UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FLORENCE WILSON NZONGOLA,
Plaintiff,
v.  Civil Action N0. 09-2220 (RJL)

MICHAEL J. ASTRUE, Commissioner,
United States Social Security Administration,

Defendant.

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MEMoRANDUM oPINIoN
(May  2012) [Dkt. #12]

This matter is before the Court on defendant’s motion to dismiss [Dkt. #12] and

plaintiff`s opposition thereto [Dkt. # 1 5]. For the reasons stated below, the defendant’s

motion to dismiss is GRANTED.
I. BACKGROUND
A. Plaintijj"s Allegalz'ons

Plaintiff filed a claim with the United States Social Security Administration
("SSA") for Supplemental Security Income ("SSI") benefits in October 1998, and her
application initially was denied. Compl. [Dkt. #l] at 1 (page numbers designated by
plaintiff). An Administrative Law Judge ("ALJ") issued a partially favorable decision,

id. at l-Z, and imposed two conditions to which plaintiff objected:

1. She be penalize[d] (3) years of the back pay payments.

2. She be [e]valuated . . . [b]efore payment commence[d] to
see [whether] a [r]epresentative payee was warranted to help
her manage her SSI [b]enefits.

Ia'. at 2-3. The SSA Commissioner since has done away with the representative payee,
but "still refuses too [sic] set aside #1 herein and award damages," ia’. at 3, such that
"plaintiff comes up short $14,0()0 in SSI . . . back payments," ia'. at 3-4. "These (3) three
years (back pay) is still a [sic] issue," z'd. at 4, and plaintiff brings this action against the
SSA to recover these lost benefits, see z`a’. at 7-8, covering the period from November
1998 through April 2001, z`d. at 9. Plaintiff also demands "[d]amages in the amount of

(7) seven million [d]ollars." Id.
B. Defena’ant ’s Representations

Plaintiff filed an application for SSI benefits on December 23, 1998, Declaration
of Earnest Baskerville ("Baskerville Decl."), Attach. to Mem. in Supp. of Def.’s Mot. to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) ("Def.’s Mem."), [Dkt. #12-2] ‘[l (3)(a), and
claimed to have "severe, disabling right shoulder pain and swelling and right ankle pain
and swelling beginning July 28, 1997," ALJ Decision, Ex. 1 to Baskerville Decl., at l.l

On September l7, 2002, an ALJ determined:

‘ Plaintiff’s claim initially was denied on February 10, 1999, and she requested

reconsideration which was denied on November 18, 1999. ALJ Decision, Ex. 1 to
Baskerville Decl., Sept. 17, 2002, at 1. Plaintiff timely requested a hearing which took
place on January 14, 2002, at which time plaintiff represented herself Ia'. At plaintiff’s
request, the decision was made based "entirely on . . . her physical impairments, without
consideration of any possible mental health problems." Ia’.

2

[B]ased on the application filed on December 23, 1998,
[plaintiff] is "disabled" under Section l6l4(a)(3)(A) of the
Social Security Act, beginning March 23, 2001, but not
before, and that [her] "disability" has continued at least
through the date of this decision.

The component of the Social Security Administration
responsible for authorizing [SSI] payments will advise
[plaintiff] regarding the non-disability requirements for these
payments, and if eligible, the amount and the months for
which payment will be made.

Because there is evidence that [plaintiff] may have difficulty
in managing her benefits and adhering to proper medical care,
the [ALJ] recommends that the component responsible for

effectuating this decision determine whether the appointment
of a representative payee is warranted.

ld_, ar 5.2
Plaintiff sought both administrative review of the decision by the Appeals Council,

Baskerville Decl. 11 (3)(b); see Request for Review of Hearing Decision/Order, Ex. 2 to
Baskerville Decl., and judicial review in this Court,3 Baskerville Decl. 11 (3)(0); see
Nzongola v. U.S. Soc. Sec. Aa’mz`n., N0. 03-1855, slip op. at 1-2 (D.D.C. Sept. 23, 2004).
"At the Appeals Council’s request, the court remanded the case . . . for further

administrative proceedings." Baskerville Decl. 11 (S)(d); see D.D.C. Order & Mem. Op.,

Ex. 4 to Baskerville Decl., at 1. Unaware that plaintiff appealed this Court’s decision to

2 An ALJ "hold[s] hearings on claims arising under Title ll and Title XVI of the
Social Security Act, as amended, when such hearing[s are] duly requested by a claimant
who is dissatisfied with the administrative determination of . . . her claim." Baskerville
Decl. 11 (l).

