Harris v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MICHAEL D. HARRIS,

Plaintiff,

v. Case No.: 2:20-cv-391-SPC-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

REPORT AND RECOMMENDATION

Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s

Complaint. (Doc. 10). When Plaintiff, proceeding pro se, failed to timely respond to

the motion, the Undersigned entered an Order to show cause directing Plaintiff to

show cause as to why he failed to respond to Defendant’s motion and to file a

written response to the motion. (Doc. 14). The Order to show cause warned

Plaintiff that failure to comply fully with the Order would result in the Court

deeming the motion unopposed and/or dismissal of the action for failure to

prosecute. (Id.). In response, Plaintiff filed a two-page Notice of Filing, which the

Undersigned construes as a response to the Order to show cause. (Doc. 16). Thus,

the motion is ripe for review. For the reasons set forth below, the Undersigned

recommends that Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 10) be

GRANTED.

I. Background

The nature of the arguments raised in the motion necessitates a lengthy

explanation of the procedural background of the action and its 2019 companion.

On November 14, 2019, Plaintiff filed a Complaint in this Court against the

Social Security Administration (“SSA”), seeking the Court’s assistance in obtaining

$11,315.20 (“reimbursement award”). See Harris v. Comm’r of Soc. Sec., No. 2:19-cv-

00823-NPM, Doc. 1 (M.D. Fla. Nov. 14, 2019).1 More precisely, an administrative

law judge (“ALJ”) found Plaintiff to be entitled to $11,315.20 in a reimbursement

award because the ALJ determined that after Plaintiff had received $27,283.80 in

overpayments, Plaintiff repaid too much towards his overpayments. (See Doc. 10-1).

Additionally, Plaintiff sought a $1,000.00 per day penalty for each day the SSA failed

to pay the reimbursement award by a date certain. See Harris, No. 2:19-cv-00823-

NPM, Doc. 1. On motion by Defendant, Harris, No. 2:19-cv-00823-NPM, Doc. 10,

the action was stayed to allow the parties to confer and resolve the matter, Harris,

No. 2:19-cv-00823-NPM, Doc. 11. Because Plaintiff subsequently received the

reimbursement award, see Harris, No. 2:19-cv-00823-NPM, Doc. 14, the parties

sought to dismiss the action on April 13, 2020, Harris, No. 2:19-cv-00823-NPM,

Doc. 16. On April 13, 2020, the Court granted the Consent Motion to Dismiss,

Harris, No. 2:19-cv-00823-NPM, Doc. 17, and judgment was entered the same day,

1 Hereinafter, the Undersigned cites to the prior action as Harris, No. 2:19-cv-00823-

NPM followed by the appropriate docket citation. Unless preceded by Harris, No.

2:19-cv-00823-NPM, all docket citations refer to the instant action.

Harris, No. 2:19-cv-00823-NPM, Doc. 18. On April 24, 2020, the parties jointly

moved the Court to award Plaintiff the $400.00 filing fee, under the Equal Access to

Justice Act (“EAJA”), 28 U.S.C. § 2412, Harris, No. 2:19-cv-00823-NPM, Doc. 19,

and the Court granted the motion on April 27, 2020, Harris, No. 2:19-cv-00823-

NPM, Doc. 20.

A month later, on May 28, 2020, Plaintiff filed the instant action against the

SSA, alleging that he never received the $400.00 filing fee awarded in the prior action

and seeking the following damages: (1) $267,500.00 in damages for unnamed ALJs’

“bad faith;” (2) $100,000.00 in damages to investigate the SSA’s ALJs; (3) an

additional reimbursement award, equating to $214.80 more than the ALJ previously

awarded; (4) the $400.00 filing fee for the prior litigation; (5) the $400.00 filing fee for

the instant litigation; and (6) an additional $300.00 in expenses associated with the

litigations.2 (See Doc. 1). For the ease of discussion, the Undersigned refers these

requested damages as claims, despite Plaintiff’s failure to enumerate specified claims.

(See id.). In total, Plaintiff seeks an award of $368,814.80 ($287,500.00 +

$100,000.00 + $214.80 +$400.00 + $400.00 + $300.00 = $368,814.80). (Id. at ¶ 13).3

2 It is unclear to the Undersigned whether the additional $300.00 in expenses

discussed in Plaintiff’s Complaint is associated with the instant litigation or the prior

litigation. (See Doc. 1 at ¶ 11). Because the motion has been referred to the

Undersigned for a Report and Recommendation, the Undersigned considers both

scenarios for the benefit of the presiding United States District Judge.

3 Plaintiff’s Complaint calculates his requested damages as $368,814.50. (See Doc. 1

at ¶ 13). As noted above, the correct calculation is $368,814.80. The Undersigned

construes Plaintiff’s calculation as either a typographical or mathematical error and

considers the requested damages as $368,814.80.

Having been duly served with the Complaint, (see Docs. 6-8), Defendant filed

the instant motion, requesting that the Court dismiss this action for lack subject

matter jurisdiction, (see generally Doc. 10). In support, Defendant asserts several

arguments: (1) to the extent Plaintiff seeks to bring this action on behalf of others,

Plaintiff cannot represent other parties, (id. at 6-7); (2) to the extent Plaintiff seeks to

increase the reimbursement award, the Court should dismiss the Complaint on either

the basis of res judicata or failure to exhaust, (id. at 7-12); (3) to the extent Plaintiff

seeks monetary damages, the Court lacks jurisdiction to award such damages, (id. at

12-16); (4) to the extent Plaintiff seeks a Court Order authorizing the investigation of

the SSA, the Court lacks the authority to order or authorize such an investigation,

(id. at 16-17); and (5) to the extent Plaintiff seeks claims related to costs or expenses

of this action or his prior action, the issue is moot or otherwise barred by res judicata,

(id. at 17-18).

