Ostroff v. State of Fla., Dept. of Health, No. 81-128-Civ-Oc.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: CHARLES R. SCOTT, Senior
• Citation: 554 F. Supp. 347
• Parties: Sylvan Earl OSTROFF, Plaintiff, v. The STATE OF FLORIDA, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, et al., and Mr. David Pingree, Secretary of H.R.S., Defendants.
• Decision Date: 31 January 1983
• Docket Number: No. 81-128-Civ-Oc.

554 F. Supp. 347

Sylvan Earl OSTROFF, Plaintiff,
v.
The STATE OF FLORIDA, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, et al., and Mr. David Pingree, Secretary of H.R.S., Defendants.

No. 81-128-Civ-Oc.

United States District Court, M.D. Florida, Ocala Division.

January 12, 1983.

As Amended January 31, 1983.

554 F. Supp. 348

COPYRIGHT MATERIAL OMITTED

554 F. Supp. 349

Sylvan Earl Ostroff, pro se

Chester G. Senf, Asst. Gen. Counsel, Dept. of Health & Rehabilitative Services, Jim Smith, Atty. Gen., State of Fla., Tallahassee, Fla., for defendants.

554 F. Supp. 350

ORDER OF DISMISSAL

CHARLES R. SCOTT, Senior District Judge.

This matter is before the Court on the first and second affirmative defenses of the defendants' answer to the plaintiff's pro se complaint, which the Court shall treat as a motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure; and the defendants' motion for summary judgment as to the jurisdictional defenses.¹ For reasons set forth below, the Court agrees with the defendants (hereinafter "the State") that it has no jurisdiction over this cause, and accordingly the plaintiff's complaint must be dismissed. The Court's resolution of this matter makes it unnecessary to consider numerous motions filed by the plaintiff and various additional defenses raised by the defendants.²

The plaintiff, Sylvan Earl Ostroff, brought this action against "The State of Florida, H.R.S., et al." seeking damages for the wrongful termination of his Social Security benefits over a 13-month period, between June 1, 1979 and July 14, 1980. According to the complaint, Ostroff began receiving Social Security disability benefits in October 1975 due to rheumatoid arthritis and degenerative spinal injuries connected with his military service. Prior to that time, Ostroff had been employed as an architectural draftsman. In March 1979, the defendant Florida Department of Health & Rehabilitative Services ("H.R.S."), acting through its Office of Disability Determinations ("O.D.D.") on behalf of the federal Social Security Administration ("S.S.A."),³

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reevaluated Ostroff's eligibility for benefits and concluded that he was no longer disabled. Consequently, on June 1, 1979, the S.S.A. terminated Ostroff's disability benefits. On July 14, 1980, however, Ostroff's benefits were reinstated retroactively as a result of a ruling by Social Security Administrative Law Judge Robert L. Osteen, on May 30, 1980, that Ostroff's disability and entitlement to benefits continued. Ostroff claims that H.R.S.'s erroneous determination of his noneligibility, and its failure to consider certain evidence which Ostroff submitted to show that he in fact was still disabled, forced Ostroff to live "in a state of abject deprivation" during the 13-month period when his benefits were cut off. Ostroff's complaint asks for compensatory damages of $50,000 and punitive damages of $100,000

In determining whether the Court has subject matter jurisdiction to hear a cause, the Court must read the plaintiff's pro se allegations in a liberal fashion, holding the complaint to less stringent standards than formal pleadings drafted by lawyers. Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir.1981); see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Furthermore, a complaint need not state the precise grounds upon which the court's jurisdiction is based, so long as the grounds are evident from the facts set forth in the complaint. Cf. Continental Casualty Co. v. Canadian Universal Insurance Co., 605 F.2d 1340 (5th Cir.1979), cert. denied 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

Ostroff asserts in his complaint that the Court has jurisdiction under § 205(g) of Title II of the Social Security Act, codified at 42 U.S.C. § 405(g). The State argues convincingly that if Ostroff's claim for damages is predicated solely upon alleged violations of the Social Security Act by H.R.S., the Court lacks subject matter jurisdiction.

On the one hand, the United States Supreme Court has established that the Social Security Act is not a statute securing "equal rights" or "civil rights" within the meaning of 28 U.S.C. § 1343(3) or (4), and thus a mere violation of the Social Security Act will not support jurisdiction under either provision. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 621-23, 99 S.Ct. 1905, 1917, 60 L.Ed.2d 508 (1979).