3 The Appeals Council "act[s] on requests for review of hearing decisions made by

[ALJs] and . . . either grant[s], den[ies], or dismiss[es] any such request." Baskerville
Decl. 11 (2).

the United States Court of Appeals for the District of Columbia Circuit, "the Appeals
Council remanded the case to an [ALJ]." Baskerville Decl. 11 (3)(e); see Order of
Appeals Council Remanding Case to ALJ, Ex. 5 to Baskerville Decl., at 1.4 A hearing
before the ALJ was set for April 6, 2006. Baskerville Decl. 11(3)(1`); see Notice of
Hearing, Ex. 6 to Baskerville Decl., at 1. Plaintiff did not appear, and the ALJ issued a
notice to show cause and explain her absence. Baskerville Decl. 11 (3)(1`); see Notice to
Show Cause for Failure to Appear, Ex. 7 to Baskerville Decl., at 1. "The Notice to Show
Cause was returned unclaimed by the U.S. Postal Service; therefore, on May 24, 2006,
the [ALJ] issued a Notice of Dismissal." Baskerville Decl. 11 (S)(f); see Order of
Dismissal, Ex. 8 to Baskerville Decl., at 1-2. Plaintiff appealed the dismissal to the
Appeals Council, Baskerville Decl. 11 (3)(g), but "[b]ased on the date of the [ALJ]’s
dismissal, it [did] not appear that [she] acted timely" in filing her appeal, Letter from
Office of Disability Adjudication and Review, Ex. 10 to Baskerville Decl., at 1.5 When
the SSA did not receive a timely response from plaintiff, the ALJ’s decision became the
final decision of the SSA Commissioner. Baskerville Decl.11(3)(g); see Letter from
Office of Disability Adjudication and Review, Ex. ll to Baskerville Decl., at 1.
Meanwhile, plaintiff filed this civil action on November 23, 2009. Only while

preparing a response to plaintiff"s complaint did the Appeals Council learn of the appeal

of this Court’s remand order to the D.C. Circuit. Baskerville Decl. 11 (3)(i). Upon the

4 The Appeals Council did not have jurisdiction over this matter while the appeal

was pending before the D.C. Circuit. See Baskerville Decl. 11 (3)(1).

5 The Office of Disability Adjudication and Review "administers the nationwide

hearings and appeals program for the Social Security Administration." Baskerville Decl.

11(1)-

D.C. Circuit’s "[m]andate granting . . . summary affirmance of the district court’s remand
order," z'd., on April 23, 2010, the Appeals Council issued an order vacating its August
26, 2005 remand order and May 24, 2006 dismissal, and remanded the matter to an ALJ
for further administrative action, ia’. 11(3)(k); see Notice of Order of Appeals Council
Remanding Case to ALJ, Ex. 12 to Baskerville Decl., Apr. 23, 2010, at 1.6 Defendant
now moves to dismiss the complaint for failure to state a claim upon which relief can be
granted.
II. DISCUSSION
When evaluating a motion to dismiss under Rule 12(b)(6), the court "must
construe the complaint in a light most favorable to the plaintiff" but "is limited to
considering the facts alleged in the complaint." Schmz`dt v. Shah, 696 F. Supp. 2d 44, 57-
58 (D.D.C. 2010). Importantly, "where, as here, the action is brought by a pro se
plaintiff, the Court must take particular care to construe the plaintiffs filings liberally."
la'. at 58 (citation omitted). However, despite this liberal construction, the plaintiff is still
required to provide "sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face."’ Ia’. at 57, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
Defendant moves to dismiss the complaint under Rule l2(b)(6) of the Federal

Rules of Civil Procedure. See Def.’s Mem. at 4-6. Plaintiff demands back pay and

6 As of April 26, 2010, the date of defendant’s supporting declaration, SSA’s
Hearing Office was to assign the case to an ALJ, and plaintiff was to be informed of the
time and place of the new hearing. See Baskerville Decl. 11 (3)(k). Whether or when
these events occurred is not stated in this record.