In response, Plaintiff filed a Notice of Filing, stating that he does not want the

action dismissed and that he has advised defense counsel of the same. (See Doc. 16

at 1-2). Additionally, Plaintiff notes that he has requested paperwork from

Defendant but has not received it. (Id. at 2). Finally, Plaintiff maintains that he

would like the case set for trial as soon as possible. (Id.). Plaintiff does not directly

address Defendant’s arguments. (See id. at 1-2).

The Undersigned considers each argument in turn below, beginning with the

legal standards governing motions to dismiss for lack of subject matter jurisdiction

before turning to specific grounds for dismissal raised.

II. Legal Standard

Federal courts are courts of limited jurisdiction. “[B]ecause a federal court is

powerless to act beyond its statutory grant of subject matter jurisdiction, a court must

zealously insure that jurisdiction exists over a case, and should itself raise the

question of subject matter jurisdiction at any point in the litigation where a doubt

about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

The burden of establishing the existence of federal subject matter jurisdiction lies

with the party that brings the claim. Sweet Pea Marine, Ltd. V. APJ Marine, Inc., 411

F.3d 1242, 1248 n.2 (11th Cir. 2005).

A motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ.

P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint.

McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.

2007); Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). A facial attack on a

complaint “require[s] the court merely to look and see if [the] plaintiff has

sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his

complaint are taken as true for the purposes of the motion.” McElmurray, 501 F.3d

at 1251 (alterations in original) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529

(11th Cir. 1990)). In that situation, “the plaintiff is left with safeguards similar to

those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is

raised,” and the Court must consider the allegations in the plaintiff’s complaint as

true. Id. (citing Williamson, 645 F.2d at 412). If a defendant’s attack on a complaint

challenges subject matter jurisdiction in fact, the Court may consider facts outside

the pleadings and is “free to weigh the evidence and satisfy itself as to the existence

of its power to hear the case.” Lawrence, 919 F.2d at 1529 (quoting Williamson, 645

F.2d at 412).

Here, Defendant appears to challenge the subject matter jurisdiction in fact,

and the Undersigned, therefore, weighs the evidence to determine whether it has

power to hear the claims in the Complaint. See id.

III. Analysis

A. Plaintiff Does Not Bring any Claims on Behalf of Others.

Defendant notes that Plaintiff requests relief on behalf of other parties. (Doc.

10 at 6-7). Specifically, Defendant asserts that Plaintiff (1) seeks a monetary award

to purchase a motor home that Plaintiff will share with others, (2) seeks a monetary

award to investigate the SSA on behalf of himself personally and others, and (3)

intends to present evidence on behalf of another SSA claimant. (See id.).

Nevertheless, Defendant argues that Plaintiff is representing himself pro se and has

“failed to establish that he has the capacity to represent these other parties before this

Court.” (See id.).

Upon review of Plaintiff’s Complaint, the Undersigned finds that Plaintiff

does not appear to be asserting any claims on behalf of another individual. (See Doc.

1). Rather, Plaintiff asserts claims and seeks damages on his own behalf while also

highlighting that others may benefit from any award. (See, e.g., id. at ¶¶ 5-6). The

Undersigned finds that the fact that others may benefit if Plaintiff is awarded

damages does not rise to the level of unauthorized practice of law. Accordingly, the

Undersigned finds Defendant’s motion moot to the extent it requests that this Court

“dismiss any claim Plaintiff has brought on behalf of or seeking damages for

individuals or entities beyond himself.” (See Doc. 10 at 7).

Nevertheless, the Undersigned recommends that the presiding United States

District Judge warn Plaintiff against asserting claims or filing motions on behalf of

other persons. See Harvey v. Seminole Cty., Sheriff, No. 6:16-cv-56-Orl-41TBS, 2016

WL 922548, at *1 (M.D. Fla. Feb. 4, 2016), report and recommendation adopted sub

nom. Harvey v. Seminole Cty., No. 6:16-cv-56-Orl-41TBS, 2016 WL 916560 (M.D. Fla.

Mar. 10, 2016) (collecting cases to support the proposition that a non-attorney pro se

plaintiff may not sign pleadings, motions, or other papers on behalf of another pro se

plaintiff); see also United States v. Daleiden, No. 8:19-cv-3047-T-60CPT, 2020 WL

3073937, at *3 (M.D. Fla. June 10, 2020) (warning non-attorney pro se plaintiff that

filing papers on behalf of other persons or entities may constitute the unauthorized

practice of law).

B. Plaintiff’s Claim for an Additional $214.80

Reimbursement Award Is Due to Be Dismissed.

Defendant next highlights that “[t]he main substance of Plaintiff’s personal

litigation against SSA involves an overpayment reimbursement,” which Defendant

asserts was litigated and resolved in the Plaintiff’s prior civil action. (See Doc. 10 at

7-8). As a result, Defendant argues that Plaintiff’s current action is due to be

dismissed based on the principle of res judicata. (See id. at 8-9). Specifically,

Defendant argues that: (1) the Court issued final judgment in the prior action; (2) the

Court had jurisdiction over Plaintiff’s previously raised claims; (3) both Plaintiff and

the SSA were parties to the prior litigation; and (4) Plaintiff now raises the same

claims raised in the prior litigation. (Id. at 9). As to the fourth element, Defendant

clarifies that “[b]ecause Plaintiff’s prior action involved determining the amount of

benefits the agency should repay Plaintiff based on the ALJ’s decision on the issue of

an excessive agency overpayment collection, any issue about whether the agency

owed Plaintiff further amounts on that same basis clearly involves the same primary

rights and duties.” (Id.). Defendant contends that because the issue existed at the

time of the prior action, Plaintiff could have challenged the reimbursement amount

authorized by the ALJ in the prior action and, therefore, res judicata bars Plaintiff’s

claim with regard to the amount of any benefits he is owed. (Id.).

