Levine v. Saul
| Decision Date | 03 September 2020 |
| Docket Number | C.A. No. 19-569WES |
| Parties | ROB LEVINE, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — District of Rhode Island |
REPORT AND RECOMMENDATION
Plaintiff Rob Levine is an attorney in good standing who is licensed to practice law in Rhode Island, having been duly admitted by Rhode Island's Supreme Court; among his clients are individuals seeking disability benefits under the Social Security Act ("the Act"). Plaintiff has filed a one-count complaint against the Commissioner of Social Security ("Commissioner"), in reliance on two federal statutes, 5 U.S.C. § 500(b) and 42 U.S.C. § 406(a)(1). These statutes provide that an attorney who is admitted by the highest court of any state and remains in good standing is eligible to represent claimants before the Commissioner; § 500(b) adds the requirement of the filing of a written declaration by the attorney that they1 are qualified and authorized. Plaintiff's suit challenges the Commissioner's longstanding regulation - 20 C.F.R. § 404.1707 (and its analog, 20 C.F.R. § 416.1507)2 - which requires that a Social Securityclaimant must sign a notice (using Form SSA 1696 or other writing) designating an attorney as their representative in dealings with the Social Security Administration ("SSA"). Plaintiff seeks redress in the form of a judicial declaration voiding the Commissioner's regulation as inconsistent with, and contrary to, the statutory framework adopted by Congress.
With no material facts in dispute, now pending before the Court are dueling dispositive motions. The Commissioner has filed a motion to dismiss, while Plaintiff countered with a motion for summary judgment. ECF Nos. 6 & 11. Both motions have been referred to me for report and recommendation. 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend that the Court grant the Commissioner's motion to dismiss and deny as moot Plaintiff's motion for summary judgment.
The Court begins by explaining how a small procedural knot was untangled. Plaintiff filed his complaint in October 2019. ECF No. 1. The Commissioner subsequently moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and/or 12(b)(6), challenging not only the merits of the claim, but also raising the Court's subject matter jurisdiction based on Plaintiff's failure to mention anything beyond the Declaratory Judgment Act. ECF No. 6. Plaintiff objected to the motion to dismiss and filed his counter motion for summary judgment. ECF Nos. 10 & 11. On June 4, 2020, three days after the Commissioner replied to Plaintiff's objection to the motion to dismiss, Plaintiff moved to "amend/correct" the complaint by adding the specific averment that subject matter jurisdiction is based on 28 U.S.C. § 1331 and that, for the waiver of sovereign immunity, Plaintiff relies on 5 U.S.C. § 702. ECF Nos. 15 & 15-1. However, he forgot to attachthe supporting memorandum explaining the amendment. See generally id. The following day (after an inquiry from the clerk), Plaintiff filed the missing memorandum, but mistakenly titled it as a second motion to "amend/correct." ECF No. 16. In an attempt to clean up the mess efficiently, the Court granted Plaintiff's second motion, ECF No. 16, deeming it to be a motion for leave to file the supporting memorandum out of time. See June 5, 2020 Text Order. Unfortunately, this exacerbated the confusion - the parties misunderstood the Court's ruling as substantively granting the motion to amend. Accordingly, on June 8, 2020, Plaintiff filed his amended complaint. ECF No. 17.
To get the case back on track and ensure that the confusion had not prejudiced either party, the Court held a telephone conference. As a result of a discussion with the parties, the Court granted Plaintiff's first motion to amend/correct the complaint. See June 19, 2020 Text Order. The Court and parties also agreed that (1) Plaintiff need not refile the amended complaint so that ECF No. 17 would be the operative complaint; and (2) the Commissioner need not refile his motion to dismiss, so that ECF No. 6 would be the operative responsive pleading, provided that, based upon the allegations in the amended complaint, which the Commissioner agreed solved the jurisdictional problem,3 the Commissioner would no longer be pressing the motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), and the Court should disregard the portion of the brief focused on that argument.
