Ruschak v. Tauberg et al

BRIEF in Support re Motion to Dismiss

W.D. Pa.March 31, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JEFFREY A. RUSCHAK, ) Civil Action No. 16-1531 ) Plaintiff, ) Judge David S. Cercone ) v. ) ) STUART A. TAUBERG, et al., ) ) Defendants. ) DEFENDANT ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION’S BRIEF IN SUPPORT OF MOTION TO DISMISS Pro se Plaintiff, Jeffrey Ruschak, commenced this action on October 5, 2016, against the Acting Commissioner of Social Security (“Commissioner”), among others, seeking damages in excess of $75,000. See ECF No. 5. Plaintiff claims that “all parties [were] equally involved in [a] ‘cover up’ of [his] true medical condition for over 20 years.” Id. at 5. As set forth below, sovereign immunity bars this Court’s subject-matter jurisdiction over Plaintiff’s claims against the Commissioner. In addition, Plaintiff’s Complaint fails to state a claim upon which relief can be granted, and therefore, the Commissioner should be dismissed from this action, with prejudice. APPLICABLE LEGAL STANDARDS I. MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION The party asserting the existence of federal jurisdiction bears the burden of proving that jurisdiction over the subject matter actually exists. Brown v. Tucci, C.A. No. 12-1769, 2013 WL 2190145 (W.D. Pa. May 20, 2013) (citing Development Finance Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995)). When considering a challenge to a court’s jurisdiction under Fed. R. Civ. P. 12(b)(1), a court ordinarily need not limit its inquiry to the Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 1 of 8 2 facts as pled in the complaint. Land v. Dollar, 330 U.S. 731, 735 (1947). Rather, “[t]he court may inquire by affidavits or otherwise, into the facts as they exist.” Id. at 735 n. 4. Such inquiry is permissible because a federal court must assure itself that it has jurisdiction over the case, and it may even resolve factual disputes in doing so. See Boyle v. The Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir. 1991) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). II. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Dismissal is proper under Rule 12(b)(6) of the Federal Rules of Civil Procedure only if it appears that the plaintiff’s claims are implausible and “the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). Thus, a plaintiff must set forth facts within the complaint that, if true, suggest plausible grounds for relief. Id. at 556. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a). When deciding whether to grant or deny a 12(b)(6) motion, the United States Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a plaintiff’s factual allegations must be enough to raise a right to relief above the speculative level). Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 2 of 8 3 More recently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held, “... a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citations omitted). The Court specifically highlighted the two principles which formed the basis of the Twombly decision: First, for the purposes of a motion to dismiss, courts must accept as true all factual allegations set forth in the complaint, but courts are not bound to accept as true any legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-79. Second, a complaint will only survive a motion to dismiss if it states a plausible claim for relief, which requires a court to engage in a context-specific task, drawing on the court’s judicial experience and common sense. Id. at 679. This means that a complaint must do more than allege the entitlement to relief; its facts must show such an entitlement. Id. (citing Fed.R.Civ.P. 8(a)(2)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Thus, where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint must be dismissed. Id. Stated simply, the pleading standard under Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Holmes v. Gates, No. 08-2152, 2010 WL 956412, at *2 (M.D. Pa. March 11, 2010) (quoting Iqbal, 129 S.Ct. at 1949, and Twombly, 550 U.S. at 555). III. PRO SE LITIGANTS Pro se pleadings, “however inartfully pleaded,” should be construed liberally and are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). Despite the liberal construction that is afforded to pro se complaints, a court need not accept legal Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 3 of 8 4 conclusions disguised as statements of fact, unsupported conclusions, or unwarranted references. See Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007); Day v. Federal Bureau of Prisons, 233 F. App’x 132, 133 n. 3 (3d Cir. 2007) (a court “need not ... credit a pro se litigant’s ‘bald assertions’ or ‘legal conclusions’.”) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)); Okpor v. Kennedy Health Sys., No. 10B1012, 2010 WL 3522784, at *2 (D.N.J. Sept. 2, 2010). Indeed, “a pro se complaint must still contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wallace v. Fegan, 455 F. App’x 137, 139 (3d Cir. 2011) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted). Thus, regardless of whether they are represented by counsel, all litigants must comply with the applicable Federal Rules. See Byrne v. Cleveland Clinic, 684 F. Supp. 2d 641, 649 (E.D. Pa. 2010) (“While the Court of Appeals for the Third Circuit traditionally has given pro se litigants ‘greater leeway where they have not followed the technical rules of pleading and procedure,’ ... all parties must nonetheless follow the Federal Rules of Civil Procedure”) (internal citations omitted). ARGUMENT I. THE DOCTRINE OF SOVEREIGN IMMUNITY BARS PLAINTIFF’S CLAIMS AGAINST THE COMMISSIONER The Commissioner, in her official capacity, is immune from Plaintiff’s allegations of a “cover-up” by the defendants of his medical condition. The Social Security Act, 42 U.S.C. §§ 405(g) and (h), authorize judicial review in cases arising under the Social Security Act. Those provisions also make clear that they are the exclusive jurisdictional basis for judicial review. Section 405(g) provides: Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 4 of 8 5 Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which [she] was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to [her] of notice of such decision or within such further time as the Commissioner of Social Security may allow. 