In the alternative, Defendant argues that the claim is due to be dismissed

because Plaintiff “has failed to exhaust his administrative remedies on the

overpayment reimbursement issue he raises before this Court.” (Id.). Specifically,

Defendant maintains that Plaintiff had sixty-five days from receiving the ALJ’s

overpayment reimbursement decision to appeal the decision to the Appeals Council

but that Plaintiff failed to appeal. (See id. (citations omitted)). Defendant essentially

argues that because Plaintiff did not appeal the ALJ’s decision, Plaintiff failed to

timely comply with the requirements of 42 U.S.C. § 405(g). (See id. at 10-12).

As to Defendant’s argument that Plaintiff’s claim for an additional $214.80

reimbursement award is barred by the doctrine of res judicata, (see id. at 7-9), the

Undersigned agrees. As the Eleventh Circuit has observed: “[t]he purpose behind

the doctrine of res judicata is that the ‘full and fair opportunity to litigate protects [a

party’s] adversaries from the expense and vexation attending multiple lawsuits,

conserves judicial resources, and fosters reliance on judicial action by minimizing the

possibility of inconsistent decisions.’” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235,

1238 (11th Cir. 1990) (second alteration in original) (quoting Montana v. United States,

440 U.S. 147, (1979)). Although not addressed by Defendant, the doctrine of “[r]es

judicata generally refers to two separate concepts: claim preclusion and issue

preclusion (also referred to as collateral estoppel).” Clements v. Apax Partners LLP,

No. 2:20-cv-310-FtM-29MRM, 2021 WL 982740, at *4 (M.D. Fla. Mar. 16, 2021),

reconsideration denied, No. 2:20-cv-310-FtM-JES-MRM, 2021 WL 1851684 (M.D.

Fla. May 10, 2021) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77

n.1 (1984)).

Here, Defendant appears to assert that the doctrine of claim preclusion

applies. (See Doc. 10 at 7-8). Claim preclusion “bars the parties to an action from

litigating claims that were or could have been litigated in a prior action between the

same parties.” Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013). A

claim is barred by the doctrine of claim preclusion, if: “(1) there is a final judgment

on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3)

the parties, or those in privity with them, are identical in both suits; and (4) the same

cause of action is involved in both cases.” Griswold v. County of Hillsborough, 598 F.3d

1289, 1292 (11th Cir. 2010) (quoting Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235,

1238 (11th Cir. 1990)). “If a case arises out of the same nucleus of operative fact, or

is based on the same factual predicate as a former action, then the two cases present

the same claim or cause of action for purposes of res judicata.” Schwab v. Huntington

Nat. Bank, No. 2:12-cv-315-FtM-38, 2013 WL 6182127, at *6 (M.D. Fla. Nov. 25,

2013) (citing Home Depot U.S.A., Inc. v. U.S. Fire Ins. Co., 299 F. App’x 892, 896 (11th

Cir. 2008)).

Here, the first three elements are easily met. First, the Court entered final

judgment in the previous litigation. See Harris, No. 2:19-cv-00823-NPM, Doc. 18.4

Second, the Court was a court of competent jurisdiction to the claims raised in the

prior litigation. See generally Harris, No. 2:19-cv-00823-NPM. Finally, the parties –

Mr. Michael D. Harris and the Commissioner of the Social Security – are the same

in both cases. Compare Harris, No. 2:19-cv-00823-NPM, Doc. 1, with (Doc. 1). Thus,

the only element of claim preclusion at issue is whether both cases involve the same

cause of action.

4 Although judgment was entered pursuant to a Rule 41(a)(1)(A)(ii) stipulation of

dismissal, titled as a Consent Motion to Dismiss, res judicata nonetheless applies.

See Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004) (“In

the absence of a settlement agreement [providing otherwise], a judgment of dismissal

pursuant to Rule 41 should be given the same res judicata effect as any other

judgment.”).

To satisfy the fourth element, “[t]he two claims must arise out of the same

transaction or series of transactions and should rely on the same facts or evidence.”

Schwab, 2013 WL 6182127, at *7 (citing Wallis v. Justice Oaks II, Ltd., 898 F.2d 1544,

1551 (11th Cir. 1990); Aquatherm Indus., Inc. v. Fla. Power & Light Co., 84 F.3d 1388,

1394 (11th Cir. 1996)). The Undersigned finds this element satisfied as to the claim

for an additional reimbursement award. The Eleventh Circuit has observed that

“absolutely identical cause of actions are not required for res judicata to apply.”

Home Depot U.S.A., 299 F. App’x at 896. Rather, the operative question is whether

the new claim “arises out of the same nucleus of operative fact, or is based upon the

same factual predicate, as a former action.” Id.; see also Schwab, 2013 WL 6182127,

at *7. As a practical example, in Ragsdale v. Rubbermaid, Inc., the Eleventh Circuit

found that the plaintiff’s retaliation claim – alleged in a second action – was the same

as his prior qui tam claim for the purposes of res judicata because both claims existed

at the time the original complaint was filed and both claims arose out of a common

nucleus of operative fact. See Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1240 (11th

Cir. 1999). The Eleventh Circuit specified that although the form of the actions were

distinct, “both claims grew out of a common nucleus of operative fact: [the

defendant] engaged in illegal conduct and [the plaintiff’s] discovery of that conduct

led to his discharge, a series of transactions closely related in time, space, and

origin.” Id.

