The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HARRY L. FORE,
Plaintiff,
MEMORANDUM & ORDER
-against- 18-CV-1658(JS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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APPEARANCES
For Plaintiff: Harry L. Fore, pro se
600 Franklin Avenue
P.O. Box 352
Garden City, New York 11530
For Defendant: Candace Scott Appleton, Esq.
United States Attorney’s Office
Eastern District Of New York
271 Cadman Plaza East
Brooklyn, New York 11201
SEYBERT, District Judge:
Currently pending before the Court is defendant
Commissioner of Social Security’s (“Commissioner”) motion to
dismiss pro se plaintiff Harry L. Fore’s (“Plaintiff”) Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction. (Comm’r Mot., D.E. 11; Comm’r Br.,
D.E. 12; Pl. Opp., D.E. 14; Comm’r Reply, D.E. 16.) For the
following reasons, the Commissioner’s motion is GRANTED.
BACKGROUND
I. Plaintiff’s Prior Social Security Fraud Conviction and
Motion to Vacate, Set Aside, or Correct his Sentence
Pursuant to 28 U.S.C. § 2255
On January 30, 1997, a grand jury named Plaintiff in a
25-count indictment that charged him with fraudulent use of two
social security numbers, mail fraud, and making false statements,
in violation of 42 U.S.C. § 408(a) and 18 U.S.C. §§ 1341, 1001.
See U.S. v. Fore, 169 F.3d 104, 106 (2d Cir. 1999). As described
by the Second Circuit:
Fore obtained two different social security numbers in
1971 and 1976, providing false information on his second
social security number application. Using his first
number, Fore unlawfully claimed and received social
security disability benefits for himself and his
dependents in the amount of $66,000 for the period of
July 1989 through February 1996. The benefits were
unlawful because Fore was not disabled and actually
worked during that time. Fore used his second social
security number in connection with his employment at
Friendly’s restaurant between April 1989 and April 1990
and Carey Transportation between March 1992 and February
1993. During the time he worked for Carey
Transportation, Fore made three workers compensation
claims using the second social security number,
including a claim for which he received $19,000 from
Aetna Casualty and Surety Company between March 1993 and
November 1994. In connection with the third workers
compensation claim, Fore’s physician completed medical
reports known as “C–4” forms and mailed them to the
insurance company between September 1993 and November
1994. These mailings provided the basis for the 14 counts
of mail fraud with which Fore was charged.
In September 1993, Fore applied for a job as a custodian
with the U.S. Postal Service, using his first social
security number. He made false statements on his
government employment application because he did not
disclose the second social security number, his full
work history, or his prior claims regarding disability
and workers compensation. Fore worked for the postal
service between October 1993 and May 1994.
Id. at 106-07. On October 23, 1997, after a trial before the
undersigned, a jury convicted Plaintiff on all 25 counts.1 (See
No. 97-CR-0108, D.E. 33.) On January 20, 1998, this Court
sentenced Plaintiff to 25 concurrent terms of 27 months and to 3
years of supervision upon his release from prison. (See No. 97-
CR-0108, D.E. 43 and 44.) As a condition of supervised release,
among others, Plaintiff was required to pay restitution in the
amount of $89,680.53. (See No. 97-CR-0108, D.E. 43 and 44.)
Plaintiff appealed his conviction to the Second Circuit.
Among other things, the Second Circuit held that Plaintiff did not
suffer a constitutional deprivation by proceeding pro se at trial
and that his decision to waive counsel was “knowing and
intelligent” and that he “considered and understood the
ramifications of his choice.” Fore, 169 F.3d at 108–09. The
Second Circuit also affirmed the Court’s restitution order to the
extent the Court “imposed restitution payments to SSA as a
condition of [Plaintiff’s] supervised released.” Fore, 169 F.3d
at 110. The Second Circuit vacated the “portion of the restitution
1 On September 9, 1997, Plaintiff informed the Court “that he
wanted to represent himself at trial because ‘no one [knew] what
[he] was going through at this particular time better than [he
did].’” Fore, 169 F.3d at 107 (alterations in original).
