United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
than three months after her initial lawsuit against the
Social Security Administration (“SSA”), Plaintiff
Ruth Richter, proceeding pro se, has filed another lawsuit
against the SSA claiming that it sent Plaintiff's SSI
checks to “an unauthorized payee” from 1984 to
1990 without Plaintiff's consent or knowledge, and such
checks were then sent to a “second unauthorized person
to be used for my benefit . . . but never were.”
(Filing No. 1 at CM/ECF p. 1.) Plaintiff complains that the
SSA wrongfully charged her for “overpayments” 17
years ago to “cover up a real crime of fraud in which
SSA played a part.” (Filing No. 1 at CM/ECF p. 2.)
Plaintiff does not explicitly request monetary damages, but
implies as much by asking this court to “hold defendant
accountable for perpetuating a fraud by a known unauthorized
payee who . . . witheld [sic] my early round SSI checks and
SSA would not schedule appeal hearings in 1999 and 2014 after
cutting off my SSI payments altogether in 1999.”
(Filing No. 1 at CM/ECF p. 2.)
STANDARDS FOR INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See 28
U.S.C. § 1915(e). The court must dismiss a complaint or
any portion of it that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted,
or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B).
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
extent Plaintiff seeks to challenge the SSA's allegedly
wrongful discontinuation of her SSI benefits, such claim has
been asserted in Plaintiff's other case in this court and
will not be considered here. See Richter v. Social
Security Administration, No. 8:17CV155 (D. Neb. 2017)
(Filing 9, Memorandum and Order on initial review).
as the court can determine, Plaintiff's only claim in
this lawsuit is that the SSA committed fraud when it sent
Plaintiff's SSI checks to “an unauthorized
payee” without Plaintiff's consent or knowledge
from 1984 to 1990, and then charged Plaintiff for
“overpayments” to “cover up” its
agency of the United States, the SSA enjoys sovereign
immunity from suit absent consent, and such consent is a
prerequisite for jurisdiction. See FDIC v. Meyer,
510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from
suit.”); United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United
States may not be sued without its consent and that the
existence of consent is a prerequisite for
claim in this case-fraud-would fall under the Federal Torts
Claim Act (“FTCA”), which provides “a
limited waiver of the United States's sovereign immunity,
to permit persons injured by federal-employee tortfeasors to
sue the United States for damages in federal district
court.” Mader v. United States, 654 F.3d 794,
797 (8th Cir. 2011). However, a “federal district court
does not have jurisdiction over an FTCA claim unless it was
first . . . presented to the appropriate federal agency . . .
within two years of when the claim accrued.” Allen
v. United States, 590 F.3d 541, 544 (8th Cir.
2009) (citations and quotations omitted).
Plaintiff's Complaint does not allege that she has
exhausted her administrative remedies for purposes of the
Plaintiff had exhausted her administrative remedies, the FTCA
does not waive sovereign immunity for torts “arising
out of . . . misrepresentation [or] deceit, ” 28 U.S.C.
§ 2680(h), which includes fraud claims like the one
asserted here. United States v. Perry, 706 F.2d 278,
279-80 (8th Cir.1983) (dismissing tort counterclaim against
FmHA because Eighth Circuit case law recognizes that 28
U.S.C. § 2680(h) bars tort claims against federal
agencies based on fraud and negligent misrepresentation);
United States v. Longo, 464 F.2d 913, 915 (8th Cir.
1972) (section 2680 specifically bars actions against the
government based on misrepresentation or deceit).
courts have held that 42 U.S.C. § 405(h) bars tort
claims such as fraud from being asserted against the SSA when
the allegations “arise under” the Social Security
Act, such as the wrongful termination of benefits. Here,
Plaintiff's fraud claim directly relates to the SSA's
erroneous distribution of benefits to an unauthorized person
and the SSA's demand for return of benefit
overpayments-allegedly to cover up its fraud. This is exactly
the kind of claim 42 U.S.C. § 405(h) prohibits. See 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
[federal question jurisdiction] ¶ 1346 [Federal Tort
Claims Act] of Title 28 to recover on any claim arising under
this subchapter.”); Schweiker v. Chilicky, 487
U.S. 412, 429 (1988) (holding that § 405(h) prohibited
plaintiffs from bringing action for emotional distress and
loss of necessities caused by improper termination of
benefits); Cunningham v. Social Sec. Admin., 311
Fed.Appx. 90, 92, 2009 WL 175076 (10th Cir. 2009) (42 U.S.C.
§ 405(h) prohibited claim for constructive fraud brought
against SSA after SSA ordered plaintiffs to reimburse SSA for
overpayment) (unpublished); Jarrett v. United
States, 874 F.2d 201, 204-05 (4th Cir.1989) (holding
that § 405(h) bars an action for intentional infliction
of emotional distress caused by wrongful termination of
benefits because such claim arose under the Social Security
Act); Calhoun v. Colvin, No. 5:13-CV-108-D, 2014 WL
4243784, at *19 (E.D. N.C. July 22, 2014), report and
recommendation adopted, No. 5:13-CV-108-D, 2014 WL
4243789 (E.D. N.C. Aug. 26, 2014) (plaintiff's claims
against SSA for negligence, misrepresentation, and
intentional infliction of emotional distress not permitted
under 42 U.S.C. § 405(h)); Greene-Major v.
Comm'r of Soc. Sec. Admin., No. 3:10-1459, 2010 WL
3038319, at *2 (D.S.C. June 17, 2010), report and
recommendation adopted, No. 3:10-1459, 2010 WL 3038430
(D.S.C. July 29, 2010) (42 U.S.C. § 405(h) prohibits
seeking damages against the Commissioner of Social Security
for fraud, among other tort claims).
these reasons, this court lacks subject-matter jurisdiction
over Plaintiff's fraud claim. Because amendment of
Plaintiff's Complaint would be futile, her Complaint must
be dismissed. See Fed.R.Civ.P. 12(h)(3) (“If
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”);
Canady v. I.R.S., No. 14-0952-CV-W-ODS, 2015 WL
1579848, at *2 (W.D. Mo. Apr. 9, 2015) (court lacked
subject-matter jurisdiction over plaintiff's fraud claims
against IRS because plaintiff failed to exhaust
administrative remedies under FTCA and FTCA does not waive
sovereign immunity for fraud claims); Wong v.
Rosenblatt, No. 3:13-CV-02209, 2014 WL 1419080, at *2
(D. Or. Apr. 11, 2014) (any common law tort claim based on
deceit is expressly excluded from the FTCA; given
plaintiffs' allegations of false representations, fraud,
and wrongful possession, none of plaintiffs' claims ...