Opinion
Civil Action 99-0578-CB-M
January 22, 2001
ORDER ON MOTION TO DISMISS
This matter is before the Court on the defendant's motion to dismiss. (Doc. 28). The defendant has filed a supporting memorandum and the plaintiff Steven Waddell an opposition. (Doc. 34-35). Each of these parties has also filed supplemental memoranda. (Docs. 42-45). The plaintiff Gloria Dixon has filed no response to the motion to dismiss. After careful consideration of the parties' arguments and the allegations of the complaint, the Court concludes that the motion to dismiss is due to be granted in part and denied in part.
Waddell has also filed a duplicate copy of his opposition. (Docs. 36-37).
The defendant's motion for extension of time, (Doc. 39), is granted. The parties' respective motions to file supplemental pleadings, (Docs. 42, 45), construed as motions for leave to file supplemental memoranda, are granted.
BACKGROUND
Plaintiff Waddell is a non-attorney representative of various claimants for Social Security benefits. Plaintiff Dixon is a client represented by Waddell. The defendant is the Commissioner of Social Security.
Plaintiff Hortense Blue has been dismissed on her own motion. (Docs. 26, 27, 33).
While the complaint named the Secretary for Health and Human Services as defendant, the Commissioner was substituted as defendant by order of Court. (Doc. 33).
In general, the complaint alleges as follows:
Waddell was duly authorized by Dixon to represent her in proceedings before the Office of Hearings and Appeals and was eligible to serve, and not suspended or prohibited from serving, as a non-attorney representative in such proceedings. On June 18, 1999, Waddell represented Dixon at her appellate hearing before an Administrative Law Judge ("ALJ"). At the hearing, Waddell refused to waive certain constitutional rights of Dixon, an incident ensued, and Waddell was escorted from the premises by city police officers and refused re-entry pending investigation.
This lawsuit was filed three business days later, complaining of the suspension of Dixon's hearing and of Waddell's inability to represent either Dixon or any other of his clients. The complaint asserts the following causes of action:
• Violation of Title VII of the Civil Rights Act of 1964
• Violation of 42 U.S.C. § 1981
• Deprivation of life, liberty and/or property without due process of law
ANALYSIS
Motions to dismiss are governed by Federal Rule of Civil Procedure 12. The defendants' motion implicates Rules 12(b)(1) (subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be granted).A motion to dismiss should not be granted under Rule 12(b)(6) "`unless the plaintiff can prove no set of facts which would entitle him to relief.'" Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th Cir. 1996) (quoting Peterson v. Atlanta Housing Authority, 998 F.2d 904, 912 (11th Cir. 1992)). In making this determination, the Court must "take all the allegations in the complaint as true, and view the complaint in the light most favorable to the plaintiff." Id. In contrast, factual disputes relative to subject matter jurisdiction must be determined by the Court in ruling on a motion to dismiss under Rule 12(b)(1). Scarfo v. Ginsberg, 175 F.3d 957, 961 (11th Cir. 1999), cert. denied, 120 S.Ct. 1267 (2000).
I. Title VII.
Title VII addresses discrimination in employment. The defendant argues that the plaintiffs have failed to state a claim because they do not allege that they were employees or applicants for employment. (Doc. 29 at 5-6). The complaint makes plain that the plaintiffs do not assert that they were victims of racial or other discrimination in employment, and Waddell acknowledges that "plaintiffs aren't asserting Title VII claims of discrimination on the basis of denial of employment in the federal government." (Doc. 35 at 14). Accordingly, the plaintiffs' Title VII claims are due to be dismissed.
II. Section 1981.
The defendant argues that Section 1981 applies only to actions taken under color of state law. (Doc. 29 at 6). In 1991, Congress amended Section 1981 to clarify that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981 (c). "Accordingly, the language of§ 1981 is clear: Section 1981 provides a cause of action for individuals subjected to discrimination by private actors and discrimination under color of state law, but does not provide a cause of action for discrimination under color of federal law." Lee v. Hughes, 145 F.3d 1272, 1277 (11th Cir. 1998), cert. denied, 525 U.S. 1138 (1999). This was the law even before the insertion of subsection (c). Id. The plaintiffs offer no defense of this claim. Accordingly, the plaintiffs' claim under Section 1981 is due to be dismissed.
III. Bivens Action.
The plaintiffs argue that their claims for deprivation of life, liberty or property without due process of law may be pursued under the "constitutional tort" theory first enunciated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 35 at 14-16).