Although the undersigned warned Plaintiff “of the dangers of
proceeding pro se,” Plaintiff did not change his mind. Id.
order directing payment to Cigna.” Id. at 109-10. On remand,
this Court amended the judgment to read: “The following restitution
amount is deleted from the prior judgment, as directed by the
Second Circuit: CIGNA: $4,420.00. As a result the restitution
amount is decreased by $4,420.00 making the restitution amount
$85,260.53.” (No. 97-CR-0108, D.E. 80.)
On April 8, 1999, Plaintiff, proceeding pro se, filed a
motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255. (See No. 99-CV-2140, Pet., D.E. 1.) Plaintiff
argued, among other things, that his conviction was obtained in
violation of his constitutional rights because he was pro se and
mentally incompetent. (See No. 99-CV-2140, Pet.) On November 2,
2001 the Court denied Plaintiff’s motion. (No. 99-CV-2140,
Nov. 2, 2001 Order, D.E. 17.) The Court construed Plaintiff’s
claim of mental incompetence to allege that he was “mentally
incompetent at the time of trial and, therefore, his constitutional
rights were violated and also to argue that Petitioner did not
previously bring any of the claims brought in the § 2255 proceeding
because he was mentally incompetent and proceeding pro se.”
(Nov. 2, 2001 Order at 6.) The Court found that his mental
impairment arguments were an attempt to “relitigate the
determination of this Court, which was affirmed by the Court of
Appeals, that Petitioner was competent at the time of trial and is
therefore barred.” (No. 99-CV-2140, Nov. 2, 2001 Order at 7.)
II. Plaintiff’s 1985 and 2000 Benefits Applications and Decisions
On November 5, 1985, an Administrative Law Judge (“ALJ”)
determined that Plaintiff was entitled to a period of disability
beginning December 13, 1983. (Appeals Council Notice, D.E. 14, at
ECF p. 1617; Nov. 5, 1983 Determination, D.E. 1-7, at ECF pp. 14-
21.) Plaintiff’s disability ceased as a result of substantial
gainful activity in April 1989 and his entitlement to a period of
disability and disability insurance benefits terminated at the end
of June 1989. (Appeals Council Notice at ECF p. 17.)
In 2000, Plaintiff reapplied for a period of disability,
disability insurance benefits, and supplemental security income
(the “2000 Benefits Application”). (Appeals Council Notice at ECF
p. 17.) The Social Security Administration (“SSA”) approved
Plaintiff’s claim for only supplemental security income (the “2000
Benefits Decision”). (Appeals Council Notice at ECF p. 17.)
Plaintiff’s claim for Title II2 (disability) benefits was denied
for failure to establish disability through the date he was last
insured, i.e. 1995. (Appeals Council Notice at ECF p. 17.) In
2 “Title II provides for payment of disability benefits to
disabled individuals who are ‘insured’ under the [SSA] by virtue
of their contributions to the Social Security trust fund through
the Social Security tax on their earnings, as well as to certain
disabled dependents of insured individuals. Title XVI provides
SSI payments to disabled individuals (including children under
age 18) who have limited income and resources.” See
https://www.ssa.gov/disability/professionals/bluebook/general-
info.htm.
2009, the SSA conducted a continuing disability review that
considered disability under both Titles II and XVI. (Appeals
Council Notice at ECF p. 17.) However, that determination was
issued in error because Plaintiff was “not found disabled in 2000
for purposes of entitlement to a period of disability and
disability insurance benefits” and the “continuing disability
review should have only referenced eligibility for supplemental
security income.” (Appeals Council Notice at ECF p. 17.)
Plaintiff never appealed the 2000 Benefits Decision.
III. Plaintiff’s 2014 Disability Benefits Application and Decision
On September 25, 2014, Plaintiff filed an application
for disability insurance benefits alleging disability beginning
December 13, 1983. (2014 App., Prelle Decl., Ex. 1, D.E. 12-1, at
ECF pp. 4-11.) On October 8, 2014, the SSA sent Plaintiff a
“Notice of Disapproved Claim,” informing him that he did not
qualify for disability benefits based on res judicata.
(Oct. 8, 2014 Notice, Prelle Decl., Ex. 2, D.E. 12-1, at ECF pp.
