The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Before the Court is the motion by the Commissioner of Social Security ("the Commissioner") to dismiss plaintiff Jay Thomas's complaint requesting judicial review of the agency's withholding of $732 in Social Security benefits. (Compl., D.E. 1; Def's Br. in Supp. of Mot. to Dismiss ("Mov. Br."), D.E. 10 at 5.)
Thomas's action is nearly identical to two previous suits that he brought in 2008 alleging failure to act on his request for reconsideration of a determination that he performed "substantial" work in 2006 and therefore had been ineligible for some benefits payments that he received. See Compl.; Thomas v. Soc. Sec. Admin., ("Thomas I"), No. 2:08-CV-04341-SRC (Aug. 29, 2008), ECF No. 1; Thomas v. Soc. Sec. Admin. ("Thomas II"), No. 2:08-CV-06082-SRC (D.N.J. Dec. 2, 2008), ECF No.1.) Both of these lawsuits were assigned to Judge Chesler of this District, who dismissed each one, finding that, pursuant to 42 U.S.C. § 405(g) of the Social Security Act, the court lacked subject matter jurisdiction because Thomas had filed suit before exhausting the administrative remedies that would culminate in a "final decision" by the Commissioner that is necessary for obtaining judicial review. (See D.E. 10, exs. 6 and 14.)
As before, Thomas has failed to exhaust the available administrative remedies, and again he skirts this deficiency by arguing that the Commissioner was so dilatory in acting on duplicate requests for reconsideration made in 2007 and 2008 that the delay constitutes "final action subject to judicial review." (See Compl. at 1; Thomas 1, Compl., ECF. No. 1 at 1-2.; Thomas II, Compl., ECF No. 1 at 1 and Amend. Compl., ECF No. 9.) The distinction here is that the Commissioner now has made a determination on Thomas's reconsideration request; it was dismissed in July 2009. The Social Security Administration ("the Administration") notified Thomas of this determination in two letters dated July 22, 2009-two weeks before Thomas filed the present complaint seeking to "compel" judicial action on his reconsideration request. (See D.E. 10, exs. 4 and 15.)
The Commissioner argues that here, as before, Thomas has failed to exhaust the administrative remedies available to him and therefore that the Court lacks subject matter jurisdiction because there is no final decision for the Court to review. (See Mov. Br., D.E. 10.) The Commissioner also contends Thomas fundamentally misunderstands the source of the overpayment in question.
Thomas began receiving disability Social Security benefits in 1995. (Mov. Br. at 1.) In April 2003, the Administration decided that Thomas was no longer disabled because he had been doing "substantial work" since October 2001, and therefore was ineligible for payments made to him since then.*fn1 (D.E. 10, ex.2; Mov. Br. at 1.) The Administration determined that Thomas owed the Social Security Administration $9,085, which Thomas began repaying in installments by monthly deductions from his benefits. (D.E. 10, ex. 17; Mov. Br. at 9; Thomas II, Compl. at 2.) Nothing in the record indicates that Thomas appealed the Administration's 2003 overpayment determination.
In May 2003, the Administration reinstated Thomas's monthly benefits because he no longer was working. Then, in October 2006, the Administration sent Thomas a second notice suspending his benefits payments, after again determining that Thomas had performed work reaching "the substantial gainful level" from July 2006 to September 2006. (D.E. 10, ex. 5.) This resulted in the Administration determining it had overpaid benefits to Thomas of $1,965. (See id., ex. 15.) Shortly thereafter, the Administration reversed its determination, finding that Thomas had not engaged in substantial work during the July 2006 to September 2006 period (id., ex. 7), cancelled the $1,965 overpayment, and informed Thomas that his benefits had been reinstated effective July 2006. (Id., ex. 8.)
Notwithstanding the reversal, Thomas filed a request in August 2007 for reconsideration of the $1,965 overpayment determination, stating that he "did not exceed SGA during the months I worked in 2006." (Compl. at 2; Mov. Br. at 3.; D.E. 10, ex. 9.) According to the Commissioner, Thomas did not receive a response on this reconsideration request because "the matter had already been resolved and benefits had been reinstated effective July 2006." (Mov. Br. at 3.) Having received no response from the Commissioner, Thomas filed a duplicate request for reconsideration in August 2008. Later that same month, and with his reconsideration request still pending, Thomas filed an action in district court seeking judicial review of "an initial decision on an overpayment of $1,965 from wages in 2006." (Thomas I, Compl. at 1.) Judge Chesler dismissed the complaint sua sponte, holding that Thomas had failed to state a valid claim for relief because, "[e]ven if the facts alleged are accepted as true, this Court has no jurisdiction over the claims asserted by Plaintiff because he has not asked this Court to review a final decision by the Commissioner of Social Security." (Thomas I, Order, ECF No. 2 at 2.)
In December 2008, Thomas filed a second action in district court, this time seeking to "compel agency action" under the Administrative Procedures Act, 5 U.S.C. § 701, et seq. (APA) and claiming that the Commissioner "has allowed the 60-day deadline for reconsideration to expire on two occasions" and that this delay "results in final agency decision and is subject to judicial review [under 5 U.S.C. § 702]." (Thomas II, Compl.) Judge Chesler granted the Administration's motion to dismiss, noting that Thomas "appears to have misunderstood the Social Security regulations" and again finding Thomas had failed to show that the Commissioner issued a final decision as required under 42 U.S.C. § 405(g) for judicial review. (Thomas II, Order, ECF. No. 33 at 2-3.)
In August 2008, Thomas filed the current action seeking to compel action by the Commissioner because of delay on his reconsideration request and "disputing [a] social security withholding of $732 . . . from [an overpayment] from July 2006." (D.E. 1.) Thomas's third complaint repeats the same facts (that the withholding of the $732 stems from the 2006 overpayment decision) and similar arguments (that the Court should take jurisdiction over his case because of delay on his reconsideration request) included in his previous complaints. (See Thomas I, Compl.; Thomas II, Compl. at 1-2.) And, as in Thomas II, his present complaint asserts that the Commissioner failed to meet a 60-day deadline for responding to his reconsideration request and therefore he is entitled to review under 5 U.S.C. § 702 of the Administrative Procedure Act.
The main difference between Thomas's three complaints is not one of substance but rather one of timing: By August 9, 2009, when Thomas filed the present action, the Commissioner already had notified him of the dismissal of his reconsideration request. (See D.E. 10, exs. 4 and 15.) Although convoluted, the record before the Court does make clear that the Commissioner's reversal as to the second (2006) overpayment did not affect the earlier determination regarding Thomas's first overpayment, which covered the period from 2001 to 2003 and part of which remains outstanding. (Mov. Br. at 2; D.E. 10, exs. 4, 15 and 17.) As the record shows, on July 22, 2009, the Administration sent Thomas a notice and a separate letter informing him that his reconsideration request had been dismissed.*fn2 The letter, while noting a "delay in responding," stated that, "[a]fter carefully reviewing your Social Security record, we have determined that you were paid correctly for the period of July 2006 through September 2006." (D.E. 10, ex. 15.) The letter further stated that the Administration had "explained, in a Notice of Revised Decision we sent you dated October 23, 2006, that your benefits should continue because you have not performed substantial and gainful activity since 2003." Finally, the letter stated that:
[w]hen your benefits were reinstated in February 2007, the overpayment of $1,965 for July 2006, August 2006 and September 2006 was removed from your Social Security disability record. There was, however, still an overpayment balance on your record from a previous overpayment . . . [which] is ...