5

damages, see Compl. at 7-9, even though the actual defendant, the United States, is
immune from a suit for damages, see Def.’s Mem. at 5. Furthermore, defendant argues,
the statute under which plaintiff proceeds, 42 U.S.C. § 405(g), "contains no provisions

for the payment of back pay or damages in civil actions." Def.’s Mem. at 6. The Court

has reviewed plaintiffs opposition caref11lly, and aside from a renewed demand, see Mot.

in Opp’n of Def.’s Mot. to Dismiss [Dkt. #15] at 12 (page number designated by
plaintiff), she offers no argument or legal authority to support her claims for monetary
relief.

Plaintiff does not appear to challenge the amount of her benefits; instead, she
claims an entitlement to benefits as of the date she filed her application for SSI benef`its.
See Compl. at 1l. However, plaintiff has been deemed disabled as of March 23, 2001,
not before, see ALJ Decision, Ex. 1 to Baskerville Decl., at l, and nothing in the record
of this case supports the conclusion that plaintiff is entitled to any additional benefits or
to benefits covering any time period prior to March 23, 200l. Additionally, "42 U.S.C.
[§] 405(g) is only jurisdictional in nature and does not waive sovereign immunity or
confer a substantive right." De Lao v. Caly”ano, 560 F.2d 1384, 1390 (9th Cir. 1977)
(citation omitted). Nor does the statute "authorize money damages as a remedy for
wrongful denial of disability benefits." Petzold v. Astrue, N0. CIV-07-0325, 2008 WL
542958, at *6 n.l5 (W.D. Okla. Feb. 25, 2008) (citing Schweiker v. Chz`licky, 487 U.S.
412, 424 (1988)).

Furthermore, the complaint is subject to dismissal for lack of subject matter

jurisdiction. "An action brought against a federal agency, such as the SSA, is effectively

6

one brought against the United States." Kenney v. Bamharz‘, N0. SACV 05-426, 2006
WL 2092607, at *5 (C.D. Cal. July 26, 2006) (citation omitted). The United States is
immune from suit without its prior consent, unless it expressly has waived immunity and
consents to be sued. See, e.g., United States v. Mz'tchell, 445 U.S. 535, 538 (1980);
United States v. Sherwood, 312 U.S. 584, 586 (1941). The SSA enjoys the same
sovereign immunity as the United States, and, therefore, "the SSA cannot be sued absent
an express waiver of that immunity." Kenney, 2006 WL 2092607, at *5 (citation
omitted). Where, as here, the statute under which plaintiff proceeds "creates a right and
provides a specific remedy, that remedy is exclusive." Lloya' v. Shalala, N0. 92 Civ.
9454, 1993 WL 299291, at *1 (S.D.N.Y. Aug. 4, 1993) (citing Renegotz'ation Bd. v.
Bannercraft Clothz`ng Co., 415 U.S. l, 18 (1974) (other citation omitted)). Under

§ 405(g), then, plaintiff is entitled "to have the decision of the Secretary reviewed by a
federal district court, and thus such remedy is exclusive and bars a claim for damages
from that decision." Lloya', 1993 WL 299291, at *l (dismissing suit brought by plaintiff
seeking nullification of SSA determination that he was mentally disabled and monetary
damages); see Robinson v. See j) of Health & Human Servs., N0. 89-1199, 1989 WL
109432, at *1 (6th Cir. Sept. 22, 1989) (affirrning dismissal of claim for compensatory
and punitive damages for deprivations allegedly suffered after Social Security benefits
were wrongfully terminated because the claim "was not a review of an agency decision,
[and] the court lacked jurisdiction under [42 U.S.C.] § 405(g)" to entertain it). Thus, the

complaint fails to state a claim upon which relief can be granted.

III. CONCLUSION

For the reasons set forth above, defendant’s motion to dismiss [Dkt. #12] is
GRANTED. An Order consistent with this decision accompanies this Memorandum

Opinion.

T<Y<C»»~/

meridian J. LEoN
United States District Judge

