United States District Court, N.D. Alabama, Northeastern Division
K. KALLON UNITED STATES DISTRICT JUDGE.
Dwayne O'Neal, proceeding pro se, commenced this
action against the United States of America and Nancy A.
Berryhill, the acting commissioner of the Social Security
Administration (the “Commissioner”), based on
allegations that the defendants have wrongfully withheld
disability benefits he is entitled to receive and refused to
respond to his Freedom of Information Act
(“FOIA”) requests. Doc. 1. This is the second
time O'Neal's claims have come before this court;
O'Neal filed a previous action that the court dismissed
without prejudice for lack of subject matter jurisdiction.
See docs. 47 and 48 in No. 5:18-cv-00479-TMP. Based
upon purportedly newly discovered evidence, O'Neal has
filed this new lawsuit, and has moved for leave to proceed
in forma pauperis. See doc. 3. Consistent
with its obligation to review the complaint of plaintiffs
moving for leave to proceed in forma pauperis,
see 28 U.S.C. § 1915(e)(2), the court finds
that it does not have subject matter jurisdiction over
O'Neal's claims related to his request for disability
benefits and damages, that O'Neal cannot state a viable
FOIA claim against the United States, and that
O'Neal's FOIA's claim against the Commissioner is
moot. As such, O'Neal's claims are due to be
dismissed without prejudice.
STANDARD OF REVIEW
federal district court “‘should inquire into
whether it has subject matter jurisdiction at the earliest
possible stage in the proceedings.'” Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)
(quoting Univ. of S. Alabama v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999)). “If the court
determines . . . that it lacks subject-matter jurisdiction,
the court must dismiss the action.” Fed.R.Civ.P.
12(h)(3). In addition, district courts are required to
dismiss the complaint of any plaintiff proceeding in
forma pauperis if the court determines that the
complaint “(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A
complaint is frivolous when “it lacks an arguable basis
either in law or in fact, ” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), or “when it
appears that ‘the legal theories are indisputably
meritless.'” Ghee v. Retailers Nat'l
Bank, 271 Fed.Appx. 858, 859-60 (11th Cir. 2008)
(quoting Carroll v. Gross, 984 F.2d 392, 393 (11th
Procedural and Factual Background
turning to O'Neal's claims and pending motions, the
court first addresses the procedural history of this action.
O'Neal filed his first application for supplemental
security income (“SSI”) in 1995, which did not
result in an award of benefits. See doc. 1 at 1.
O'Neal filed a second application for SSI in 1999.
Id. at 4-5. An ALJ denied O'Neal's 1999
application, and the appeals council denied review. Doc. 41-1
in No. 5:18-cv-00479-TMP at 3. O'Neal filed a third
application for SSI on November 21, 2001, which the SSA
granted. Id. at 3, 7.
2005, long after filing the third application, O'Neal
initiated an action in this court appealing the decision
denying his 1999 application. Id. at 3. See
also doc. 1 in No. 2:05-cv-02127-VEH. Because the
Commissioner was unable to locate the claim file for the
original hearing on the 1999 SSI application, Judge Virginia
Emerson Hopkins remanded the action to the Commissioner for
reconstruction of the administrative record. Doc. 41-1 in No.
5:18-cv-00479-TMP at 7; Docs. 6 and 7 in No.
2:05-cv-02127-VEH. Ultimately, after a new hearing in
December 2007, an ALJ granted O'Neal's 1999
application for SSI, finding O'Neal disabled and awarding
him retroactive benefits from September 14, 1999, the date of
his second application. Doc. 41-1 in Case. No.