In considering a Fed. R. Civ. P. 12(b)(6) motion, the court must accept as true all plausible factual allegations in the challenged pleading and draw all reasonable inferences in claimant's favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). In so doing, the court is guided by the now familiar standard requiring enough facts to state a claim that is plausible: if "the plaintiffs [can]not nudge[] their claims across the line from conceivable to plausible, their complaint must be dismissed." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In performing the Fed. R. Civ. P. 12(b)(6) plausibility analysis, exhibits attached to the complaint are properly considered part of the pleading. Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Where the parties have filed dueling dispositive motions, the standard of review does not buckle. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). The court takes up each motion seriatim, applying the appropriate standard to each.
Because the complaint requests declaratory relief, the Court must view Plaintiff's claims through the prism of the Declaratory Judgment Act. See generally 28 U.S.C. § 2201(a). The Declaratory Judgment Act provides that in a case of "actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration." Id. The Act, however, does not impose an "unflagging duty" upon courts to decide declaratory judgment actions nor does it grant an "entitlement" to parties to demand declaratory relief. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13,39 (1st Cir. 2006). Federal courts retain "substantial discretion" in deciding whether to grant declaratory remedies. Id.
Plaintiff alleges that he is an attorney in good standing, licensed to practice in Rhode Island, who represents claimants before the SSA. ECF No. 17 ¶¶ 1, 13. As established by the attachments to the amended complaint, Plaintiff has had an intermittent but longstanding (since at least 2012, and again in 2019) disagreement with the Commissioner regarding the need to have at least some of his clients fill in Form 1696, with particular focus on whether the claimants must sign in wet ink rather than electronically, which the Commissioner has insisted on. ECF Nos. 17; 17-1; 17-2. In the letters framing this controversy, Plaintiff has advised the Commissioner of his position that the regulation imposing the separate written notice requirement (20 C.F.R. § 404.1707)4 is inconsistent with two federal statutes: 5 U.S.C. § 500(b)5 and 42 U.S.C. § 406,6 so that these clients should not have been required to sign anything. ECFNo. 17 ¶ 14; ECF No. 17-1 at 3 (). In response, the Commissioner rejected Plaintiff's position, including his requested compromise that certain of his clients sign electronically, and recommended that Plaintiff "follow [the] rules."7 ECF No. 17-2 at 3.
Since its promulgation some forty years ago, the Commissioner has enforced 20 C.F.R. § 404.1707, the regulation relating to what the Commissioner requires from the claimant before authorizing SSA staff to communicate with an attorney regarding the intensely confidential affairs of that claimant, including to provide the attorney with access to the claimant's medical information. In the present, the Commissioner requires the claimant to sign and file Form SSA 1696 or a similar writing, designating the attorney as the "representative of your choice to represent you on any claim or asserted right under any of our programs." Instructions for Completing Form SSA-1696 (02-2020) UF at 1, https://www.ssa.gov/forms/ssa-1696.pdf (last visited Sept. 2, 2020). To put further flesh on the bones of the regulation, the Commissioner has implemented POMS8 GN 03910.040 - entitled "Appointment and Revocation of Appointment ofRepresentative." ECF No. 17 ¶ 11. This interpretation of the § 404.1707 claimant-signature requirement applies to the completion of the SSA Form 1696 and provides, in pertinent part:
[A] claimant's appointment . . . of a person as his or her representative must be in writing, and must be filed with SSA . . . . [T]he original document or notice of appointment retained by either party must contain the claimant's signature in ink.
ECF No. 17 ¶ 11.9 Without clearly explaining why, Plaintiff also references POMS DI 11005.056 - entitled "Signature Requirements for Form SSA-827" - which provides, in relevant part, that "[w]e require pen and ink signatures in any situation where we do not permit the Internet or attestation signature processes." ECF No. 17 ¶ 12. POMS DI 11005.056 appears to be entirely irrelevant to what Plaintiff has placed in issue in this case.10
For a remedy, Plaintiff asks the Court for a declaration that 20 C.F.R. § 404.1707, together with its interpreting POMS GN 03910.040, are "inconsistent...
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