Here, the Undersigned finds that, as in Ragsdale, the two claims – though

distinct – are the same cause of action for the purposes of res judicata. To that end,

while in form the actions are distinct – the previous seeking assistance in obtaining

the award and the current seeking judicial review of the award – both arise out of the

issuance of a reimbursement award. Compare Harris, No. 2:19-cv-00823-NPM, Doc.

1, with (Doc. 1). Additionally, both existed at the time of the filing of the initial

Complaint. As such, the Undersigned finds that the claims are the same for the

purposes of res judicata. See Ragsdale v. Rubbermaid, Inc., 193 F.3d at 1240.

Accordingly, the Undersigned finds that Plaintiff is barred from bringing a claim for

judicial review of his reimbursement award.

Furthermore, the Undersigned is also persuaded by Defendant’s alternative

argument that Plaintiff’s claim for an additional $214.80 reimbursement award

should be dismissed for Plaintiff’s failure to exhaust his administrative remedies. (See

Doc. 10 at 9-12). To that end, the Undersigned finds a brief review of Congress’

limited waiver of sovereign immunity in the context of Social Security appeals

instructive.

The United States “‘is immune from suit save as it consents to be sued,’ and

Congress alone determines how and when the United States may be sued for judicial

review of administrative orders and judgments.” Jackson v. Astrue, 506 F.3d 1349,

1352-53 (11th Cir. 2007) (quoting Lehman v. Nakshian, 453 U.S. 156, 160 (1981)). “If

sovereign immunity applies, a court lacks subject matter jurisdiction to consider a

claim.” Foster Logging, Inc. v. United States, 973 F.3d 1152, 1157 n.3 (11th Cir. 2020)

(citing Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015)).

Pursuant to 42 U.S.C. § 405(g), Congress partially waived sovereign immunity

and gave courts the authority to review, modify, or reverse the Commissioner’s

decisions. Jackson, 506 F.3d. at 1353. The remedies enumerated in the statute are

the sole source of federal jurisdiction in social security disability cases. Id. (citing 42

U.S.C. § 405(h) (“No findings of fact or decision of the Commissioner of Social

Security shall be reviewed by any person, tribunal, or governmental agency except as

herein provided.”)).

Section 405(g) provides in pertinent part as follows:

Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to

which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil

action commenced within sixty days after the mailing to

him of notice of such decision or within such further time

as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g). Thus, judicial review is limited to review of a final decision

made by the Commissioner after a hearing. See Bello v. Comm’r of Soc. Sec., 460 F.

App’x 837, 839 (11th Cir. 2012) (citing 42 U.S. C. § 405(g)). “On its face [§] 405(g)

thus bars judicial review of any denial of a claim of disability benefits until after a

‘final decision’ by the Secretary after a ‘hearing.’” Mathews v. Eldridge, 424 U.S. 319,

328 (1976). Implicit in this requirement is:

the principle that this condition consists of two elements,

only one of which is purely “jurisdictional” in the sense that

it cannot be “waived” by the Secretary in a particular case.

The waivable element is the requirement that the

administrative remedies prescribed by the Secretary be

exhausted. The nonwaivable element is the requirement

that a claim for benefits shall have been presented to the

Secretary. Absent such a claim there can be no “decision”

of any type. And some decision by the Secretary is clearly

required by the statute.

Id. If the non-waivable element is satisfied, then the Court must consider whether a

claimant received a “sufficiently” “final” decision with respect to his “constitutional

claim to satisfy the statutory exhaustion.” Id. at 330. The Commissioner may waive

the exhaustion requirements “if he satisfies himself, at any stage of the administrative

process, that no further review is warranted either because the internal needs of the

agency are fulfilled or because the relief that is sought is beyond his power to

confer.” Id.; see also Counts v. Comm’r of Soc. Sec., No. 6:09-cv-2157-Orl, 2010 WL

5174498, at *5 (M.D. Fla. Dec. 15, 2010).

The Social Security Act does not define “final decision,” “instead leaving it to

the Commissioner to give meaning to that term through regulations.” Bello, 460 F.

App’x at 839 (citing Sims v. Apfel, 530 U.S. 103, 106 (2000)). Under the

Commissioner’s regulations, to satisfy the requirements of finality of an social

security claim, a claimant must pursue all of the four-step administrative review

process including: (1) an initial determination; (2) a reconsideration determination;

(3) a hearing decision by an ALJ; and (4) a discretionary review by the Appeals

Council. See McDonnell v. Comm’r of Soc. Sec., No. 5:21-cv-315-Oc-GKS-PRL, 2021

WL 4267861, at *3 (M.D. Fla. Aug. 12, 2021), report and recommendation adopted, No.

5:21-cv-315-Oc-GKS-PRL, 2021 WL 4263473 (M.D. Fla. Sept. 20, 2021) (citations

omitted). Importantly, to appeal an ALJ’s decision to the Appeals Council, a

claimant must file an appeal sixty days from the date of receipt of the ALJ’s decision.

See 20 C.F.R. § 404.968(a)(1). The date of receipt is presumed to be five days after

the date of the notice, unless there is a showing to the contrary. 20 C.F.R. § 404.901.

If a claimant does not pursue his rights through the Appeals Council after a hearing

decision, that hearing decision becomes final and binding and there is no final

decision for the purpose of judicial review. See 20 C.F.R. § 404.981; Sims, 530 U.S.

at 107; Bowen v. City of New York, 476 U.S. 467, 472 (1986).

Here, Plaintiff’s Notice of Decision – Partially Favorable is dated March 19,

2019. (Doc. 10-1 at 1). Accordingly, receipt is presumed five days later, on March

24, 2019. See 20 C.F.R. § 422.210(c). There is no indication in the record before the

Court that Plaintiff did not receive the Notice of Decision – Partially Favorable

within the five-day period and Plaintiff did not raise this argument. (See Doc. 1, 16).

