Korb v. Colvin
| Decision Date | 04 June 2014 |
| Docket Number | Case No. 4:12-cv-03847-JST |
| Court | U.S. District Court — Northern District of California |
| Parties | RICHARD E. KORB and FAYE Y. KORB, Plaintiffs, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
This matter is once again before the Court on a motion to dismiss. ECF No. 43. The Court will GRANT the motion in part and DENY it in part.
Plaintiff Richard Korb, an attorney, filed this action pro se on July 23, 2012, against the Commissioner of the Social Security Administration (SSA) and the SSA Operations Center "for the purpose of obtaining judicial enforcement of a final decision of the Commissioner of Social Security (May 7, 2009) in Plaintiff's favor and subsequent SSA 'Notice of Award,' promising to send Plaintiff a check in the sum of $9,126.40." ECF No. 1 ¶ 1. Richard's1 original complaint asserted jurisdiction based on his exhaustion of administrative remedies pursuant to 42 U.S.C. § 405(g). The Clerk of Court issued a Social Security Procedural Order, as it does in all cases seeking review of an SSA decision, on the day the original complaint was filed. ECF No. 2. That prompted Richard to file his First Amended Complaint, which alleged:
ECF No. 4 ¶ 1. The First Amended Complaint also alleged, again, that Richard had exhausted all administrative remedies and that the Court had jurisdiction pursuant to both 42 U.S.C. § 405(g) and 28 U.S.C. § 1361. ECF No. 4 ¶ 4. The Court consequently vacated the procedural order pertaining to SSA appeals. ECF No. 7 (Hamilton, J.).
Richard filed a Second Amended Complaint on October 22, 2012, which added claims for declaratory relief and an accounting. ECF No. 14. Defendants moved to dismiss on December 17, 2012, pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted. ECF No. 15.
Rather than responding, Richard filed a Third Amended Complaint ("TAC"), which added his ex-wife, Faye Korb, as Plaintiff, and augmented Richard's factual allegations. ECF No. 29. The TAC named the SSA and the SSA Commissioner as Defendants, and asserted that this Court had jurisdiction over Plaintiffs' claims pursuant to the mandamus statute, 28 U.S.C. § 1361, federal question jurisdiction, 28 U.S.C. § 1331, sections 702 and 706 of the Administrative Procedure Act ("APA"), codified at 5 U.S.C.§§ 702 and 706, and Federal Rules of Civil Procedure 57 and 65. TAC, ECF No. 29 ¶ 1. Defendants again moved to dismiss on April 17, 2013. ECF No. 31. This Court dismissed Plaintiffs' TAC with leave to amend for lack of subject matter jurisdiction. ECF No. 47.
Plaintiffs filed a Fourth Amended Complaint ("FAC") on October 25, 2013, ECF No. 42, which again augmented Plaintiffs' allegations and asserted claims under the mandamus statute, 28 U.S.C. § 1361, sections 702 and 706-708 of the APA, codified at 5 U.S.C. §§ 702 and 706-08, and section 552a of the APA, 5 U.S.C. § 552a. FAC ¶ 1.
Defendants moved to dismiss on January 9, 2014, ECF No. 43, which motion the Court now considers.
In March 1996, while returning home from work in San Francisco, Richard Korb was mugged near the West Oakland Bart Station, in Oakland, California. FAC ¶ 8. The injuries Richard received forced him to stop working. Id. He began receiving Social Security disability benefits in January 1999, which continued "sporadically" through 2004. Id.
In 2002, and again in 2005, the SSA erroneously claimed that it overpaid Richard. Id. ¶ 9. Both times, Richard appealed the decision, leading to over ten years of SSA process. Id. He alleges that, during that time, he has spent over five hundred hours writing letters, making phone calls, meeting with SSA field officers, attending hearings, and filing and litigating administrative appeals. Id. The SSA ruled in Richard's favor twice, but he continues to receive letters demanding repayment of benefits for the period from 1999 to 2004. Id. ¶¶ 9.
On March 9, 2009, the SSA Appeals Council issued a "Notice of Appeals Council Action" finding that: (1) Richard was not overpaid benefits, and (2) the SSA actually owed Richard benefits in the amount of $10,529. Id. ¶ 10. On May 7, 2009, this decision became the "final decision" of the SSA. Id. ¶ 12. The Notice of Appeals Council Action stated that the date of the notice of the initial determination was August 23, 2005. Id. ¶ 11. Accordingly, the SSA had the authority to modify the Commissioner's decision until August 22, 2009. Id.