5:18-cv-00479-TMP at 10, 15-16. In reaching that decision,
the ALJ gave great weight to Dr. Kessler, a medical expert
who testified at the December 2007 hearing, and who opined
that O'Neal's depression with psychotic features
meets the criteria of Section 12.03 of the Listing of
Impairments. Id. at 16. Thereafter, Judge Hopkins
affirmed the decision awarding benefits, and entered the
decision as a final judgment pursuant to Rule 58. Doc. 12 in
Case. No. 2:05-cv-02127-VEH. O'Neal did not appeal the
January 2018, the SSA notified O'Neal that it was
conducting a continuing disability review to redetermine
O'Neal's eligibility for SSI, and O'Neal appealed
the SSA's decision. See doc. 1 at 6-7.
O'Neal contends that he learned about his October 1995
application for benefits during a phone call with an SSA
employee on February 22, 2018. Doc. 1 at 9, 13. Based on that
discovery, O'Neal filed a “renewed back pay
petition” with the SSA on March 1, 2018, which the SSA
refused to process. Id. at 7, 9, 11. O'Neal
alleges that the SSA “ignored multiple petitions for
reconsideration and administrative hearings regarding back
pay.” Id. at 9-10. Allegedly, a SSA employee
told O'Neal that the SSA had denied his 1995 application,
he “does not qualify for back pay, ” and his
claims regarding the application were untimely. Id.
at 11. Subsequently, O'Neal filed a motion for relief in
his 2005 action in this court, arguing that he is entitled to
relief from the judgment affirming the award of benefits as
of September 14, 1999, because the Commissioner
misrepresented the date of his first application for
benefits. Doc. 13 in No. 2:05-cv-02127-VEH. Judge Hopkins
denied the motion as untimely. Doc. 20 in No.
2:06-cv-02127-VEH. O'Neal then filed a new lawsuit in
this court, asserting claims against the Commissioner under
the FTCA and FOIA. Docs. 1 and 9 in 5:18-cv-00479-TMP. As
mentioned above, Magistrate Judge T. Michael Putnam dismissed
that action for lack of subject matter jurisdiction. Docs. 47
and 48 in 5:18-cv-00479-TMP.
Claims Related to Social Security Benefits
generally alleges that the defendants wrongfully concealed
his first application for social security benefits, which he
filed in October 1995, and thereby withheld “back
pay” he should have received when the SSA approved his
1999 application for benefits. See doc. 1.
O'Neal further alleges that the SSA refused to process
his March 2018 petition for “back pay, ” or
respond to his requests for reconsideration and
administrative hearings and his “Petition for Response
to Exhaust Administrative Remedies under the FTCA.”
Id. at 7-12, 14. Based on those allegations,
O'Neal asserts claims under the FTCA for negligence,
misrepresentation, fraudulent concealment, and negligent
training and supervision. See Id. at 2-3, 8, 13-14.
For his relief, O'Neal seeks payment of social security
benefits beginning from October 1995, monetary damages, and
an order directing the SSA to correct findings regarding when
his disability began. Doc. 1 at 18.
claims relating to his request for “back pay”
clearly arise from the Social Security Act (the
“Act”). But, as Judge Putnam explained in his
opinion dismissing O'Neal's prior claims:
The [Act] limits the extent to which the court may review
decisions that arise under the Act. 42 U.S.C. § 405(g).
The Act provides that a party may seek judicial review of a
“final decision of the Commissioner of Social
Security” in the District Court within 60 days.
[Id.] The Act further clarifies that § 405(g)
is the sole mechanism under which the court has jurisdiction
to review claims that arise under the Act. See 42
U.S.C. § 405(h); Heckler v. Ringer, 466 U.S.
602, 614-15 (1985). Specifically, the Act forbids any action
brought under 42 U.S.C. § 1331 for any claims arising
under the Act. 42 U.S.C. § 405(h). The Supreme Court has
found that the “arising under language in § 405(h)
is very broad and ‘extends to any ‘action'
seeking ‘to recover on any Social Security Claim' .
. . .” Weinberger v. Salfi, 422 U.S. 749, 762
(1975). This precludes claims brought under the Federal Tort
Claims Act (“FTCA”) where the civil action