Thus, under the sixty-day requirement, Plaintiff was required to have appealed the

decision to the Appeals Council no later than May 23, 2019. However, there is no

evidence that Plaintiff appealed the decision to the Appeals Council. Defendant

specifically argues that Plaintiff failed to appeal, (see Doc. 10 at 10), and this assertion

is uncontroverted by Plaintiff, (see Doc. 16).5 Accordingly, the Undersigned finds

that Plaintiff failed to exhaust his administrative remedies as to the amount of the

5 Even had Plaintiff appealed the ALJ’s decision, the result would remain the same.

Plaintiff has provided no evidence and proffered no argument that this Complaint

was filed within sixty-five days of his receipt of any decision by the Appeals Council.

See 42 U.S.C. § 405(g), 20 C.F.R. § 422.210(c). Accordingly, the claim would fall

outside of Congress’ sovereign immunity waiver and the Complaint would be due to

be dismissed.

reimbursement award. As a result, the Court is without jurisdiction to consider this

issue.

In sum, the Undersigned finds that Plaintiff’s claim for an additional $214.80

reimbursement award is due to be dismissed because it is barred by the doctrine of

res judicata and, alternatively, Plaintiff failed to exhaust his administrative remedies.

The Undersigned, therefore, recommends that the presiding United States District

Judge grant the motion to dismiss as to this this claim.

C. Plaintiff’s Claim for $267,500.00 in Monetary

Damages Is Due to Be Dismissed.

Next, as to Plaintiff’s claims for $267,500.00 in damages for the stress caused

by the SSA and $100,00.00 in damages to prepay Plaintiff and “his team members”

to investigate the SSA, (see Doc. 1 at ¶¶ 5-6), Defendant argues that the Court lacks

jurisdiction to award monetary damages, (Doc. 10 at 12). In support, Defendant

highlights that “[a]bsent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” (Id. (alteration in original) (quoting Fed.

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994))). Thus, Defendant maintains

that “Plaintiff’s request for damages is barred unless he can identify some waiver that

might allow the Court to entertain the request” and that Plaintiff has failed to do so.

(See id. at 12-13). Moreover, Defendant argues that the waiver of immunity included

in the Social Security Act is limited and does not include a provision for monetary

damages arising from the wrongful denial of benefits or the recovery of consequential

damages. (See id. at 13 (citations omitted)). Thus, Defendant argues that the Court

does not have subject matter jurisdiction over Plaintiff’s request for general damages.

(Id. at 13-14 (citing 42 U.S.C. § 405(h); Fed. R. Civ. P. 12(b)(1))).

Additionally, while Defendant notes that Congress has also partially waived

the Government’s immunity under the Federal Tort Claims Act (“FTCA”),

Defendant asserts that the intent of the FTCA “is to provide redress against the

federal government for ordinary torts recognized by state law.” (Id. at 14 (citations

omitted)). Defendant argues that Plaintiff has not identified any negligence under

Florida law. (Id.). Additionally, Defendant essentially contends that Plaintiff has

not otherwise met the exhaustion requirements under the FTCA, including

presentation of a claim to the appropriate federal agency and receipt of a denial of

the claim by the agency, and the Court, therefore, does not have subject matter

jurisdiction over the claims. (See id. at 14-16 (citations omitted)).

As noted above, the United States “‘is immune from suit save as it consents to

be sued,’ and Congress alone determines how and when the United States may be

sued for judicial review of administrative orders and judgments.” Jackson v. Astrue,

506 F.3d 1349, 1352-53 (11th Cir. 2007) (quoting Lehman v. Nakshian, 453 U.S. 156,

160 (1981)). Pursuant to 42 U.S.C. § 405(g), Congress waived sovereign immunity

and gave courts the authority to review, modify, or reverse the Commissioner’s

decisions. Id. at 1353. The remedies enumerated in the statute are the sole source of

federal jurisdiction in social security disability cases. Id. (citing 42 U.S.C. § 405(h)

(“No findings of fact or decision of the Commissioner of Social Security shall be

reviewed by any person, tribunal, or governmental agency except as herein

provided.”)).

Section 405(g) provides in pertinent part as follows:

Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to

which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil

action commenced within sixty days after the mailing to

him of notice of such decision or within such further time

as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g).

This limited waiver does not allow a plaintiff to sue the Commissioner of the

SSA for damages made in connection with the Commissioner’s decision to deny

social security benefits. See Williams v. Comm’r of Soc. Sec., No. 8:20-cv-3096-T-CEH-

AAS, 2021 WL 1165593, at *3 (M.D. Fla. Mar. 8, 2021), report and recommendation

adopted, No. 8:20-cv-3096-T-CEH-AAS, 2021 WL 1165224 (M.D. Fla. Mar. 26,

2021). Accordingly, the Social Security Act does not authorize the Court to exercise

jurisdiction over this claim. See id.

Moreover, to the extent Plaintiff’s Complaint can be construed as asserting a

Bivens action––which allows an individual to sue a federal official in his or her

individual capacity for violating the plaintiff’s constitutional rights––against the

Commissioner, the Undersigned finds that such a claim cannot be brought as a

remedy for an allegedly insufficient reimbursement of social security benefits. See id.

(citing Bivens v. Six Unknown Named Agents, 403 U.S. 388 397 (1971)). As the

Supreme Court has found, the Social Security Act “makes no provision for remedies

in money damages against officials responsible for unconstitutional conduct that

leads to the wrongful denial of benefits.” Schweiker v. Chilicky, 487 U.S. 412, 424

(1988); see also Horne v. Soc. Sec. Admin., 359 F. App’x 138, 143 (11th Cir. 2010);

Williams, 2021 WL 1165593, at *3, report and recommendation adopted, 2021 WL

1165224. Accordingly, the Court lacks jurisdiction over any Bivens action brought

against the Commissioner. See id.