42 U.S.C. § 405(g). Section 405(h) provides further: 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, United States Code, to recover on any claim arising under this subchapter. Id. § 405(h). Thus, Congress has explicitly stated that, in claims arising under the Social Security Act, judicial review is permitted only in accordance with section 405(g). It is well-settled that, “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475 (1994). Further, “the ‘terms of the [United States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Where a right, such as the right to sue, is a creature of statute, and the statute provides a special remedy, that remedy is exclusive. United States v. Babcock, 250 U.S. 328, 331 (1919). As the exclusive jurisdictional basis for judicial review in cases arising under the Social Security Act, section 405(g) authorizes review only of a “final decision of the Commissioner of Social Security made after a hearing.” The Supreme Court has recognized that “[t]his provision clearly limits judicial review to a particular type of agency action.” Califano v. Sanders, 430 U.S. 99, 108 (1977). The term “final decision” is undefined in the Act, and “its meaning is left to the [Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 767 (1975). The regulations, in turn, provide that a claimant must complete a multi-step Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 5 of 8 6 administrative review process to obtain a judicially reviewable final decision. See 20 C.F.R. § 404.900(a); see also Sanders, 430 U.S. at 102 (“The Act and regulations thus create an orderly administrative mechanism, with district court review of the final decision of the [Commissioner].”). Here, Plaintiff’s conspiracy/cover-up claim, even liberally construed, does not challenge any final decision of the Social Security Administration. Moreover, section 405(g) does not provide any waiver of the Social Security Administration’s immunity from allegedly tortious or criminal conduct asserted by Plaintiff. Rather, section 405(h) expressly prohibits such claims.1 In this same regard, Plaintiff has failed to identify any jurisdictional basis or waiver of sovereign immunity for seeking monetary damages against either the Commissioner or the Social Security Administration. Accordingly, because subject-matter jurisdiction over Plaintiff’s claims against the Commissioner is lacking, the Court should dismiss Plaintiff’s claims with prejudice. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693, n.2 (3d Cir. 1996) (citation omitted). II. PLAINTIFF FAILS TO STATE FACTS SUFFICIENT TO SHOW THAT HE IS ENTITLED TO ANY RELIEF Plaintiff’s Complaint against the Commissioner should be dismissed for the additional reason that he has failed to plead sufficient facts showing that he is entitled to any relief. Simply put, Plaintiff merely alleges that there were incorrect medical reports used in the denial 1 Nor would Plaintiff’s claims survive under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”), because neither the Commissioner nor the Social Security Administration may be sued directly under the FTCA. See Monet v. Mathews, 535 F. Supp. 2d 132, 137 (D.C. Cir. 2008) (rejecting an attempt to bring a negligent action against the SSA under the FTCA); Schlesner v. United States, 246 F. Supp. 2d 1036, 1041 n.2 (E.D. Wis. 2003) (holding “[t]o the extent the plaintiff is attempting to assert a claim against the [SSA] under the FTCA, such claim must be dismissed for the simple reason that the SSA cannot be sued under the FTCA.”). Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 6 of 8 7 of his Social Security application and that the Defendants were equally involved in a “cover up” of his true medical condition for over 20 years. See ECF No. 5 at 5. Such vague and conclusory allegations are not only unsupported by any other factual allegations, they are insufficient to create an inference of a meritorious claim under any legal theory. For these additional reasons, Plaintiff fails to state any cognizable causes of action against the Commissioner, and therefore, his claims should be dismissed. See Iqbal, 556 U.S. at 678 (“naked assertions devoid of further factual enhancement” are insufficient.).2 CONCLUSION For all of the foregoing reasons, Defendant, Acting Commissioner of the Social Security Administration, respectfully requests that this Court grant the Motion to Dismiss Plaintiff’s claims against her, with prejudice. Respectfully submitted, SOO C. SONG Acting United States Attorney s/Jennifer R. Andrade JENNIFER R. ANDRADE Assistant U.S. Attorney Western District of Pennsylvania Joseph F. Weis, Jr. U.S. Courthouse 700 Grant Street, Suite 4000 Pittsburgh, PA 15219 OF COUNSEL: Nora Koch, Regional Chief Counsel, Region III Katie Gaughan, Assistant Regional Counsel Office of the General Counsel Social Security Administration 2 To the extent that Plaintiff wished to appeal the denial of his Title II disability insurance benefits (DIB) application, he should have done so in an appropriate separate civil action pursuant to 42 U.S.C. § 405(g), not through this action involving an alleged “cover-up” plot by multiple unrelated defendants. Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 7 of 8 CERTIFICATE OF SERVICE I hereby certify that on this 31st day of March, 2017, a true and correct copy of the within Brief in Support of Motion to Dismiss was served by ECF and/or postage-paid U.S. Mail, to and upon the following: Jeffrey A. Ruschak 3635 Cambria Street Munhall, PA 15120 Pro se Plaintiff Michael C. Hamilton Weber Gallagher Simpson Stapleton Fires & Newby 603 Stanwix Street, Suite 1450 Pittsburgh, PA 15222 Mitchel Zemel Mitchel Zemel, Esq., LLC 200 Wallace Road, Suite 100 Wexford, PA 15090 Paula A. Koczan Weber Gallagher Simpson Stapleton Fires & Newby 603 Stanwix Street Two Gateway Center, Suite 1450 Pittsburgh, PA 15222 Edward A. Schenck Cipriani & Warner, P.C. 650 Washington Road, Suite 700 Pittsburgh, PA 15228 s/Jennifer R. Andrade JENNIFER R. ANDRADE Assistant U.S. Attorney Case 2:16-cv-01531-DSC Document 33 Filed 03/31/17 Page 8 of 8