A. Dixon.
In Schweiker v. Chilicky, 487 U.S. 412 (1988), the plaintiffs complained that their Social Security disability benefits under Title II were improperly terminated pursuant to a continuing disability review due to constitutional due process violations by certain officials administering the review program. Id. at 414-18. The Supreme Court determined that, under Bivens, the failure of the Constitution or an act of Congress to expressly provide a judicial remedy of monetary damages is not dispositive of the non-existence of such a remedy. Id. at 421. Instead, the Court identified several considerations for use in determining whether such a remedy should be judicially provided absent express constitutional or legislative language doing so: (1) whether there is an "explicit statutory prohibition against the relief sought"; (2) whether there is an "exclusive statutory alternative remedy"; and (3) whether there are any "`special factors counselling hesitation in the absence of affirmative action by Congress.'" Id. (quoting Bivens v. Six Unknown Named Agents, 403 U.S. at 396-97).
The latter consideration incorporates, inter alia, the existence vel non of "`comprehensive procedural and substantive provisions giving meaningful remedies against the United States.'" 487 U.S. at 422 (quoting Bush v. Lucas, 462 U.S. 367, 368 (1983)). Sufficiently intricate provisions "sugges[t] that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of [a statutory scheme's] administration," and the Court will exercise "appropriate judicial deference to [these] indications that congressional inaction has not been inadvertent." Id. at 423.
The Chilicky Court then recounted the myriad administrative procedural stages and safeguards available to Social Security claimants. 487 U.S. at 424. Moreover, "[o]nce these elaborate administrative remedies have been exhausted, a claimant is entitled to seek judicial review, including review of constitutional claims." Id. Because "Congress is the body charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program," and because Congress has adequately addressed the procedural and substantive remedies available for redressing errors, including constitutional ones, that occur in administering the system, the Court refused to recognize a. Bivens cause of action. Id. at 429.
Chilicky directly controls Dixon's Bivens claim. While the plaintiffs in Chilicky challenged the termination of benefits, the Court made clear that its analysis extends as well to initial denials of benefits. 487 U.S. at 414; see also Lohse v. Chater, 1997 WL 3387 (10th Cir. 1997) (a Bivens claim for unconstitutional delay in adjudicating a claim for disability benefits is barred by Chilicky). Similarly, while Chilicky specifically addressed only Title II, the Court made clear that its analysis applied as well to the "essentially identical" Title XVI. 487 U.S. at
424. While constitutional error in Chilicky crept in at a lower administrative level than here, both administrative and judicial strata of review remain available to Dixon to assert her constitutional claims.
Waddell's only effort to distinguish Chilicky is to assert that the constitutional violations in this case "were done outside the record," apparently because the alleged violations were not recorded on tape. (Doc. 44 at 5). This circumstance, however, while it may affect the ease or difficulty with which Dixon may prove a constitutional violation, does not impact the Court's assessment of the congressionally created administrative and judicial remedies for such violations and thus does not draw into question the existence of special factors militating against recognition of a Bivens cause of action.
In summary, Dixon's claim for deprivation of life, liberty or property without due process of law, to the extent based on a Bivens theory, is due to be dismissed.
B. Waddell.
The defendant has failed to address explicitly the availability of a Bivens action in favor of Waddell. Because Waddell is not a claimant but a non-attorney representative of a claimant, the "elaborate administrative remedies" and judicial review on which the Chilicky Court relied, 487 U.S. at 424, do not control. Similarly, while "[o]ur most recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts," 487 U.S. at 421, and while the Eleventh Circuit has declined to adopt a Bivens remedy in numerous situations based on one or more of the considerations identified in Chilicky, such glittering generalities are an insufficient substitute for the analysis the Supreme Court requires in assessing the availability of a Bivens claim under a particular set of circumstances.
Such an analysis requires, as a starting point, an identification of relevant administrative and statutory language. Although not tied to a Bivens discussion, (Doc. 29 at 9-10), the defendant has noted that Congress authorized the Commissioner to prescribe rules and regulations governing the conduct of non-attorney representatives and to suspend or terminate the right of such a representative to appear as a sanction for non-compliance with such rules and regulations. 42 U.S.C. § 406 (a)(1). The Commissioner accordingly has promulgated rules of conduct and developed an administrative procedure for hearing, deciding and appealing suspensions and terminations of non-attorney representatives. 20 C.F.R. § 404.1740-.1799.
