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October 30, 1995

SHAWN R. HINES, Plaintiff,

The opinion of the court was delivered by: CHESLER

Report and Recommendation

 STANLEY R. CHESLER, U.S. Magistrate

 I. Introduction.

 This matter comes before the Court on the motion of the Federal Defendants *fn1" to dismiss the complaint or for summary judgement. This matter was referred to the undersigned by the Honorable Maryanne Trump Barry, U.S.D.J. No oral argument was heard, pursuant to Fed.R.Civ.Pro. 78. For the reasons stated below, it is recommended that the motion be granted.

 II. Background.

 The facts in this case are as follows. Plaintiff Shawn Hines was apparently hospitalized for psychiatric problems in February, 1994, following an incident with the Dean of the law school he had attended for several years. (Report of Dr. Edward R. Tabbanor, New Jersey Dept. of Labor, Div. of Disability Determinations, of Oct. 18, 1994 at 1 [hereinafter "Tabbanor Rept."].) This incident led to his expulsion from law school. (Id. at 2.) Mr. Hines' mother, attorney Sharon [Hines] Wade-Spearman, requested at that time that social security benefits be paid on behalf of her son and that she be named his representative payee to receive the payments. (Application for Supplemental Security Income of Feb. 24, 1994, attached to Declaration of Kenneth Kuiken as exhibit 1.) These benefits were denied, partly due to the fact that Mr. Hines refused to be examined by a Social Security physician. (Declaration of Kenneth Kuiken, Assistant District Manager, Irvington Social Security Administration office at P 6 [hereinafter "Kuiken Decl."] .)

 On September 8, 1994, Plaintiff Hines was mugged. *fn2" On September 12, 1994, Ms. Wade-Spearman filed a request that the Social Security Administration [hereinafter "SSA"] reconsider their former denial of payments to her son, Plaintiff Hines. (Request for Reconsideration of Sept. 12, 1994, attached to Kuiken Decl. as exhibit 2.) The reconsideration was granted, and Mr. Hines was examined for the SSA by Dr. Tabbanor on October 18, 1994. Dr. Tabbanor determined that Plaintiff Hines was "competent to manage his own benefit payments." (Tabbanor Rept. at 4.) A non-examining doctor reviewed Dr. Tabbanor's report and determined that Mr. Hines was disabled for the purpose of receiving benefits and "was capable of handling his own benefits." (Kuiken Decl. at P 8.) The date of this determination is unclear.

 Ms. Wade-Spearman, however, was concerned about her son's ability to manage his finances and discussed her concerns with defendant Vivianne Reilly, a Claims Representative assigned to the SSA Irvington District Office. On January 6, 1995, Ms. Wade-Spearman again requested that she be named her son's representative payee. (Id. at P 9.) Benefit payments had not yet begun. (Pl's Mem. of Law in Opp'n to Def. SSA's Mot. for Summ. J at 2 ("I began receiving social security payments in February of 1995.") [hereinafter Pl's Mem.].)

 Mr. Hines became aware of his mother's request that she be named his representative payee, and on January 9, 1991, informed Defendant Carmine Bertoldo, another Claims Representative assigned to the SSA Irvington District Office, of his objections. (Kuiken Decl. at P 10.) Defendant Bertoldo therefore prepared a Physician's/ Medical Officer's Statement of Patient's Capability to Manage Benefits form and, despite Plaintiff Hines' request the he be permitted to hand-carry the form to his doctor, Defendant Bertoldo mailed it to Defendant Irvington Counseling Center on January 10, 1995. (Id. at P 12.) The form was completed by Dr. B. Chernin, a psychiatrist at the Irvington Counseling Center, on January 31, 1995. Dr. Chernin indicated that "client is manifesting Chronic Paranoid Schizophrenia symptomology and without medication is unable to make appropriate decisions and judgments about use of money." (Physician's/ Medical Officer's Statement of Patient's Capability to Manage Benefits form, January 31, 1995, at 2, attached to Kuiken Decl. as exhibit 10 [hereinafter "Capability Form"].) Plaintiff Hines contends that Dr. Chernin "had seen [the plaintiff] on one or possibly two occasions prior to being [asked by the SSA to determine] whether I should be able to receive my benefits directly." (Compl. at P 8.)

 On the basis of Dr. Chernin's report, Ms. Wade-Spearman was named as Plaintiff Hines' representative payee. Mr. Hines signed a form stating


I understand and agree with the following . . . SSA has selected Sharon Spearman to be my representative payee . . . . I understand that I have the right to appeal SSA's decision. I can appeal the choice of who will be the representative payee. . . . I understand that I must file an appeal within 60 days. . . . I have to ask for the appeal in writing. I will contact an SSA office if I wish to appeal.

 (SSA Form 4164(9-94), dated 1-31-95, attached to Kuiken Decl. as exhibit 13.)

