity Comm'n, No. 2:98-38,
1999 WL 1940005 *2 (E.D.N.C. Feb. 12, 1999) (agency not obligated
to process one-sentence letter which neither referenced FOIA nor was addressed to proper
official as a FOIA request).
A plaintiff "may generally seek judicial review of his FOIA
request only after he has exhausted all administrative remedies."
Pollack v. Dep't of Justice, 49 F.3d 115, 118 (4th Cir. 1995);
Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61
(D.C. Cir. 1990). A FOIA suit is subject to dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure if a plaintiff
fails to exhaust his administrative remedies. Hidalgo v. Federal
Bureau of Investigation, 344 F.3d 1256, 1260 (D.C. Cir. 2003);
see Dettmann v. United States Dep't of Justice, 802 F.2d 1472,
1477 (D.C. Cir. 1986). A FOIA request directed to the wrong
office is subject to dismissal for the requester's failure to
exhaust administrative remedies. See Church of Scientology of
California v. Internal Revenue Service, 792 F.2d 146, 150 (D.C.
Cir. 1986); Sands v. United States, No. 94-0537, 1995 WL 552308
*4 (S.D. Fla. June 16, 1995).
A FOIA request to the SSA must be sent to: Deputy Executive
Director for the Office of Public Disclosure, Office of the
General Counsel, Social Security Administration, 6401 Security
Boulevard, Baltimore, Maryland 21235. 20 C.F.R. § 402.135. In no
case did plaintiff submit a request to this official at this
address. To the extent that the requests are processed under the
FOIA, plaintiff failed to exhaust his administrative remedies by
failing to submit them in accordance with SSA's published
Accordingly, the Court will dismiss plaintiff's FOIA and
Privacy Act claims for plaintiff's failure to state a claim upon
which relief can be granted.*fn4 B. Plaintiff's FTCA claim will be dismissed for lack of subject
It appears that plaintiff, with the assistance of counsel,
applied for and was awarded disability benefits retroactive to
February 8, 2002. See Second Amd. Compl. at 7; Def.'s Mot., Ex. 8
(Disability Determination and Transmittal) & Ex. 9 (Notice of
Decision Fully Favorable dated September 8, 2003). Plaintiff
signed an agreement pursuant to which counsel would be paid a fee
equal to 25% of past-due benefits owed to plaintiff and to any
auxiliary beneficiaries, or $5,300, whichever is less. Def.'s
Mot., Ex. 10 (Attorney's Fee Contract for Social Security
Disability and/or Supplemental Security Income signed March 13,
2002). Although counsel received $3,911 in fees for services
related to plaintiff's claim, plaintiff has not received the
lump-sum payment to which he claims an entitlement.*fn5
Second Amd. Compl. at 7; Def.'s Mot., Ex. 11 (Plaintiff's undated
letter to SSA's Office of Hearings and Appeals in Falls Church,
Virginia) & Ex. 12 (February 13, 2004 letter from J.P. Peraza,
Field Office Manager of SSA's Durham, NC office). SSA did not
process plaintiff's disability award because plaintiff cannot
receive payment while he is incarcerated. See Def.'s Mot., Ex.
Plaintiff filed an FTCA claim, alleging that defendant failed
to pay past-due Social Security disability benefits in violation
of the Racketeer Influenced and Corrupt Organizations Act. See
Pl.'s Mot. for Summ. J., Ex. (SF-95 signed March 23, 2004); see
also Second Amd. Compl. at 6-7. SSA denied the administrative
claim on July 27, 2004. Second Amd. Compl. at 7. The essence of plaintiff's FTCA claim is a challenge to SSA's refusal to make a
lump-sum payment to plaintiff while he is incarcerated.
In relevant part, the Social Security Act provides:
No findings of fact or decision of the Commissioner
of Social Security shall be reviewed by any person,
tribunal, or governmental agency except as herein
provided. No 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.
42 U.S.C. § 405(h) (emphasis added). This provision bars a claim
under the Federal Tort Claims Act for recovery of Social Security
benefits. Weinberger v. Salfi, 422 U.S. 749
, 756-57 (1975)
(third sentence of Sec. 405(h) "bars district court
federal-question jurisdiction over suits . . . which seek to
recover Social Security benefits"); McKenna v. Commissioner of
Social Security, No. 97-6466, 1998 WL 466557 *2 (6th Cir. July
31, 1998) ("[T]he Social Security Act precludes any claim under
the Federal Tort Claims Act for the wrongful withholding of
benefits."); Jarrett v. United States, 874 F.2d 201
Cir. 1989) (third sentence of 405(h) is exception to FTCA's
waiver of sovereign immunity, and bars claim regarding alleged
wrongful termination of social security disability benefits);
Soberal-Perez v. Schweiker, 549 F.Supp. 1164 (E.D.N.Y. 1982)
(holding that, with respect to claims seeking recovery of Social
Security benefits, "federal question jurisdiction is clearly
foreclosed" by the third sentence of 405(h)). Accordingly,
plaintiff's FTCA claim will be dismissed because this Court lacks
subject matter jurisdiction.
The Court concludes that plaintiff failed to exhaust his
administrative remedies with respect to both the FOIA and Privacy
Act claims. Plaintiff's demand for recovery of Social Security disability insurance benefits must be dismissed because
the Court lacks subject matter jurisdiction over such a claim. An
Order consistent with this Memorandum Opinion will be issued
separately on this same date.