Barilla v. Colvin

BRIEF in Support re Motion to Dismiss

W.D. Pa.January 27, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA NORMAN J. BARILLA, ) ) Plaintiff, ) ) CIVIL ACTION NO. 16-1715 v. ) ) MAGISTRATE JUDGE NANCY A. BERRYHILL,1 ) ROBERT C. MITCHELL Acting Commissioner of ) Social Security, ) (Electronic Filing) ) Defendant. ) DEFENDANT’S BRIEF IN SUPPORT OF HER MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security (“Defendant” or “the agency” or “the Commissioner”), by and through the undersigned Assistant United States Attorney, respectfully moves, pursuant to Fed. R. Civ. P. 12(b)(1), to dismiss the Complaint of Plaintiff, Norman Barilla (Plaintiff) for lack of jurisdiction and, alternatively, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim. There is no basis to award Plaintiff his requested relief. As a threshold matter, Plaintiff has already been paid the attorney’s fees at issue in his Complaint. Moreover, under the doctrine of sovereign immunity, the United States has no liability for the payment of representative fees absent express waiver, and it is well-established that 42 U.S.C. § 406 is not a waiver of sovereign immunity. See, e.g., Binder & Binder P.C. v. Handel (In re Handel), 570 F.3d 140, 144 (3d Cir. 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the Defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 1 of 10 2 2009). Accordingly, the Court should dismiss this action, with prejudice, for lack of subject-matter jurisdiction pursuant to the doctrine of sovereign immunity. Even assuming this Court has jurisdiction to hear Plaintiff’s case, the Complaint fails to state a claim upon which relief can be granted, especially as there is no injury to be redressed – Plaintiff has not stated a cognizable cause of action, and moreover, he has already been paid the attorney’s fees at issue. Defendant therefore respectfully requests that this Court dismiss the instant action for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim upon which relief can be granted. I. FACTUAL BACKGROUND Plaintiff is the attorney who represented claimants Devin J. Pingree and Paul A. Ramsey in their Social Security disability claims (Compl. at ¶¶ 5, 9). Messrs. Pingree and Ramsey entered into fee agreements with Plaintiff whereby he would be paid a percentage of their past-due benefits if they were successful in obtaining benefits (Compl. at ¶¶ 7, 11). Messrs. Pingree and Ramsey were both awarded Social Security disability benefits during the summer of 2016 (Compl. at ¶¶ 5, 9). The agency withheld $1,179.00 from Mr. Pingree’s past-due benefits and $3,602.50 from Mr. Ramsey’s past-due benefits (Compl. at ¶¶ 7, 11). Plaintiff alleges that the agency wrongfully failed to pay him his representative fees, and that the agency informed him that the fees from representing Messrs. Pingree and Ramsey would not be forthcoming (Compl. at ¶¶ 8, 12, 14).2 2 The agency has paid Plaintiff’s fees in both the Pingree and Ramsey cases; thus, this issue is moot. Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 2 of 10 3 II. LEGAL STANDARDS A. Rule 12(b)(1): Lack of Subject-Matter Jurisdiction. Dismissal is appropriate under Rule 12(b)(1) of the Federal Rules of Civil Procedure if a court lacks subject-matter jurisdiction over a plaintiff’s claims. Fed. R. Civ. P. 12(b)(1). It is well- settled that a court lacks subject-matter jurisdiction in any case where an agency of the United States has been sued, unless the plaintiff shows that the United States unequivocally waived sovereign immunity and has consented to be sued. FDIC v. Meyer, 510 U.S. 471, 472 (1994). Once challenged, the party asserting subject-matter jurisdiction has the burden of proving its existence. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). B. Rule 12(b)(6): Failure to State a Claim. Dismissal is also appropriate under Rule 12(b)(6) when a plaintiff’s complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff must therefore allege facts demonstrating “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The court accepts as true a plaintiff’s well-pleaded factual allegations, and construes all factual inferences in the light most favorable to the plaintiff. Kaymark v. Bank of America, N.A., 783 F.3d 168, 174 (3d Cir. 2015). However, the court is not required to accept unreasonable inferences or assume the truth of legal conclusions cast in the form of factual allegations. Twombly, 550 U.S. at 553-56. Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 3 of 10 4 III. ARGUMENT A. The Court Lacks Subject-Matter Jurisdiction Over Plaintiff’s Claim. 