Plaintiff’s damage allegations are frivolous as CalPERS is not capable of diverting Social Security Fund assets as alleged by Case 5:16-cv-00211-C Document 91 Filed 01/05/17 Page 21 of 26 PageID 825 15 Plaintiff. See 42 U.S.C. § 401(d) (the Fund’s investment capabilities are limited to certain classes of Treasury notes). In sum, Plaintiff failed to show how his alleged injuries were the preconceived purpose or intended consequence of the defendants’ alleged RICO predicate acts.

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).

******* The Acting Commissioner (Commissioner) moves to dismiss Counts I, II, III, IV, V, and VI of Plaintiff’s Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. MEMORANDUM IN SUPPORT OF ACTING COMMISSIONER’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT IN PART FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF MAY BE GRANTED INTRODUCTION The Social Security Administration (SSA or agency) administers a massive benefit system that, among other things, provides disability benefits to persons who are disabled as defined by the Social Security Act (Act), 42 U.S.C. §§ 401-434, 1381-1385. SSA pays benefits to individuals who are entitled to them, but must simultaneously preserve program resources and protect the public fisc by ensuring that those funds are not erroneously paid to individuals who are not entitled.