Even if Plaintiff seeks to bring his claim under the FTCA, the Undersigned

finds that the Complaint is due to be dismissed. Like the Social Security Act, the

FTCA partially waives the government’s sovereign immunity. See 28 U.S.C. §

1346(b)(1). The plain language of the Social Security Act, however, prevents a

claimant from seeking damages under the FTCA in connection with any claim under

the Social Security Act. See Williams, 2021 WL 1165593, at *3, report and

recommendation adopted, 2021 WL 1165224 (citing Shalala v. Illinois Council on Long

Term Care, Inc., 529 U.S. 1, 10 (2000)); see also 42 U.S.C. § 405(h) (“No action against

the United States, the Commissioner of Social Security, or any officer or employee

thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any

claim arising under this subchapter.”). Thus, when a plaintiff’s claim arises under

the Social Security Act, the Social Security Act excludes FTCA jurisdiction. See

Williams, 2021 WL 1165593, at *3, report and recommendation adopted, 2021 WL

1165224 (citing Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 10

(2000); Raczkowski v. United States, 138 F. App’x 174, 175 (11th Cir. 2005)).

Accordingly, the Undersigned finds that to the extent Plaintiff’s claim for monetary

damages, construed as being brought under the FTCA, arises from the partial denial

of his reimbursement award, the Court is without jurisdiction to hear the claim. See

id.

To the extent Plaintiff’s claim for monetary damages, construed as being

brought under the FTCA, does not arise from the partial denial of his reimbursement

award, the Undersigned finds that Plaintiff has not exhausted his administrative

remedies under the FTCA. “In addition to numerous exceptions and limitations to

bringing a lawsuit under the FTCA, exhaustion of administrative remedies is a non-

waivable jurisdictional prerequisite to invoking a district court’s subject matter

jurisdiction.” Willoughby v. Colvin, No. 6:13-cv-1365-Orl-40KRS, 2014 WL 5038550,

at *5 (M.D. Fla. Sept. 30, 2014) (citing McNeil v. United States, 508 U.S. 106, 112

(1993)). These administrative remedies include presenting the claim to the

appropriate federal agency and receiving a denial of the claim from that agency. See

Pompey v. Coad, 314 F. App’x 176, 179 (11th Cir. 2008) (citations omitted); see also 28

U.S.C. § 2675(a). Moreover, it is the plaintiff’s burden to show that he exhausted his

administrative remedies. See Lykins v. Pointer, Inc., 725 F.2d 645, 647 (11th Cir. 1984)

(“To satisfy the jurisdictional requirements ‘[t]here must be proof of timely written

notice of the claim to the appropriate agency. . . .’”) (alteration in original); see also

Hinson v. Palm Beach Cty. Sheriff’s Off., No. 13-81342-CIV, 2014 WL 12279424, at *3

(S.D. Fla. Feb. 21, 2014) (dismissing FTCA claims in part because the plaintiff failed

to allege or show that a timely written notice of a claim was presented to the federal

agency).

Here, Plaintiff has not alleged or shown that he submitted an administrative

tort claim to the Commissioner or that the Commissioner denied the claim. (See

Docs. 1, 16). On the other hand, Defendant has provided an affidavit signed by

Brandon Del’Aglio, an FTCA Team Leader, attesting that “no administrative tort

claim has been filed against SSA by the Plaintiff herein, relative to the claims

asserted in the [instant] action.” (See Doc. 10-4 at ¶¶ 1, 5). In light of this

uncontroverted evidence, the Undersigned finds that the Court lacks subject matter

jurisdiction over any claim brought under the FTCA that is unrelated to the partial

denial of Plaintiff’s reimbursement award. See Willoughby, 2014 WL 5038550, at *5.

Finally, even if the presiding United States District Judge were to find that

Plaintiff exhausted his administrative remedies, the Undersigned finds that the

Complaint would nonetheless be due to be dismissed because Plaintiff has identified

no recognized negligence claim under Florida state law, as required to seek redress

against the Commissioner for an FTCA claim. See Ochran v. United States, 273 F.3d

1315, 1317 (11th Cir. 2001); (see also Doc. 1).

In sum, the Undersigned finds that the Court lacks jurisdiction to hear either

Plaintiff’s claim for $267,500.00 in damages for the stress caused by the SSA or his

claim for $100,00.00 in damages to prepay Plaintiff and “his team members” to

investigate the SSA under either the Social Security Act or the FTCA. (See Doc. 1 at

¶¶ 5-6).

D. Plaintiff’s Claim for $100,000.00 to Investigate

SSA Employees Is Due to Be Dismissed.

Defendant next argues that the Court must deny Plaintiff’s request that the

Court authorize him to investigate how the ALJs have wronged him and others.

(Doc. 10 at 16 (citing Doc. 1 at ¶¶ 3,6)). Defendant maintains that “Congresshas

reserved the administration of SSA’s programs to the Commissioner” and tha t “the

Commissioner and his delegates have exclusive authority and control over all [SSA]

personnel and activities thereof.” (Id. (internal quotations omitted; alteration in

original) (citing See 42 U.S.C. § 901(b); 42 U.S.C. § 902(a)(4))). Thus, Defendant

argues that “it is for SSA to decide whether to investigate its employees, and no

provision of the Act allows this Court to review that decision.” (Id. (citing 42 U.S.C.