 Social Security payments began to Mr. Hines in February, 1995. Mr. Hines alleges that his mother refused to disburse money to him when he needed it, that he had insufficient funds to eat and, as a result, he lost his apartment, his bed, and his refrigerator. (Pl's Mem. at 2.) On February 21, 1995, Mr. Hines went to the SSA and requested that he be named his own payee. (Kuiken Decl. at P 14.) A second "capability form" was forwarded to the Irvington Counseling Center requesting that a physician there re-evaluate Mr. Hines' ability to manage his finances. (Id. at P 15.) The Counseling Center failed to return this second form. (Id.)

 Mr. Hines returned to the SSA on February 26, 1995 and gave Mr. Kenneth Kuiken, Assistant District Manager of the Irvington Social Security Office, a copy of a Summons and Complaint dated January 24, 1995. (Id. at P 17.) According to Mr. Kuiken, he received only one copy of the Summons and Complaint, which was addressed to the Irvington Office and to defendants Reilly and Bertoldo.

 Mr. Kuiken took it upon himself to interview Mr. Hines at length on February 27, 1995 and March 16, 1995, following which he made a lay determination that Mr. Hines was capable of receiving his benefits directly. (Id. at PP 19-20.) Benefits were thus paid directly to Mr. Hines commencing April, 1995. (Id. at P 21.) Ms. Wade-Spearman did not object to this arrangement when Mr. Kuiken informed her of the change. (Id. at P 22.)

 According to Mr. Kuiken, a sheriff's deputy delivered summonses and complaints to the Irvington SSA District Office on April 4, 1995. (Id. at P 23.) One was addressed to "Irvington Social Security, Mr. Bertaldi[sic], Ms. Riley [sic]," and two others were addressed to the Irvington Counseling Center and their defendant employees, and to Alvin *fn3" and Sharon Spearman. (Id.) The later two were returned to the plaintiff. (Id.). Plaintiff contends that he sent three summonses and complaints, each addressed to the three Federal Defendants, to the Irvington Office. (Hines Ltr. at 4-5.)

 Plaintiff's complaint alleges various causes of action against the various defendants. The claims against the Federal Defendants are: count one, which appears to allege violations of 42 U.S.C. §§ 1982, 1983 and 1985 by defendant Reilly, count five, which alleges violations of those sections by defendant Bertoldo, and count seven which claims that the Social Security Agency [sic] is "liable for the wrongs of its employees under the theories of respondeat Superior and vicarious liability." (Compl. at P 42.)

 III. Discussion

 The Federal Rules of Civil Procedure provide for motions to dismiss a complaint for "(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person . . . [and] (6)failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(1)-(2), (6). Federal Defendants herein have moved to dismiss Plaintiff Hines' complaint under these sections.

 A. Subject Matter Jurisdiction

 Federal courts are not courts of general jurisdiction and may only hear cases which are before them under the authority of Article III of the Constitution or under statutes enacted by Congress under that Article. Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986). Federal courts have subject matter jurisdiction over a case if it satisfies federal question jurisdiction under 28 U.S.C. § 1331, or diversity jurisdiction under 28 U.S.C. § 1332. Hunter v. Greenwood Trust Co., 856 F. Supp. 207, 211 (D.N.J. 1992).

 "Federal question jurisdiction exists if the action 'arises under' the 'Constitution, laws or treaties of the United States." United Jersey Banks v. Parell, 783 F.2d 360, 365 (3d Cir.), cert. denied, sum nom. First Fidelity Bancorporation v. Parell, 476 U.S. 1170, 106 S. Ct. 2892, 90 L. Ed. 2d 979 (1986) (citing 28 U.S.C. § 1331). "Claims are deemed to arise under federal law for jurisdictional purposes if resolution of a federal question necessarily plays a significant role in the proceedings." Rosenberg v. AT&T Employees Fed. Credit Union, 726 F. Supp. 573, 576 (D.N.J. 1989). "The federal question must appear on the face of the complaint. . . . Federal jurisdiction cannot be created by anticipating a defense based on federal law." Parell, 783 F.2d at 365.

 "A Federal court has broad power to decide whether it has jurisdiction to hear a case and may make factual findings which are decisive to the issue of jurisdiction. The burden of demonstrating the existence of Federal jurisdiction is on the party seeking to invoke it." Biase v. Kaplan, 852 F. Supp. 268, 285 (D.N.J. 1994)

 Even if a federal question is apparent from the face of the complaint, as here, where the plaintiff has asserted Federal causes of action under 42 U.S.C. §§ 1981, 1983 and 1985, the Court's jurisdiction to hear the complaint could be limited by other factors, such as immunity. Biase, 852 F. Supp. at 285 (case barred by sovereign immunity would be dismissed under Fed.R.Civ.P. 12(b)(1)).