On the other hand, the Social Security Act does not itself confer a private cause of action. It is true that the provision invoked by the plaintiff, 42 U.S.C. § 405(g),⁴ affords an individual an avenue

554 F. Supp. 352

by which he may challenge a ruling by the Secretary of the Department of Health & Human Services ("H.H.S.") that he is not eligible for Social Security benefits. However, this is not what the plaintiff seeks in the instant action, and even if he were and were to prevail in the district court, the most he would be entitled to in "damages" is back payment of those benefits which were wrongfully withheld. 42 U.S.C. § 405(i). Here, the Secretary has already ruled in Ostroff's favor, reinstating his benefits retroactively,⁵ but Ostroff now seeks further vindication by suing for consequential and punitive damages. Section 405(g) does not contemplate such an action and affords no such relief.⁶

Furthermore, § 405(g) only authorizes suits against the Secretary of H.H.S.;⁷ no other agency or official of any government —federal, state or local—is a proper party defendant. See Ro-Ane v. Mathews, 476 F.Supp. 1089, 1093 (M.D.Cal.1977), aff'd 604 F.2d 37 (9th Cir.1979).

Moreover, 42 U.S.C. § 405(h) prohibits any non-§ 405(g) action against the United States, the Secretary, or any officer or employee thereof from being brought under 28 U.S.C. § 1331 or § 1346 to recover on any claim arising under Title II of the Social Security Act. See Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Although Ostroff has brought this action against various state defendants, at the time of the events in question 42 U.S.C. § 421(a) provided that any disability determination made by a state agency pursuant to an agreement with the Secretary "shall be the determination of the Secretary" for

554 F. Supp. 353

purposes of Title II.⁸ Hence, Ostroff's claim against the state defendants is merely a disguised dispute with the Secretary and is barred by § 405(h). Ellis v. Blum, 643 F.2d 68, 76 (2d Cir.1981).⁹

Finally, the Court notes that even if the Social Security Act did provide a basis of jurisdiction for this cause, the Eleventh Amendment, discussed below, would preclude any relief in the form of money damages. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Houston Welfare Rights Org., Inc. v. Vowell, 555 F.2d 1219, 1227 (5th Cir.1977), aff'd sub nom., Chapman v. Houston Welfare Rights Org., supra.

Because jurisdiction unquestionably does not lie if Ostroff's claim is based on the Social Security Act alone, the state suggests that the Court assume the plaintiff is alleging a Fourteenth Amendment violation as a basis of jurisdiction and 42 U.S.C. § 1983 as a basis of relief. The defendants, however, although a state agency and a state official, were not acting under color of state law, but were acting under federal authority. Hence, any Civil Rights claim Ostroff might have against the defendants cannot be brought under § 1983, but must be brought directly under the Due Process Clause of the Fifth Amendment, pursuant to the doctrine of Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Ellis v. Blum, 643 F.2d at 83-84. In any event, courts have, for the most part, applied § 1983 law to Bivens-type cases.¹⁰ Rodriguez v. Ritchey, 539 F.2d 394, 399 (5th Cir.1976), modified upon reh'g en banc, 556 F.2d 1185 (1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978).

It is by no means evident from the complaint, however, that Ostroff is alleging a constitutional violation. Although Ostroff does assert, in later court filings, that his "Civil Rights" were violated, he there refers to substantive "rights" such as the right to subsistence, lodging and medical care. (See e.g., "Rebuttal", filed March 29, 1982, at p. 3; "Motion for Hearing and Demand for Jury Trial", filed June 9, 1982, at p. 2; "Rebuttal and Argument in Support", filed September 18, 1982, at p. 3-6.) These are not Constitutional rights. To the extent that they are granted to disability beneficiaries under Title II of the Social Security Act, they are purely statutory entitlements. See Harris v. McRae, 448

554 F. Supp. 354

U.S. 297, 314-18, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980); Dandridge v. Williams, 397 U.S. 471, 484-86, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Furthermore, Chapman v. Houston Welfare Rights Org., supra, specifically held that Social Security entitlements are not "civil rights". The clear inference is that the mere deprivation of Social Security benefits will not support a Bivens-type action

It appears to the Court that the only possible constitutional claim the plaintiff might have is that the defendants deprived him of procedural due process.¹¹ Although the Court, after thoroughly reviewing Mr. Ostroff's disability file, believes that his chances of proving such a claim are minimal at best,¹² the Court will give him the benefit of the doubt for jurisdictional purposes.

Nonetheless, the State correctly points out that even on this basis, the Court cannot entertain Ostroff's suit for money damages against the defendants, due to the State's sovereign immunity under the Eleventh Amendment to the United States Constitution.¹³ It is firmly established that the Eleventh Amendment immunizes unconsenting states from private suits in federal

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