12-14.) Plaintiff requested reconsideration3 on the basis that
“circumstances ha[ve] changed.” (2014 Reconsid. Req., Prelle
Decl., Ex. 3, D.E. 12-1, at ECF p. 15.) On January 12, 2015, the
3 Plaintiff submitted a “Request for Hearing by Administrative
Law Judge” but a handwritten notation indicates it was “accepted
in place of 561.” (2014 Reconsid Req. at ECF p. 15.) The SSA’s
website indicates that Form SSA-561 is a “Request for
Reconsideration.” See https://www.ssa.gov/forms/ssa-561.pdf.
SSA denied Plaintiff’s request for reconsideration finding that
“[t]he date you are last insured for Social Security Disability is
12/31/95,” and that Plaintiff’s “disability ended 6/09,” and
Plaintiff did not appeal that decision. (Jan. 12, 2015 Denial,
Prelle Decl., Ex. 4, D.E. 12-1, at ECF p. 16-18.) Plaintiff’s
request for reconsideration was also denied even considering
claims that Plaintiff’s disability worsened in January 2000
“because of a lack of insured status.” (Jan. 12, 2015 Denial at
ECF pp. 16.)
On March 27, 2015, Plaintiff requested a hearing before
an ALJ to “appeal” the denial of his request for reconsideration.
(Mar. 2015 Hearing Req., Prelle Decl., Ex. 5, D.E. 12-1, at ECF p.
19.) Specifically, Plaintiff sought to appeal the portion of the
denial that indicated benefits ended on “06/09,” “a letter was
sent on 08/10/09,” and that Plaintiff “failed to appeal within
sixty (60) days.” (See Mar. 2015 Hearing Req.) On March 10, 2017,
an ALJ dismissed Plaintiff’s request for a hearing on the ground
that res judicata barred his application. (Mar. 2017 Denial,
Prelle Decl. Ex. 6, D.E. 12-1, at ECF p. 20-24, at 23.)
Specifically, the ALJ stated:
The record shows that the claimant previously filed
applications for a period of disability, disability
insurance benefits, and supplemental security income
that were denied in a determination dated
January 12, 2015.4 This determination, which was issued
after the claimant’s insured status expired on
December 31, 1995, became administratively final
because the claimant did not request review within the
stated time period.
(Mar. 2017 Denial at ECF p. 23.) The ALJ did not extend the
deadline for review because, at the time of the 2000 Benefits
Decision, “the claimant did not have or allege having a mental
impairment [and] none of the conditions for reopening set forth in
20 CFR § 404.9885 [are] present in this case.” (Mar. 2017 Denial
at ECF p. 23.) The ALJ also compared the facts and issues alleged
in the “previous determination with that relating to [Plaintiff’s]
current claim” and found “no new and material evidence has been
submitted and [ ] there has been no change . . . concerning the
facts and issues ruled upon in connection with the previously
adjudicated period.” (Mar. 2017 Denial at ECF pp. 23-24.)
On April 7, 2017, Plaintiff requested a review of a
“hearing decision/order” to the Appeals Council because the ALJ
“lied an[d] said [Plaintiff] was unrepresented [and had] no mental
impairment” and the ALJ “failed to apply
4 This date appears to be incorrect and the Court assumes it
refers to the 2000 Benefits Application and Decision.
5 20 CFR § 404.988 provides the conditions for reopening SSA
decisions.
20 C.F.R. § 404.988(7)(8).”6 (2017 Review Req., Prella Decl., Ex.
7, D.E. 12-1, at ECF p. 25.)
On October 25, 2017, the Appeals Council issued a notice
denying Plaintiff’s request for review. (Appeals Council Notice
at ECF pp. 16-17.) The Appeals Council reviewed medical evidence
from Dr. Deleon Blanco, dated April 1, 1999 and E. Travis, D.D.S,
dated May 3, 1999 and found they did “not relate to the period at
issue” and therefore did not “affect the decision about whether
[Plaintiff was] disabled beginning on or before
December 31, 1995.” (Appeals Council Notice at ECF p. 17.) The
Appeals Council next detailed Plaintiff’s disability determination
history (see BACKGROUND, Section II, supra) and concluded that the
ALJ’s “dismissal of the request for hearing was appropriate.”
