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THORN v. SOCIAL SECURITY ADMINISTRATION

United States District Court for the District of Columbia


June 11, 2005.

WESLEY G. THORN, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.

The opinion of the court was delivered by: RICHARD LEON, District Judge

MEMORANDUM OPINION

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.

I. BACKGROUND

  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, Pennsylvania
  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 markings thereto.
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 letters.

  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.

  II. DISCUSSION

 

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 administrative remedies.

  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 regulations.

  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 matter jurisdiction.

  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. 12.

  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 (4th 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.

  III. CONCLUSION

  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.


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