1. The Doctrine of Sovereign Immunity Bars Plaintiff’s Suit to Recover Representative Fees From Defendant. This Court lacks subject-matter jurisdiction over Plaintiff’s suit because his claim for representative fees is barred by the doctrine of sovereign immunity. See Dep’t of Army v. Blue Fox., Inc., 525 U.S. 255, 260 (1999). Congress can waive sovereign immunity, but any such waiver must be expressed unequivocally and cannot be implied. United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992). Plaintiff’s Complaint does not identify any provision of the Social Security Act, 42 U.S.C. § 401, et seq., containing a waiver of immunity by the United States in this action. The Social Security Act has two attorney-fee provisions: one governs an attorney’s representation before the Agency, 42 U.S.C. § 406(a); the second governs the attorney’s representation before the court, § 406(b). This case relates to the first provision. Nothing in the provisions of Section 206 constitutes the United States’ express statutory consent to be sued that would allow this Court to enforce a fee award granted by the administrative law judge (ALJ). See United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992) (“[W]aivers of sovereign immunity must be ‘unequivocally expressed’ in statutory text, and cannot simply be implied”). The United States has no liability for the payment of attorneys’ fees absent the express waiver of sovereign immunity. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983). As many courts have concluded, the Social Security Act’s fee provisions do not waive the agency’s sovereign immunity with respect to claims by attorneys to obtain fees from the agency. See, e.g., Binder & Binder v. Colvin, 818 F.3d 66, 70-72 (2d Cir. 2016); Binder & Binder P.C. v. Handel Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 4 of 10 5 (In re Handel), 570 F.3d 140, 144 (3d Cir. 2009); Pittman v. Sullivan, 911 F.2d 42, 46 (8th Cir. 1990). For example, in In re Handel, a law firm sued to recover attorney’s fees from the agency that the agency had authorized but failed to withhold from a claimant’s past-due benefits; the firm was unable to collect the fees directly from the claimant because she had filed for bankruptcy. 570 F.3d at 142-43. The Third Circuit held the firm had “no direct recourse against the Commissioner of Social Security for the unpaid amount” of fees. 570 F.3d at 144. In so holding, the court rejected the firm’s assertion that the agency was “statutorily mandated” to pay the awarded fees. Id. As the court explained, the fee provisions in 42 U.S.C. § 406 “were developed, in large measure, to eliminate conflicts over fees between claimants and counsel by creating a statutory mechanism for payment as well as a statutory cap on fees.” Id. While the federal government “oversees and regulates the private obligation of the claimant to her counsel” under 42 U.S.C. § 406, the statute “does not create a federal promise to pay counsel independently of the private obligation” and, therefore, “does not represent a waiver of sovereign immunity vis-à-vis attorney’s fees.” Id. at 144-45. Similarly, in Pittman, the Eighth Circuit concluded that a district court lacked authority to order the Department of Health and Human Services (HHS) to pay authorized attorneys’ fees to counsel. 911 F.2d at 46.3 Noting that fee awards are not judicially reviewable, the Eighth Circuit found that the district court had “no authority to force the Secretary [of HHS] to comply with an award the court did not issue.” Id. (citation omitted). Further, the Eighth Circuit concluded that 42 U.S.C. § 406 “cannot be construed as a waiver of [sovereign] immunity because it contemplates 3 At the time that Pittman was decided, HHS administered the disability insurance benefits program. Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 5 of 10 6 payment of the fee award by the claimant, out of past-due benefits, rather than by the government, out of general funds.” Id. (emphasis in original, internal quotation marks and citation omitted).4 Plaintiff’s Complaint reduces to the same issue: Plaintiff is demanding that the agency pay attorney’s fees (which, in any event, he has already been paid). Plaintiff complains that he “is entitled to receive the total sum of $4,781.50 from the Social Security Administration,” demands the “prompt disbursement of approved fees as awarded [sic] by the Social Security Administration, in the sum of $4,781.50” and seeks “judgment and costs in favor of the Plaintiff.” Complaint ¶ 14, WHEREFORE clause. Plaintiff has not shown that his suit to obtain fees falls within an unequivocally expressed waiver of sovereign immunity by Congress, and therefore, it must be dismissed with prejudice due to lack of subject matter jurisdiction. 2. Plaintiff Cannot Establish Jurisdiction Under the Administrative Procedure Act. Plaintiff also errs in asserting in his Complaint that jurisdiction is proper under the Administrative Procedure Act (APA). Complaint ¶ 1 (citing 5 U.S.C. § 702). First, the APA does not confer jurisdiction on federal courts to review agency actions. Califano v. Sanders, 430 U.S. 99, 105 (1977) (“T]he better view is that the APA is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency actions.”). 