On the present record and argument, the Court cannot conclude as a matter of law that these provisions satisfactorily "sugges[t] that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of [the Act's] administration" so as to justify rejection of a Bivens remedy due to the existence of "special factors counselling hesitation in the absence of affirmative action by Congress." 487 U.S. at 421, 423. Among other issues unaddressed by the defendant that could affect the outcome of the analysis are the following: (1) that the procedures are purely administrative, not judicial; (2) that the procedures were developed purely administratively, without any legislative framework; and (3) that Waddell alleges he was suspended peremptorily, prior to receiving the "notice and opportunity for hearing" that both Congress and the Commissioner appear to require prior to suspension. See 42 U.S.C. § 406 (a)(1); 20 C.F.R. § 404.1745-.1770.
Cf. Schweiker v. Chilicky, 487 U.S. at 424 (noting that a claimant "is entitled to seek judicial review"); Bush v. Lucas, 467 U.S. at 385 (noting that federal civil servants are protected by an elaborate, comprehensive scheme including judicial redress).
Cf. Schweiker v. Chilicky, 487 U.S. at 424 (steps of the process were enacted by statute).
Similarly, on the present record and argument the Court cannot conclude as a matter of law that Waddell's Bivens claim is premature for failure to exhaust administrative remedies. Among other issues unaddressed by the defendant that could affect the outcome of the analysis are the following: (I) whether an exhaustion requirement applies to Bivens claims in general or to Waddell's claim in particular; (2) the nature of the exhaustion required; (3) whether compliance has for any reason been excused; and (4) the effect of the January 2000 lifting of Waddell's suspension.
The defendant's suggestion that the lifting of the suspension some seven months after it was imposed somehow eliminates a case or controversy, (Doc. 42 at 2), merits no response. Similarly, the defendant offers no justification for his suggestion that this Court abstain from hearing Waddell's claim. ( Id. at 3-4).
Accordingly, and without intimating that the claim would necessarily survive a properly supported motion to dismiss or motion for summary judgment, the defendant's motion to dismiss as it applies to Waddell's Bivens claim is due to be denied.
IV. Social Security Act.
As noted, "[o]nce these elaborate administrative remedies have been exhausted, a claimant is entitled to seek judicial review, including review of constitutional claims." Schweiker v. Chilicky, 487 U.S. at 424. Thus, Dixon may pursue her claim asserting a due process violation in the context of a routine appeal from an adverse Social Security determination, even absent a Bivens remedy. The defendant, however, argues that this action is premature, and that the Court lacks jurisdiction to hear it, because Dixon failed to exhaust her administrative remedies before filing suit. (Doc. 29 at 7-8).
"Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision . . . ." 42 U.S.C. § 405 (g) (emphasis added). Section 405(g) provides the exclusive avenue for judicial review of a denial of claimed benefits. Weinberger v. Salfi, 422 U.S. 749, 757 (1975); 42 U.S.C. § 405 (h).
To obtain a "final decision," a claimant must "proceed through all three steps of the administrative appeals process," including de novo reconsideration by the state agency of its initial determination, hearing before a federal ALJ, and discretionary review by the Appeals Council. Bowen v. City of New York, 476 U.S. 467, 471-72, 482 (1986); accord Sims v. Apfel, 120 S.Ct. 2080, 2083 (2000). As both the complaint and Waddell's briefs make plain, Dixon has not obtained a final decision as she has not received a decision or recommended decision by the ALJ nor sought review by the Appeals Council.
The "final decision" requirement, however, is not absolute, because it consists of two elements, one of which may be waived. The non-waivable element of a final decision is that "a claim for benefits shall have been presented to the [Commissioner]." Mathews v. Etheridge, 424 U.S. 319, 328 (1976). This requirement may be satisfied by asserting a claim for benefits before the state agency, see id. at 323-25, 329, as the complaint alleges that Dixon has done. The defendant makes no contention that the non-waivable aspect of the final decision requirement remains unsatisfied.
The waivable aspect of the final decision requirement is "that the administrative remedies prescribed by the [Commissioner] be exhausted." Mathews v. Etheridge, 424 U.S. at 328. The Eleventh Circuit has identified three situations in which such waiver may occur. See Crayton v. Callahan, 120 F.3d 1217, 1221-22 (11th Cir. 1997). As discussed below, none of these situations has application here.