§ 405(g)-(h); King ex rel. S.K. v. Comm’r of Soc. Sec., No. 6:07-cv-537-Orl-22DAB, 2008

WL 4095493, at *6 (M.D. Fla. Aug. 29, 2008))). Ultimately, Defendant maintains,

that “[b]ecause Plaintiff has identified no statute that authorizes this Court to order

or approve an investigation, it must dismiss Plaintiff’s request for lack of subject

matter jurisdiction.” (Id. at 16-17).

Upon review, the Undersigned finds that Plaintiff’s claim for a Court Order

authorizing him to investigate how unnamed ALJs have wronged him and others is

due to be dismissed. As the Court has previously noted, “section 405(g) provides for

affirming, modifying, or reversing the decision of the Commissioner but does not

permit the Court to order an investigation within the Social Security

Administration.” King ex rel. S.K. v. Comm’r of Soc. Sec., No. 6:07-cv-537-Orl-22DAB,

2008 WL 4095493, at *6 (M.D. Fla. Aug. 29, 2008). Thus, the Court has authority

to review Plaintiff’s case, but it lacks the authority to direct an investigation into the

practices of the SSA. See id. Rather, the Commissioner and the Commissioner’s

delegates have exclusive authority and control over all SSA personnel and activities.

See 42 U.S.C. § 901(b) (granting the SSA control over administration of the Social

Security programs); 42 U.S.C. § 902(a)(4) (“The Commissioner [of the SSA] shall be

responsible for the exercise of all powers and the discharge of all duties of the [SSA],

and shall have authority and control over all personnel and activities thereof.”).

Thus, the Undersigned finds that the Court lacks the authority to authorize Plaintiff

to investigate the SSA – or to award him the funds to do so – and, therefore, finds

that Plaintiff’s claim is due to be dismissed.

E. Plaintiff’s Claim for $1,100.00 in Fees and

Expenses Is Due to Be Dismissed.

Finally, Defendant argues that the Court must deny Plaintiff’s request for the

$400.00 filing fee and other expenses associated with the prior action. (Doc. 10 at

17). In support, Defendant notes that Plaintiff has admitted that he received the

$400.00 filing fee. (Id. (citing Doc. 10-3)). Thus, Defendant contends that the

request for this fee is moot and that the Court should dismiss this claim. (Id.). As to

Plaintiff’s request for additional costs and expenses associated with the prior

litigation, Defendant maintains that the claim is barred by the doctrine of res

judicata. (See id. at 17-18). Specifically, Defendant highlights that based on

Plaintiff’s representations at a hearing in the prior action, the parties filed a joint

motion for fees under the EAJA, which sought only the $400.00 filing fee, and the

Court granted the joint motion. (Id. at 18). Defendant argues that because Plaintiff

did not seek any additional costs or expenses, despite their existence at the time of

the prior litigation, any request for them is now barred. (Id.).

Likewise, Defendant contends that any claims for reimbursement of costs and

expenses associated with the current action is “entirely dependent on whether there

is a final judgment and whether he is a prevailing party for purposes of EAJA,” and

that based on the claims set forth in the Complaint, it is unlikely Plaintiff will prevail.

(Id. at 17 n.2 (citation omitted)).

As to Plaintiff’s claim for the $400.00 filing fee incurred in the prior litigation,

the Undersigned finds that the claim is due to be dismissed because the request is

moot. Article III of the United States Constitution grants federal courts jurisdiction

over “Cases” and “Controversies.” Strickland v. Alexander, 772 F.3d 876, 882 (11th

Cir. 2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992)). This

limitation “imposes what are generally referred to as ‘justiciability’ limitations.” Id.

(citing Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998)).

Justiciability in turn is concerned with standing, ripeness, and mootness. Id. (citing

Leahy, 145 F.3d 1244). “The failure of any one of these strands can deprive a federal

court of jurisdiction.” Id. at 883. The Supreme Court has observed the similarities

between standing and mootness, explaining that “the doctrine of mootness can be

described as ‘the doctrine of standing set in a time frame: [t]he requisite personal

interest that must exist at the commencement of the litigation (standing) must

continue throughout its existence (mootness).’” Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting Arizonans for Off. Eng. v.

Arizona, 520 U.S. 43 at 68 n.22 (1997)). Thus, “after a case is filed, if something

subsequently occurs such that there is no longer a live controversy, then the case or

portion thereof becomes moot.” Cicero v. Liberty Mut. Ins. Co., No. 3:15-cv-076-HES-

PDB, 2016 WL 6571235, at *4 (M.D. Fla. Jan. 7, 2016).

Here, after filing this action, Plaintiff received the $400.00 filing fee incurred in

filing the previous lawsuit. (See Doc. 10-3 (Plaintiff acknowledging that he received a

check for $400.00)). Accordingly, the claim for the $400.00 filing fee from the prior

litigation fails the mootness prong of justiciability and, therefore, deprives this Court

of jurisdiction over that claim. See Strickland, 772 F.3d at 882. As a result, the claim

for the $400.00 filing fee from the prior litigation is due to be dismissed for lack of

jurisdiction.

As to the claim for additional expenses incurred in litigating the prior action, if

any, the Undersigned finds that the claim is barred by the doctrine of res judicata.

As discussed above, “[t]he purpose behind the doctrine of res judicata is that the ‘full

and fair opportunity to litigate protects [a party’s] adversaries from the expense and

vexation attending multiple lawsuits, conserves judicial resources, and fosters

reliance on judicial action by minimizing the possibility of inconsistent decisions.’”

