Delott v. Astrue
| Decision Date | 18 February 2011 |
| Docket Number | 08-CV-3952(JS) |
| Parties | JEFFERY DELOTT, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
For Plaintiff: Jeffrey D. Delott, Esq., Pro se
For Defendant: Thomas A. McFarland, Esq.
Pending before the Court are two motions, the first is a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) filed by defendant Michael Astrue, the Commissioner of Social Security ("Commissioner" or "Defendant") (Docket Entry 16), the second is a motion for judgment on the pleadings filed by Jeffrey Delott ("Delott" or "Plaintiff") (Docket Entry 23). For the reasons discussed below, Defendant's motion is GRANTED and Plaintiff's is DENIED.
Plaintiff, an attorney who represents claimants seeking Social Security Disability ("SSD") benefits, filed a complaintagainst the Commissioner on September 26, 2008, requesting that the Court grant him mandamus relief from the Commissioner's decision, pursuant to 42 U.S.C. § 406(a) and 20 C.F.R. § 404.1720(d), that Plaintiff was entitled to $1,500.00 in fees, which represented $3,800.00 less than the amount it originally awarded Plaintiff ($5,300.00) for his representation of Kathleen Connolly ("Connolly"), an SSD claimant. Although it is not apparent from the face of his Amended Complaint, Plaintiff additionally seeks an order "compelling Defendant to determine immediately the amount of SSD benefits due Gayatri Persaud ("Persaud"), a second SDD claimant and to pay the correct amount of attorney fees due Plaintiff for representing Sonya Weekes ("Weekes"), a third SSD claimant." Pl.'s Mem in Opp. to Mot. to Dismiss, p. 3. The factual issues relating to each of the three SSD claimants are treated in turn.
On September 8, 2007, and as a result of Plaintiff's successful representation of Connolly, the Commissioner sent Connolly a Notice of Award ("NOA"). The NOA informed her that she would be awarded $24,941.00, that Plaintiff's attorney fee, deducted from her SSD award, would be $5,300.00, and that she would have fifteen days from receipt of the NOA to "tell us that you disagree with the amount of the fee and give your reasons". Id., Ex. A. (Relatedly, 20 C.F.R. § 404.1720(d) requires an SSD claimant or her attorney to contest the attorney fee within 30 days.)
On January 1, 2008, Defendant wrote to Connolly to address the letters she had sent to the New York State Grievance Committee for the 10th Judicial District and the Nassau County Bar Association on September 28, 2007, and to the Lawyer's Fund for Client Protection and the Office of Senator Charles E. Schumer on October 15, 2007, requesting that they review the fee amount Defendant awarded Plaintiff. Declaration of James McGrath ("McGrath Decl."), ¶ 71; see also McGrath Decl., Ex. C. The Defendant also noted that, despite the flurry of attorney fee complaints Connolly had been issuing, it had not received a request to review Plaintiff's $5,300.00 fee and that it would not review that decision unless Connolly furnished a good reason for not complying with the complaint deadline. McGrath Decl., ¶ 7. Four days later, Connolly responded and stated that she had indeed submitted a complaint about the fee on September 11, 2007, in which she offered reasons why the Defendant should reduce its attorney fee calculation. Id. at ¶ 9.
On April 3, 2008, Defendant informed Connolly and Plaintiff that, notwithstanding Connolly's apparent failure to successfully lodge a complaint within the required time frame, itwould review the fee amount Plaintiff could charge. Id., ¶ 10. Then, on July 14, 2008, reversing its previous attorney fee decision, Defendant notified Connolly and Plaintiff that Plaintiff's fee would be reduced from $5,300.00 to $250.00. Id., ¶ 12. After Plaintiff requested a review of this decision to dramatically reduce his fee, the Defendant reversed itself yet again and, on August 28, 2008, informed Connolly and Plaintiff that Plaintiff was entitled to attorney fees of $1,500.00 and that no further review would be available to either Connolly or Plaintiff. Id., ¶ 15.
When it became apparent that Plaintiff would not comply with Defendant's directive to reduce his fee (that is, from $5,300.00 to $1,500.00), Defendant refunded Connolly the $3,800.00 difference between the original and final awards. Id., ¶ 20.
The gravamen of Plaintiff's Complaint with respect to Connolly is that Defendant should be ordered to reverse its decision reducing Plaintiff's fee because it constituted a violation of the administrative rule that a claimant must contest an attorney fee decision within 30 days (20 C.F.R. §404.1720(d)).