Despite the SSA's issuance of a final decision, and Richard's repeated requests for payment, the SSA did not pay him for the next three and one-half years. Id. ¶ 13. On August 2, 2010, the SSA sent Richard a "Notice of Award" informing him that he would receive a check, id. ¶ 14, but the check never came, id. Instead, the SSA informed Richard that his case was still under investigation. Id. In separate letters, it also continued to demand repayment for overpaid benefits. Id.
Richard then asked his Congressman, Rep. John Garamendi, to intervene. Id. Rep. Garamendi's staff sent a letter to the SSA on May 22, 2012, requesting an explanation. Id. In response, on July 10, 2012, the SSA issued Richard a "Notice of Change in Benefits" disavowing the prior award for underpayment of benefits and demanding $59,208.90. Id.
Richard filed this action two weeks later. Id. ¶ 15.
After this action was filed, the SSA continued to send Richard correspondence about his case. Id. On September 12, 2012, the SSA sent him billing statements for $15,219.10 and $43,989.80 for overpayment. Id. On October 8, 2012, the SSA issued a "Notice of Revised Decision" with respect to the May 2009 final decision, "unilaterally revising the Commissioner's decision. Id. ¶ 17.
Then on October 16, 2012, three months after this action was filed, the SSA issued Richard an accounting summary indicating that the SSA owed him $9,379.80, not $10,529. Id. ¶ 19. However, the summary also stated that he had previously received $168,287.00 in benefits, including $103,698 in disability benefits over three months in 1999, even though the maximum disability benefit allowed Richard during that period was $1,454 per month. Id. The summary also stated that Richard should have been paid $96,007.80, and that $83,657.00 in benefit checks sent to him were returned or not cashed. Id. Richard, believing these amounts to be incorrect, requested records from the SSA to support the summary. Id. ¶ 21. The SSA refused to produce additional supporting documentation, claiming that the records were in the possession of the Treasury Department, or, alternately, that they had been destroyed. Id.
On March 17, 2013, Richard received a "revised" accounting summary, stating that he should have received $93,081.90 in benefits, not $96,007.80, and that he was "no longer considered to be overpaid." Id. ¶ 24. The revised summary also deleted any reference to disability checks totaling $83,657 that were returned or not cashed by Richard, and stated that the SSA sent him a check for $9,379.80 in September 2012. Id. The revised accounting summary allowed for Richard to appeal the SSA's decision. He appealed by letter on March 20, 2013.
The SSA submitted, as an exhibit to a Joint Case Management Statement, its response to Richard's March 20 request for reconsideration. ECF No. 38 at 8. The response reiterates that Richard is no longer considered either overpaid or underpaid, by virtue of the $9,379.80 check he received after this suit was filed. It also confirms the accounting summary and states that Richard is entitled to appeal to an Administrative Law Judge. Richard sent the SSA a letter appealing the determination on July 25, 2013. According to a supplemental declaration Richard submitted in support of his opposition to the SSA's motion to dismiss, he has not heard from the SSA in thesubsequent eight months. Korb Supp. Decl., ECF No. 50 ¶ 2.
Richard Korb's ex-wife, Faye Korb, also received disability benefits based on Richard's disability determination. Id. ¶ 25. From 2003 to 2004, the SSA withheld some of the benefits due to Faye and the couple's three children because of alleged overpayments. Id. ¶ 28. According to the FAC, Faye earned $20,000 in 2001, but the SSA claimed she earned $250,000. Id. For several years, the amount paid to Faye and the amount listed on her 1099 SSA Benefit Statements, issued by the SSA, conflicted. Id. ¶ 29. In 2005, Faye was told her case was closed and no amount was due. Id. ¶ 30. However, she later learned that the IRS and credit bureaus had been notified in 2005 of a delinquency in the amount of $13,000. Id. ¶ 29. This damaged her credit score, which did not recover until 2012. Id. ¶ 29.
After a brief lull, the SSA began to send demand letters to Faye in about 2007. Id. ¶ 30. On the advice of the SSA, she submitted an economic hardship appeal waiver request. Id. She was told she would be notified if her appeal was denied. Id. Three years passed, and she began receiving "demand for repayment" letters again. Id.
After Richard's favorable 2009 determination, Faye attempted to persuade SSA to amend its accounting and stop sending her notices of overpayment. Id. ¶ 31. The attempt failed, and in June 2010, Faye received a notice indicating that she had...
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