EFFECTIVE/PUBLICATION DATE: 03/08/88
20 CFR 404.936
Bolinger, et al. v. Schweiker, etc., et al., USDC, Middle District of Florida, Tampa Division, Civ. No. 83-173-Civ-T-15 (11/22/83)
CASTAGNA, District Judge:
The Court has for consideration defendants' motion to dismiss. Plaintiffs have responded to the motion.
This suit is brought on behalf of thirteen present or past claimants seeking disability benefits under the Social Security Act ("the Act"). Each of these plaintiffs is represented by the law firm of Kishner & Castellanos of Fort Myers, Florida. These plaintiffs reside in the Sarasota-Bradenton area, which is approximately 70 miles north of Fort Myers. In order to secure benefits under the Act, these plaintiffs asked the Social Security Administration for Administrative hearings before an Administrative Law Judge (ALJ). Each plaintiff allegedly asked that his or her hearing be located in Fort Myers.
Defendants are members of the Department of Health and Human Services (HHS) which administers the Act. The Office of Hearings and Appeals in Tampa, Florida has jurisdiction over the claims brought by each of these plaintiffs. The defendants allegedly instituted a new rule governing the location of hearings for claimants. Under this rule, claimants living within 75 miles of Tampa would have their hearings conducted in that city. Claimants living more than 75 miles from Tampa could have hearings in Fort Myers. Each of the named plaintiffs lives within 75 miles of Tampa and received notice that their hearings would be conducted in that city. They now claim that this new rule violates their right to counsel of their choice at these hearings. The complaint alleges that this rule was designed to discourage claimants from using the law firm of Kushner & Castellanos by locating hearings in Tampa.
Each plaintiff was notified that his or her hearing would be conducted in Tampa. No plaintiff attended these hearings. Some plaintiffs' claims were dismissed for failure to attend these hearings, and the remaining plaintiffs' claims are allegedly in jeopardy of dismissal.
Defendants argue that this complaint should be dismissed for two reasons. First, they argue that the Court has no jurisdiction over this dispute. Second, defendants contend that this complaint fails to state a claim upon which relief could be granted.
1) 42 U.S.C. § 405(g) -- As the first of two grounds for jurisdiction, plaintiffs allege that this statute permits the Court to hear their claim. This statute generally permits access to a federal court only after an administrative hearing on a claim for benefits under the Act. In Mathews v. Eldridge, 424 U.S. 319 (1975) the Supreme Court crafted a narrow exception to the "after a hearing" requirement of this statute. The parties disagree whether this case falls within that narrow exception.
Mathews involved a constitutional due process challenge to procedures which resulted in the termination of disability benefits. The claimant here had received those benefits for several years. Based on his answers to a medical questionnaire, the relevant agency informed him that his benefits would be terminated unless he applied for administrative reconsideration. Instead of pursuing that administrative path, the claimant in Mathews filed a suit in federal district court under § 405(g), alleging that the termination procedures violated his right to procedural due process. The Supreme Court held he could bring such a suit, even though he had never received a hearing before the Secretary.
The present suit is unlike Mathews in two respects. First, this case involves no constitutional challenge. Instead, plaintiffs base their case on a supposed statutory right to counsel. Second, unlike Mathews, plaintiffs' challenge does not rest on the presumption that subsequent proceedings will be too late to protect their rights. 424 U.S. 331. The claimant in Mathews had already been receiving benefits for several years when the allegedly unconstitutional procedures threatened any future payments. He needed a predeprivation hearing, because his dependence on the benefits meant that an erroneous termination could not be compensated by retroactive payments. Id. Here, no plaintiff yet receives any benefits under the Act. They do not yet have a dependence on these payments which should not be interrupted without adequate procedures.