(Appeals Council Notice at ECF p. 17.)
On March 16, 2018, Plaintiff commenced this action
seeking review of the Appeals Council’s October 25, 2017 denial.
(See Compl., D.E. 1; see also Compl., Ex. A., D.E. 1-1, at ECF pp.
2-3.) The Complaint avers that Plaintiff did not receive the
Appeals Council’s Notice before March 1, 2018, the date he alleges
his attorney provided him with a copy. (See Compl. at ECF p. 2;
6 Plaintiff also submitted a copy of his request to the Appeals
Council, however, in addition to his claims that the ALJ
(1) lied and (2) failed to apply 20 CFR § 404.988, Plaintiff’s
copy includes the phrase “clerical errors.” (Mar 2015 Hearing
Req., D.E. 14, at ECF p. 13.)
Compl., Ex. A., at ECF pp. 2-5.) Plaintiff asks the Court excuse
his “late filing” due to mental illness. (See Compl., Ex. A.,
D.E. 1-1, at ECF p. 2.) Plaintiff also argues that he “failed to
establish insured disability through the year 2000” because
“[D]efendant failed to apply all of the [P]laintiff[’s] earnings
from 1989 to 1995” and that he was denied due process because the
Commissioner committed a “clerical error” warranting the re-
opening of the 2000 Benefits Decision pursuant to
20 CFR § 404.988(7)(8). (Compl., Ex. A., at ECF p. 3, ¶¶ 3-4.)
Specifically, the Complaint alleges that it was error
for the Commissioner to find Plaintiff’s benefits ended in 1995
when the “SSA 7005-sm-s1 form clearly shows [ ] [P]laintiff worked
in 1995,” and that he deserves “extra credit” for being a member
of the U.S. Military. (Compl., Ex. A., at ECF p. 4.) The Complaint
also alleges that the Commissioner disseminated false information
by stating that (1) the issues raised in Plaintiff’s 2014 Benefits
Application were the same as in previous applications,
(2) Plaintiff was unrepresented, and (3) Plaintiff had no mental
impairment. (Compl., Ex. A., at ECF p. 4, ¶ 6.)
DISCUSSION
I. Standard of Review
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.” Makarova v.
U.S., 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to
dismiss for lack of subject matter jurisdiction, the Court may
consider affidavits and other materials beyond the pleadings to
resolve jurisdictional questions. See Morrison v. Nat’l Australia
Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The Court must
accept as true the factual allegations contained in the complaint,
but it will not draw argumentative inferences in favor of Plaintiff
because subject matter jurisdiction must be shown affirmatively.
See id.; Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998). “A plaintiff asserting subject
matter jurisdiction has the burden of proving by a preponderance
of the evidence that it exists.” Makarova, 201 F.3d at 113.
II. Analysis
The Commissioner argues that the Court lacks subject
matter jurisdiction over the Complaint because the Appeals
Council’s decision affirming the ALJ’s decision to not grant a
hearing based on res judicata is not a judicially reviewable final
decision. (Comm’r Br. at 5-7.) Plaintiff responds that res
judicata does not bar his claim “where there is a continuing wrong
like the clerical error in this case.” (Pl. Opp. at ECF p. 1.)
According to Plaintiff, the Commissioner violated Plaintiff’s
procedural due process rights by failing to credit Plaintiff for
work credits “earned” at “Friendly[’s] between April 1989 and April
1990 [and] at Carey Transportation between March 1992 and February
1993” while using his fraudulently obtained second social security
number. (See generally Pl. Opp. at ECF p. 1.)
A. The Court Lacks Jurisdiction
“Judicial review of the Commissioner’s adjudications of
claims arising under Title II of the Social Security Act (“the
Act”) is provided for and limited by 42 U.S.C. §§ 405(g) and (h).”
Ramos v. Astrue, No. 11-CV-6204, 2012 WL 2358158, at *1 (E.D.N.Y.
