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Derricott v. Koch

United States District Court, D. Maryland, Southern Division

July 20, 2015

DENNIS DERRICOTT, SR., Plaintiff,
v.
NORA KOCH and CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendants.

REPORT AND RECOMMENDATION

THOMAS M. DiGIROLAMO, Magistrate Judge.

Plaintiff pro se filed this tort action in state court against Nora Koch, Regional Chief Counsel for the Social Security Administration, and Carolyn W. Colvin, the Acting Commissioner of Social Security. Defendants then removed this action to this Court and now seek to substitute the United States as the party defendant and to dismiss this case for lack of subject-matter jurisdiction. ECF No. 14. Under Standing Order 2014-01, this matter has been referred to the undersigned for pretrial management and for proposed findings of fact and recommendations under 28 U.S.C. § 636(b)(1)(B) and L.R. 301(5)(b)(ix). No hearing is necessary. L.R. 105(6). For the reasons that follow, it is RECOMMENDED that the United States be substituted as the party defendant, that Defendants' Motion to Dismiss (ECF No. 14) be GRANTED, and that the case be DISMISSED.

BACKGROUND

For purposes of considering Defendants' Motion to Dismiss, the Court accepts the facts alleged in Plaintiff's Complaint as true. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff Dennis Derricott, Sr., filed this action in the District Court for Montgomery County on September 5, 2014. Compl., ECF No. 2. On the form provided by the district court, Plaintiff named as Defendants Nora Koch, Regional Chief Counsel for the Social Security Administration (the "SSA"), and Carolyn W. Colvin, Acting Commissioner of Social Security (the "Commissioner"). Id. Plaintiff alleged that "Social Security Admin. Disability discriminated against me because of my disabilities by sending me to doctors not to examining [sic] for my disabilities which is a violation against the American Disability Act." Id. "As a disable [sic] American I have a right to benefits under the ADA Title II." Id. Plaintiff sought $5, 000 in damages. Id. On October 15, 2014, Defendants removed the action to this Court under the Westfall Act, which provides:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

28 U.S.C. § 2679(d)(2); see also Notice of Removal, ECF No. 1.

On November 21, 2014, Defendants filed a Motion to Substitute the United States as Defendant and Motion to Dismiss (ECF No. 14) with a supporting Memorandum (ECF No. 14-1). Defendants seek to substitute the United States as the party defendant under 28 U.S.C. § 2679(d)(2). Defendants further seek to dismiss this case under Fed.R.Civ.P. 12(b)(1) because of Plaintiff's failure to exhaust his administrative remedies pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 2675(a), and to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). On December 8, 2014, Plaintiff filed a Response to Defendants' Motion to Dismiss. Pl.'s Resp., ECF No. 16. In his Response, Plaintiff states that "[t]his case is about SSA discriminating against [him], because of his disabilities, by sending him to doctors, that did not examining [sic] him for his disabilities." Id. ¶ 1. "By their acting, SSA violated TITLE: II of the ADA Act, and his civil rights, the 14th Amendment." Id. ¶ 2. Defendants did not file a reply.

STANDARD OF REVIEW

Motions to dismiss for lack of subject-matter jurisdiction are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that subject-matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, 945 F.2d at 768; see Gilbert v. Freshbikes, LLC, 32 F.Supp. 3d 594, 599 (D. Md. 2014); Fletcher v. Soc. Sec. Admin., Civil Action No. DKC 09-1188, 2010 WL 147800, at *2 (D. Md. Jan. 11, 2010).

DISCUSSION

This Court recently addressed similar motions filed by Defendant Colvin in another matter involving Plaintiff in Derricott v. Colvin, No. PWG-14-1996, 2015 WL 1268177 (D. Md. filed Mar. 18, 2015). In light of Derricott, and as discussed below, the United States should be substituted as the party defendant. Further, to the extent that Plaintiff alleges a claim under the FTCA, the Court should dismiss his Complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction. Alternatively, to the extent that Plaintiff seeks judicial review of the Commissioner's denial of his application for disability benefits, the Court should dismiss Plaintiff's Complaint under Rule 12(b)(1) for his failure to exhaust his administrative remedies pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

A. The United States Should Be Substituted as the Party Defendant

"The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 229, 127 S.Ct. 881, 887 (2007) (citing 28 U.S.C. § 2679(b)(1)). Under the Westfall Act, "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, " any civil action in a state court immediately may be removed to a federal district court and the United States substituted as the party defendant. 28 U.S.C. § 2679(d)(2). "This certification of the Attorney General shall conclusively establish scope of office or employment for the purposes of removal." Id. Once the United States is substituted as a party, an action under the FTCA, id. §§ 1346(b) & 2672, is the sole remedy available to a plaintiff, "exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim." Id. § 2679(b)(1); see Derricott, 2015 WL 1268177, at *2.

Here, Defendants indubitably are federal employees. The United States Attorney (as the Attorney General's designee) has provided a freestanding certification that Defendants Koch and Colvin were acting in the scope of their employment in allegedly discriminating against Plaintiff on the basis of his disabilities. Defs.' Mem. Supp. Mot. to Dismiss Ex.1, ECF No. 14-2. Moreover, the Notice of Removal asserts that, "at the time of the alleged incident, Defendants were acting within the scope of their employment as employees of the United States." Notice of Removal ¶ 6, ECF No. 1. The Court should find that the United States Attorney's certification is sufficient certification for the purposes of the Westfall Act. Plaintiff has not disputed that Defendants were acting in the scope of their employment, nor does it appear that he could do so in light of the fact that he alleges tortious actions by the "Social ...


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