First, the Commissioner may waive the exhaustion requirement by failing to raise it at an appropriate point in the litigation. 120 F.3d at 1221. The Commissioner here has asserted non-exhaustion at his earliest opportunity.
Second, exhaustion may be excused when "the only contested issue is constitutional, collateral to the consideration of claimant's claim, and its resolution therefore falls outside the agency's authority." 120 F.3d at 1222. Mathews v. Etheridge, from which the Crayton Court extracted this exception, rested equally on the fact that requiring exhaustion could result in the constitutional right being lost and irreparable harm consequently being incurred. 424 U.S. at 331-32 332 n. 11; Bowen v. City of New York, 476 U.S. at 483. With respect to irreparable injury, Dixon, unlike the plaintiff in Mathews, has not "raised at least a colorable claim that because of h[er] physical condition and dependency upon the disability benefits, an erroneous [de]termination could damage h[er] in a way not recompensable through retroactive payments," 424 U.S. at 331, or, like the plaintiffs in Bowen, asserted she will suffer a medical setback due to the trauma of a delay in the award of benefits. 476 U.S. at 483-84. Nor does it appear that Dixon's claim is "entirely collateral to h[er] substantive claim of entitlement," Mathews v. Etheridge, 424 U.S. at 330, as she prays for judicial relief in the form of an award of benefits. See also Bowen v. City of New York, 476 U.S. at 483 (constitutional claim was collateral where the plaintiffs "neither sought nor were awarded benefits in the District Court"). Finally, the defendant is authorized to correct, and may realistically be expected to correct, any erroneous suspension of Waddell. Cf. Mathews v. Etheridge, 424 U.S. at 330 (exhaustion waived where "[i]t is unrealistic to expect that the [Commissioner] would consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context.").
Indeed, the parties agree that Waddell's suspension has been lifted. (Doc. 42 at 2; Doc. 43 at 3).
Finally, the Eleventh Circuit recognized that exhaustion "may be impractical and inconsistent with the exhaustion principles [as] when a judicial determination has been made that the agency's procedure is illegal." 120 F.3d at 1222. A similar practicality concerns the scope of the challenged practice. When a plaintiff "alleg[es] mere deviation from the applicable regulations in his particular administrative proceeding [,] [i]n the normal course, such individual errors are fully correctable upon subsequent administrative review [, and] the agency ordinarily should be given the opportunity to review application of those regulations to a particular factual context." Bowen v. City of New York, 476 U.S. at 484-85. Unlike the plaintiffs in Mathews and Bowen, Dixon does not challenge any overarching deficiency in the Commissioner's rules, regulations or practices but only a particular failure of a particular ALJ to comply with them.
Waddell argues that the ALJ's action in prohibiting his entry into the building pending investigation of the June 1999 incident effectively precluded Dixon from obtaining a final decision because the prohibition prevented him from representing her interests at a hearing and (implicitly) she was unwilling to proceed without his assistance. Waddell's argument implicates the "practicality" aspect of Crayton's listing of exceptions to the exhaustion requirement. However, assuming that Dixon refused to proceed until Waddell's status was clarified, this stance only delayed her receipt of a final decision; it did not render a final decision unattainable or impractical. Delays are an unfortunate but inevitable aspect of both the administrative and judicial processes, and mere delay in one's ability to obtain a final decision does not trigger an exception to the exhaustion doctrine any more than would a continuance of a hearing due to the unavailability of a key witness.
As a general principle, "the interests of the individual weigh heavily against requiring administrative exhaustion [when] requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action [as] from an unreasonable or indefinite timeframe for administrative action." McCarthy v. Madigan, 503 U.S. 140, 146-47 (1992). Compared to the ten years at issue in Walker v. Southern Railway Co., 385 U.S. 196, 198 (1966), cited in McCarthy v. Madigan, 503 U.S. at 147, the seven months of Waddell's suspension appears quite reasonable. Nor has any undue prejudice to Dixon from this delay been identified.
In summary, the Court is without jurisdiction to hear an appeal pursuant to Section 405(g) because Dixon has failed to obtain a final decision and the requirement has not been waived.
CONCLUSION
The defendant's motion to dismiss as it relates to Waddell's Bivens claim for deprivation of life, liberty or property without due process of law is denied. In all other respects, the defendant's motion to dismiss is granted.
It is so ORDERED.