 1. Sovereign Immunity

 Under the doctrine of sovereign immunity, "the United States may not be sued without its consent and the existence of such consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). A suit against a Federal agency is a suit against the United States for the purposes of sovereign immunity. Biase, 852 F. Supp. at 277. A suit filed against a Federal officer in his or her official capacity is actually a suit against the United States. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) ("a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.") "In deciding whether an action is in reality one against the Government, the identity of the named parties defendant is not controlling; the dispositive inquiry is 'who will pay the judgment?'" Stafford v. Briggs, 444 U.S. 527, 542, 100 S. Ct. 774, 63 L. Ed. 2d 1 (1980). Therefore, because the plaintiff here has sued the SSA, a Federal agency and the SSA employees in their official capacities, (Compl. at P 41.), this case must actually be considered a suit against the United States and sovereign immunity applies.

 "The United States' consent to be sued must be express in order to constitute a waiver of sovereign immunity." Biase, 852 F. Supp. at 278. Neither § 1981 nor § 1985 contain express consents to suit by the United States, nor contain any other waiver of sovereign immunity. See 48 U.S.C. §§ 1981, 1985. "It has, in fact, been consistently held that neither section 1985 nor any other provision of the Civil Rights Act may provide the basis for an action against the United States or a Federal agency." Biase, 852 F. Supp. at 280. It should be noted that no suit may be maintained against any Federal defendant under § 1983 in any case, because that section specifically requires state action and none has been alleged here. See 48 U.S.C. § 1983; Pl's Compl. Therefore, because sovereign immunity applies to all the Federal defendants, Plaintiff Hines may not sustain a suit against either the SSA itself or the SSA employees sued in their official capacity, and his complaint should be dismissed under Fed.R.Civ.P. 12(b)(1).

 2. The possibility of a "Bivens" action

 It should be noted, however, that sovereign immunity does not bar a suit against the SSA employees in their individual capacities. Bivens v. Six Unknown Named Agents, etc., 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); Hayes v. FBI, 562 F. Supp. 319, 322 (S.D.N.Y. 1983). In Bivens, the Supreme Court allowed constitutional tort actions against individual Government officials. Bivens, 403 U.S. at 410 (Harlan, J., concurring). The Bivens Court acknowledged, however, that sovereign immunity barred such suits against the Federal agency. Id. Therefore, Plaintiff Hines could theoretically amend his complaint or otherwise re-plead his case against the SSA employee defendants in their individual capacities in an attempt to generate proper subject matter jurisdiction for his case.

 This attempt would not be successful, however, because of a later case which created an exception under Bivens. In Schweiker v. Chilicky, 487 U.S. 412, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988), the Court declared that "when the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." Id. at 423. The Schweiker Court was evaluating an allegation of wrongfully denied disability benefits. Id. at 417-18. The Court determined that Congress provided elaborate and comprehensive administrative remedies for allegedly harmful SSA actions, including an internal appeal process and eventual access to the district courts. Id. at 424. The Social Security Disability Benefits Reform Act of 1984, 42 U.S.C. 405 et. seq. [hereinafter "The Act"], provides for civil actions "after any final decision of the Secretary made after a hearing. " 42 U.S.C. 405(g) (emphasis added). "The Act, however, makes no provision for remedies in money damages against officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits," Schweiker, 487 U.S. at 424, the wrong at issue in Schweiker, or for unconstitutional conduct that leads to precluding the individual from collecting their own benefits or for delaying the collection procedure, the other wrongs alleged by Plaintiff Hines in the instant case.

 As noted previously, Plaintiff Hines acquiesced in the appointment of his mother as his representative payee by signing the SSA form, and was made aware of the availability of an appeals process. As far as Plaintiff Hines' claim that SSA employee Mr. Bertoldo's "actions caused the plaintiff to be denied benefits," (Compl. at P 27.), and his claim that SSA employee Ms. Reilly "caused withholding of benefits," (Id. at P 5.), there are administrative procedures which should have been followed to rectify these wrongs. 42 U.S.C. 405(g). Mr. Hines claims that he "sat with a worker and informed him that [he] wanted [his] case reviewed." (Hines Ltr. at 2.) He indicated that he "chose case review, the social security office never decided [his] case." Id. Be that as it may, 1) § 405(g) only provides for district court review of final SSA decisions and there is no final decision in this matter and 2) the Act does not provide for money damages, as the instant suit requests, against social security officials who cause constitutional harm. Schweiker, 487 U.S. at 424. Schweiker controls. This Court can not grant itself jurisdiction over a matter where none has been provided for by Congress.

 IV. Conclusion

 This Court does not have subject matter jurisdiction over this suit as currently plead, and repleading against the Federal Employee Defendants in their individual capacities would not withstand the holding in Schweiker. A suit against the Federal Employee Defendants in their individual capacities would still need to be dismissed. Therefore, this Court recommends that the complaint be dismissed as against the Federal defendants: the SSA and the SSA employees Reilly and Bertoldo.

 The Court need not reach the other issues raised by the defendants because of the recommendation that this complaint be being dismissed under Fed.R.Civ.P. 12(b)(1).

 The parties are reminded that, pursuant to Local Rule 40D(5), they have ten (10) days from the issuance of this Report and Recommendation to file and serve objections to it.


 U.S. Magistrate Judge

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