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1990) (second alteration

in original) (quoting Montana v. United States, 440 U.S. 147, (1979). Although not

addressed by Defendant, the doctrine of “[r]es judicata generally refers to two

separate concepts: claim preclusion and issue preclusion (also referred to as

collateral estoppel).” Clements v. Apax Partners LLP, No. 2:20-cv-310-FtM-29MRM,

2021 WL 982740, at *4 (M.D. Fla. Mar. 16, 2021), reconsideration denied, No. 2:20-cv-

310-FtM-JES-MRM, 2021 WL 1851684 (M.D. Fla. May 10, 2021) (citing Migra v.

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984)).

Claim preclusion “bars the parties to an action from litigating claims that were

or could have been litigated in a prior action between the same parties.” Lobo v.

Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013). A claim is barred by the

doctrine of claim preclusion, if: “(1) there is a final judgment on the merits; (2) the

decision was rendered by a court of competent jurisdiction; (3) the parties, or those in

privity with them, are identical in both suits; and (4) the same cause of action is

involved in both cases.” Griswold v. County of Hillsborough, 598 F.3d 1289, 1292 (11th

Cir. 2010) (quoting Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir.

1990)). “If a case arises out of the same nucleus of operative fact, or is based on the

same factual predicate as a former action, then the two cases present the same claim

or cause of action for purposes of res judicata.” Schwab v. Huntington Nat. Bank, No.

2:12-cv-315-FtM-38, 2013 WL 6182127, at *6 (M.D. Fla. Nov. 25, 2013) (citing

Home Depot U.S.A., Inc. v. U.S. Fire Ins. Co., 299 F. App’x 892, 896 (11th Cir. 2008)).

“The ‘essential elements’ of issue preclusion are ‘that the parties and issues be

identical, and that the particular matter be fully litigated and determined in a contest

which results in a final decision of a court of competent jurisdiction.’” Id. (quoting

Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1235 (Fla.

2006)).

For the reasons discussed in Part III.B supra, the Undersigned finds that the

first three elements are met; that is, there was final judgment by a court of competent

jurisdiction in an action involving identical parties. See Harris, No. 2:19-cv-00823-

NPM, Docs. 1, 18, 19, 20. Additionally, the issue of fees under the EAJA was

clearly litigated and resolved in the prior action. See Harris, No. 2:19-cv-00823-NPM,

Docs. 19, 20. Because both issues arise from the same nucleus of operative facts––

i.e., whether Plaintiff is entitled to fees and costs as the prevailing party in the

previous lawsuit––the Undersigned finds the issue of Plaintiff’s entitlement to the

filing fee under the EAJA is the same issue or claim as an entitlement to additional

expenses for the purposes of res judicata. See Ragsdale, 193 F.3d at 1240; see also

Home Depot U.S.A., 299 F. App’x at 896. Moreover, to the extent the claim is for

expenses incurred in litigating the prior lawsuit, the issue existed at the time Plaintiff

claimed EAJA fees in the prior litigation. See Ragsdale v, 193 F.3d at 1240. Thus, the

Undersigned finds that to the extent Plaintiff seeks additional expenses associated

with litigating his prior action, the claim is barred by the doctrine of res judicata.

Finally, to the extent the additional $300.00 relates to the cost of litigating this

action, the Undersigned finds that Plaintiff is only entitled to such relief if he is the

prevailing party in this lawsuit. See 28 U.S.C. § 2412(d)(1)(A); see also Fed. R. Civ. P.

54(d)(1). The same is true for the $400.00 filing fee incurred by filing the action. See

id. For the reasons set forth herein, the Undersigned finds that at this time Plaintiff is

not the prevailing party for the purposes of either the EAJA or Fed. R. Civ. P. 54.

Due to the nature of this relief, a subsequent demand in any amended complaint

would have no substantive bearing on the resolution of any future motion to dismiss.

In sum, for all the reasons set forth herein, the Undersigned finds that

Defendant’s motion is due to be granted and that Plaintiff’s Complaint is due to be

dismissed without prejudice. See Stalley ex rel. United States v. Orlando Reg’l Healthcare

Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (citation omitted) (“A dismissal for

lack of subject matter jurisdiction is not a judgment on the merits and is entered

without prejudice.”). Although the Undersigned is doubtful that Plaintiff can amend

the Complaint to, truthfully, cure the deficiencies addressed in this Report and

Recommendation, the Undersigned nevertheless recommends that Plaintiff be

afforded an opportunity to do so within fourteen (14) days of the date of the

presiding United States District Judge’s Order on the motion. The Undersigned also

recommends that pro se Plaintiff be expressly warned that the failure to file an

amended Complaint will result in the Court dismissing the action with further notice.

CONCLUSION

Accordingly, the Undersigned RESPECTFULLY RECOMMENDS that:

1. Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 10) be

GRANTED;

2. Plaintiff be ordered to file an amended complaint attempting to cure the

jurisdiction defects discussed in any Order on the instant motion

without fourteen (14) days of the date of the Order; and

3. Plaintiff be warned that failure to file an amended complaint within

fourteen (14) days of the date of any Order on the instant motion will

result in this case being dismissed without further notice.

RESPECTFULLY RECOMMENDED in Chambers in Ft. Myers, Florida

on October 18, 2021.

Mac R. MA

United States Magistrate Judge

NOTICE TO PARTIES

A party has fourteen days from this date to file written objections to the

Report and Recommendation’s factual findings and legal conclusions. A party’s

failure to file written objections waives that party’s right to challenge on appeal any

unobjected-to factual finding or legal conclusion the district judge adopts from the

Report and Recommendation. See 11th Cir. R. 3-1. A party wishing to respond to

an objection may do so in writing fourteen days from the filing date of the objection.

The parties are warned that the Court will not extend these deadlines. To expedite

resolution, the parties may also file a joint notice waiving the fourteen-day objection

period.

Copies furnished to:

Counsel of Record

Unrepresented Parties