4 Other courts have similarly found that sovereign immunity barred attempts to compel the agency to pay attorney fees. See, e.g., Binder & Binder, P.C. v. Colvin, 55 F. Supp. 3d 439, 443-46 (E.D.N.Y. 2014) (“Nothing in [42 U.S.C. § 406] unambiguously states that the agency is directly obligated to pay attorneys’ fees, or that the failure to withhold attorneys’ fees from the claimant opens the agency to a claim for money damages.”), aff’d, Binder & Binder, 818 F.3d at 70-72; Binder & Binder, P.C. v. Colvin, No. 13-CV-432 (DRH), 2014 WL 6632713, at *3-*6 (E.D.N.Y. Nov. 21, 2014) (concluding that 42 U.S.C. § 406 “lacks an unequivocally expressed waiver of sovereign immunity, and, consequently, . . . Plaintiff’s action for money damages against the SSA is barred”). Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 6 of 10 7 Second, in any event, to invoke the APA’s jurisdiction, Plaintiff would have to demonstrate that: (1) the agency had a nondiscretionary duty to act; and (2) the agency unreasonably delayed in acting on that duty. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (APA “empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’”) (citation omitted). The Complaint does not allege facts to establish a clear, non-discretionary duty for the agency to pay him his representative fees immediately, or within a certain time limit. See Compl. Indeed, Plaintiff has not alleged that any language in the Social Security Act requires a federal agency to take discrete and specific action as to how the agency pays representative fees. See Norton, 542 U.S. at 64. And courts have held that the agency does not owe a clear, non- discretionary duty to perform functions related to processing cases within a specified time frame when neither Congress nor the Commissioner has established a set time for performing those functions. See, e.g., Heckler v. Day, 467 U.S. at 104 (1984) (noting “repeated congressional rejection of the mandatory deadlines on agency adjudication of disputed disability claims”). The statute and regulations that govern payment of past-due benefits and attorney’s fees for representation before the agency do not prescribe a set period for issuing notices and payments. See 42 U.S.C. § 406(a)(2)(A), (D). Here, Plaintiff’s Complaint fails to point to any statute or regulation that requires the agency to pay him fees within a specified time frame. Thus, Plaintiff has not and cannot establish jurisdiction under the APA. B. Alternatively, Plaintiff Fails to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, even assuming the Court has jurisdiction to hear this case, Plaintiff’s claims must be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 7 of 10 8 Plaintiff’s Complaint does not set forth a cognizable cause of action. To the extent that his action is for declaratory judgment, declaratory relief is not a cause of action, but rather a form of equitable relief that must be premised on a separate, stand-alone cause of action. See 28 U.S.C. §§ 2201, 2202; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–74 (1950). Furthermore, in order for a federal court to review a case, the plaintiff must establish that he has a redressable injury caused by the defendant’s conduct. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992). The plaintiff carries the burden of proving that he has standing. See id. at 561. Federal courts may not give opinions on moot questions, Calderon v. Moore, 518 U.S. 149, 150 (1996), and a case is moot when the issues presented are no longer live. City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). This case is moot, rendering Plaintiff without standing, because the injury asserted in Plaintiff’s Complaint has already been redressed – Plaintiff has already been paid the attorney’s fees from his representation of Messrs. Pingree and Ramsey. Plaintiff has no present injury, and therefore, no further relief can be granted. Because the relief Plaintiff seeks has already been granted, this action is moot. Therefore, for the reasons set forth above, Plaintiff’s Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 8 of 10 9 IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court dismiss the instant action for lack of subject-matter jurisdiction, with prejudice. In the alternative, Defendant requests that this Court dismiss Plaintiff’s Complaint with prejudice for failure to state a claim upon which relief can be granted. Respectfully submitted, SOO C. SONG Acting United States Attorney s/Christy Wiegand CHRISTY CRISWELL WIEGAND Assistant U.S. Attorney Western District of Pennsylvania Joseph F. Weis, Jr. U.S. Courthouse 700 Grant Street, Suite 4000 Pittsburgh, PA 15219 (412) 894-7452 Counsel for Defendant OF COUNSEL: Nora Koch Regional Chief Counsel, Region III Katie M. Gaughan Assistant Regional Counsel Office of the General Counsel Social Security Administration Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 9 of 10 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of January, 2017, a true and correct copy of the within Defendant’s Brief in Support of Motion to Dismiss Plaintiff’s Complaint was served by electronic filing, to and upon the following: Norman J. Barilla, Esquire Law Office of Norman J. Barilla 111 West Sheridan Avenue New Castle, PA 16105 s/Christy Wiegand CHRISTY CRISWELL WIEGAND Assistant U.S. Attorney Case 2:16-cv-01715-RCM Document 3 Filed 01/27/17 Page 10 of 10