Although no constitutional challenge is found in the complaint, plaintiffs have raised two new issues in their arguments opposing the motion to dismiss. They argue that defendants' 75 mile rule violates their equal protection rights, as well as being a violation of separation of powers principles. These new issues would be more properly before the Court after an appropriately amended complaint. In order to preserve scarce judicial time resources, and because the parties have adequately argued the issues, the Court will treat these new issues as if included in the complaint. See Czosek v. O'Mara, 397 U.S. 25, 27 (1970).
Plaintiffs' first constitutional challenge is based on the principle of equal treatment protected by the Fifth Amendment. They claim that the 75 mile rule discriminates against them and in favor of claimants who are not affected by the rule. Plaintiffs contend that a claimant living more than 75 miles from Tampa can still be represented by a lawyer who has investigated and done background on a particular case. According to plaintiff's those living less than 75 miles from Tampa must obtain new counsel who are less familiar with their case, thereby enhancing the chance that their claims will be denied.
This equal protection claim cannot survive even the liberal standard of a motion to dismiss for several reasons. First, and foremost, there are no allegations or arguments to the effect that the law firm will no longer represent these plaintiffs simply because hearings are conducted in Tampa. Second, there are no allegations or arguments that other similarly situated claimants receive preferential treatment. Finally, the Court can imagine no way by which plaintiffs could prove that this rule is an irrational classification. This rule is apparently designed to reduce the travel of claimants. Even if these plaintiffs' hearings were conducted in Fort Myers, they would still be required to travel a greater distance than the trip to Tampa. The only persons who would benefit from a repeal of this rule would be plaintiffs' lawyers, who are located in Fort Myers.
Plaintiffs' second new constitutional claim is equally unmeritorious. They seem to argue that a violation of their statutory right to counsel automatically breaches separation of powers principles. As stated above, 42 U.S.C. Section 42(a) does not provide a right to counsel, it merely permits qualified lawyers to appear at hearings. Furthermore, plaintiffs have not cited, nor is the Court aware of any authority for the proposition that a statutory violation by a member of the executive branch violates the separation of powers principle.
2) 28 U.S.C. Section 1361 -- As an alternative basis for jurisdiction, plaintiffs cite this statute, which provides that a federal court may hear an action in the nature of mandamus. Several reported decisions have permitted claimants under the Act to use this statute as a jurisdictional base. Monitor Corporation v. United States, 440 F.Supp. 473 (S.D. Fla. 1977); Kennedy v. Harris, 87 F.R.D. 372 (S.D. Cal. 1980).
Assuming arguendo that plaintiffs could use this statute to invoke the Court's jurisdiction, the complaint fails to state a claim for relief under a mandamus theory. A party seeking a writ of mandamus must have no other adequate means to attain the relief he desires, and he must show that his right to the writ is clear and indisputable. Kerr v. U.S. District Court for the Northern District of California, 426 U.S. 394 (1976). He must show that he has a clear right to the relief sought, and that the defendant has a clear duty to do the act in question. Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969). The complaint contains no allegations that defendants have a duty to schedule these hearings at any particular location. It contains no allegations that plaintiffs have a right to a hearing at any location. Finally plaintiffs have not alleged that all other avenues are closed.
In summary, the complaint does not allege jurisdiction under 42 U.S.C. § 405(g). Even if the constitutional arguments first raised in plaintiffs' memoranda are considered, the complaint fails to state a claim upon which relief can be granted. Conley v. Gibson, 355 U.S. 1 (1955). Assuming that this Court had jurisdiction over this dispute by virtue of the mandamus statute, the complaint still fails to state a claim upon which relief could be granted. Therefore, it is
1. The motion to dismiss in granted and this cause is dismissed.
 In part this statute provides: "Any individual,after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow . . ." (Emphasis added).
 The Court notes that this statute, 42 U.S.C. § 406(a) merely provides that qualified attorneys are entitled to represent claimants. The statute does not give claimants any substantive right to representation by an attorney. Plaintiff's have not cited, nor is the Court aware of any authority for the proposition that they have a constitutional right to counsel in these hearings.
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