June 20, 2012). “According to § 405(g), judicial review is
authorized only after a ‘final decision of the Commissioner of
Social Security made after a hearing.’” Id. (citation omitted).
Moreover, “[t]he law is clear that district courts do not have
jurisdiction to review the SSA’s res judicata determinations
unless a plaintiff presents a colorable constitutional claim.”
Orozco v. Barnhart, No. 05-CV-6083, 2006 WL 1276737, at *2
(S.D.N.Y. May 10, 2006) (collecting cases). Accordingly, there is
no final decision for the Court to review and the Complaint must
be dismissed unless Plaintiff presents a “colorable constitutional
claim.” Id.
B. Plaintiff Has Not Presented a Colorable Constitutional
Claim
“The Commissioner’s decision not to reopen a prior
determination is generally not subject to judicial review.” Pataro
v. Berryhill, No. 17-CV-6165, 2019 WL 1244664, at *12 (S.D.N.Y.
Mar. 1, 2019), R&R adopted, 2019 WL 1244325 (S.D.N.Y. Mar. 18,
2019) (citing Califano v. Sanders, 430 U.S. 99, 107-08, 97 S. Ct.
980, 985-86, 51 L. Ed. 2d 192 (1977)). However, the Court may
“review the Commissioner’s decision not to reopen a disability
application under two limited exceptions: ‘where the Commissioner
has constructively reopened the case and where the claimant has
been denied due process.’” Ramos, 2012 WL 2358158, at *2 (quoting
Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003)). A case is
“‘constructively reopened when the ALJ ‘reviews the entire record
and renders a decision on the merits.’” Id. Here, the ALJ did not
review the entire record and therefore this exception does not
apply. See, e.g., Bigelow v. Astrue, No. 08-CV-6450, 2009 WL
1955750, at *4 (W.D.N.Y. July 6, 2009) (“Indeed, even if the
Appeals Council considers the merits of a claimant’s request for
reconsideration, ‘where the discussion of the merits is followed
by a specific conclusion that the claim is denied on res judicata
grounds, the decision should not be interpreted as re-opening the
claim and is therefore not reviewable’”) (quoting Krumpelman v.
Heckler, 767 F.2d 586, 589 (9th Cir. 1985)).
Rather, Plaintiff argues that the Commissioner’s failure
to account for his “work credits” was an unconstitutional
deprivation of property. (See Pl. Opp. at ECF p. 2 (asserting a
violation of procedural due process).) Plaintiff obtained these
work credits while using his second social security number. (See
BACKGROUND, Section I, supra.) The Court cannot find any source
holding that there is a constitutionally protected property
interests in work credits “earned” by using a fraudulently obtained
social security number. Absent law to the contrary, the Court
declines to carve out a constitutional right protected by
procedural due process where, as here, a jury convicted Plaintiff
for fraudulently obtaining, and then using, the second social
security number. See Fore, 169 F.3d at 106-07.
To the extent Plaintiff argues he was denied procedural
due process because the ALJ did not hold a hearing with respect to
his request to reopen the 2000 Disability Decision, “the
Commissioner is not required to hold a hearing before invoking res
judicata to deny such a claim.” Bigelow, 2009 WL 1955750, at *5
(citing Yeazel v. Apfel, 148 F.3d 910, 912 (8th Cir. 1998)).
Moreover, although Plaintiff never appealed the 2000
Benefits Decision, he asks the Court to excuse his belated request
to reopen the 2000 Benefits Decision because a mental impairment
prevented him from timely doing so. (See generally Compl; Pl.
Opp.) “‘A claimant suffering from mental illness raises a
colorable constitutional claim when he asserts that his mental
illness precluded him from litigating his claim because it
prevented him from proceeding from one administrative level to
another.’” Vaswani v. Barnhart, No. 05-CV-8539, 2007 WL 2412262,
at *3 (S.D.N.Y. Aug. 23, 2007) (quoting Byam, 336 F.3d at 182).
“To establish this type of claim, a claimant must make a
‘particularized allegation of mental impairment plausibly of
sufficient severity to impair comprehension.’ The Byam standard
requires inquiry into not only whether the claimant could
understand administrative and legal procedures, but also whether
she could pursue these procedures.” Id. (quoting Byam, 336 F.3d
at 182-83.) Moreover, a plaintiff cannot rely “upon a generalized
allegation, long after the fact, that the claimant was too confused
to understand available administrative remedies.” Stieberger v.