Plaintiff filed Persaud's SSD application on March 7, 2007. Delott Aff., ¶ 57. Whereas it ordinarily takes Defendant five to six months to settle SSD applications, an initial determination of Persaud's application was not made until over ayear and a half after Plaintiff's filing. And, given Persaud's work history, the amount of the SSD award was inadequate. Id., ¶ 58. On January 6, 2009, an employee in Defendant's Baltimore payment center confirmed that Persaud's award was not sufficient but stated that because Persaud worked both in Canada and the United States an "issue of first impression" was presented. Id., ¶ 61. For that reason, the employee informed Plaintiff that the matter could not be resolved absent intervention by Persaud's Congressional representative since it involved "policy" about which no employee wished to hazard a decision. Id. The employee further advised Plaintiff to contact another employee of Defendant's, Rosarie Boyer, but she never returned Plaintiff's calls. Id.
Although such a claim is not apparent from the face of Plaintiff's Complaint, Plaintiff argues in his papers that "since Defendant has failed to make a decision within a reasonable period of time, it should be compelled to treat Ms. Persaud's claim as if all of her work credits were earned in the United States and ordered to pay her benefits accordingly." Pl.'s Mem. in Opp. to Mot. to Dismiss, p. 6.
Finally, Plaintiff filed Weekes' application for SSD benefits on February 27, 2007; approximately six months later, Defendant issued a NOA on September 8, 2007, which stated that Weekes would receive benefits and that $1,366.75 would be set asidefor Plaintiff's fee. See Docket Entry 31, Corrected Cabral Declaration ("Cabral Decl."), ¶ 4. Plaintiff claims this reduces his fee by $61.75. Pl.'s Mem. in Opp. to Mot. to Dismiss, p. 6. Plaintiff, however, never filed for an administrative review of this decision with Defendant. Cabral Decl., ¶ 8.
On November 13, 2007, Plaintiff submitted an application for benefits in connection with Weekes' children, which, Plaintiff argues (but does not plead in his Complaint), have not been fully paid to date. Pl.'s Mem. in Opp. to Mot. to Dismiss, p. 6. More specifically, he contends that children's benefits are normally 50% of the primary SSD benefit, in this case $3,077.00. Thus, Plaintiff's award should have been 25% of $3,077.00, or $769.25. Id. Despite receiving a copy of the NOA for the children's benefits on October 6, 2009, however, Plaintiff never filed for administrative review of this decision with Defendant pursuant to 20 C.F.R. §404.1720(d). Cabral Decl., ¶ 8.
On December 9, 2009, Defendant filed a motion to dismiss based on a lack of subject matter jurisdiction, arguing that this Court has neither mandamus jurisdiction pursuant to 28 U.S.C. § 1361 nor general federal question jurisdiction under 28 U.S.C. § 1331, nor jurisdiction over the "final decisions" of Defendant pursuant to 42 U.S.C. § 405(g).
The standard applicable to a motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), is well established:
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court, as it did here, may refer to evidence outside the pleadings. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.
Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000).
A writ of mandamus--an extraordinary remedy--is issued when a government official fails to comply with a specific regulatory or statutory directive. See, e.g., Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 543 (S.D.N.Y. 2008). Its jurisdic-tional requirements2, which are closely related to the merits, arethreefold. The plaintiff must demonstrate by a preponderance of the evidence (1) a "clear and indisputable" right to the relief sought, In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988); (2) "a plainly defined and peremptory duty on the part of the defendant to do the act in question"; and (3) that "no other adequate remedy [is] available". Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972). A plaintiff cannot satisfy the second element where there is no plainly defined, clear, nondiscretionary duty. See Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989).
Here, Plaintiff argues, first, that he enjoyed the right to an attorney fee of $5,300.00 given that Defendant properly awarded it to him only to reverse itself after it decided, in violation of the 30-day complaint rule in 20 C.F.R. §404.1720(d), to accept Connolly's belated fee complaint. Relatedly, he contends that it was Defendant's "plainly defined" and "nondiscretionary" duty to reject Connolly's complaint after the 30-day window had closed and to award Plaintiff the full fee. The Court disagrees.
Under 20 C.F.R. § 404.1720(d)(1)3, it is true enough that there is a 30-day window in which a claimant or...
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