Apfel, 134 F.3d 37, 41 (2d Cir. 1997).
Plaintiff submits (1) a medical evaluation form, dated
April 27, 1999, indicating a possible schizophrenia diagnosis (Pl.
Opp., at ECF p. 9) and (2) a memorandum, dated April 1, 1999,
summarizing a mental status exam of Plaintiff (Pl. Opp., at ECF p.
10). These records fail to demonstrate that Plaintiff’s mental
impairment prevented him from “understand[ing] administrative and
legal procedures” and from “pursu[ing] these procedures” in the
year 2000. Vaswani, 2007 WL 2412262, at *3. To the contrary, the
medical forms pre-date Plaintiff’s 2000 Benefits Application.
Therefore, notwithstanding his medical diagnoses, Plaintiff
understood the administrative and legal procedures to follow to
file a request for benefits. Indeed, Plaintiff appealed his
criminal conviction and the Court’s denial of his habeas petition
to the Second Circuit. (See DISCUSSION supra.) Moreover, at or
around the time Plaintiff submitted his 2000 Benefits Application,
Plaintiff raised the issue of his mental impairment in an appeal
before Veterans Affairs (see discussion at VA Appeal Decision,
D.E. 1-7, at ECF p. 9) and in his habeas petition before this Court
(see DISCUSSION supra). In fact, the April 27, 1999 medical
evaluation form submitted here was also attached to Plaintiff’s
habeas petition. (See No. 99-CV-2140, Pet.) Further, as detailed
by the Commissioner, “Plaintiff was able to pursue the processing
and continued receipt of SSI benefits for years” and “filed the
necessary paperwork to” select a representative payee. (See Comm’r
Reply at 4; see also Pl. Opp., at ECF pp. 25-27.) Plaintiff’s
2014 Disability Application also indicated that “[t]he
circumstances had changed,” and not that he was prevented from
appealing the 2000 Disability Decision on the grounds that mental
illness prevented him from timely doing so. (See 2014 Reconsid.
Req.) Thus, Plaintiff’s mental impairment did not prevent him
from proceeding from one administrative level to another and there
has been no violation of due process that would justify the Court’s
review despite Plaintiff’s failure to satisfy Section 405(g).
C. No Private Right of Action
“There is no private right of action under the Social
Security Act.” Katsoulakis v. Astrue, No. 10-CV-0081, 2011 WL
3877080, at *5 (E.D.N.Y. Aug. 31, 2011). Even assuming that the
Court has subject matter jurisdiction over this action,
Plaintiff’s claims still fail to state a claim for which relief
may be granted. Indeed, “to the extent plaintiff is attempting to
allege violations of [his] constitutional rights by the SSA, the
SSA is immune from suit.” Katsoulakis, 2011 WL 3877080, at *5
(explaining that Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)
bars actions against a federal agency).
D. The Court’s Restitution Order
Finally, Plaintiff asks the Court to vacate the
restitution order arising out of his criminal conviction because
he is “permanently disabled.” (Pl. Opp. at ECF p. 3.) This
request is denied. As stated, the Second Circuit affirmed the
Court’s restitution order to the extent it was imposed “as a
condition of [Plaintiff’s] supervised released.” Fore, 169 F.3d
at 110. Thus, the Court’s restitution order requiring Plaintiff
to pay $89,680.53 was affirmed and remains valid as a condition of
supervised release.
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CONCLUSION
Accordingly, the Commissioner’s motion (D.E. 11) is
GRANTED and the Complaint is DISMISSED with prejudice. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status
is DENIED for the purpose of an appeal. Coppedge v. U.S., 369
U.S. 438, 444-45, 82 S. Ct. 917, 920-21, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to enter judgment accordingly
and to mark this case CLOSED.
SO ORDERED
_/s/ JOANNA SEYBERT_____
Joanna Seybert, U.S.D.J.
Dated: March 24__, 2020
Central Islip, New York