1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 COLLEEN M. COURTNEY, Case No. 1:18-cv-01244-SAB

12 Plaintiff, ORDER REQUIRING COMMISSIONER OF

SOCIAL SECURITY TO FILE

13 v. ADMINISTRATIVE RECORD OR

RESPONSIVE PLEADING WITHIN SIXTY

14 COMMISSIONER OF SOCIAL DAYS AND DENYING PLAINTIFF’S

SECURITY, REQUEST FOR A SUBPOENA

15 Defendant. (ECF No. 21) 16 17 On September 13, 2018, Colleen M. Courtney (“Plaintiff”), proceeding pro se and in 18 forma pauperis, filed this action seeking judicial review of a decision of the Commissioner of 19 Social Security (“Commissioner” or “Defendant”). On February 19, 2019, the Commissioner 20 moved to dismiss the action for lack of jurisdiction due to failure to obtain a final decision 21 concerning the overpayment of Social Security benefits. On March 26, 2019, findings and 22 recommendations issued recommending granting the motion to dismiss. The district judge 23 adopted the findings and recommendations on April 29, 2019, and judgment was entered in favor 24 of the Commissioner. 25 Plaintiff filed a notice of appeal on May 9, 2019, and on October 23, 2020, the Ninth 26 Circuit Court of Appeal reversed. The mandate issued on December 15, 2020. 27 In the remand order, the Ninth Circuit found that “[t]he district court dismissed Courtney’s action for lack of subject matter jurisdiction because it concluded that Courtney 1 failed to exhaust administrative remedies. However, the district court treated Courtney’s action 2 as a challenge to the denial of SSI benefits rather than one alleging unauthorized recovery of 3 overpayments.” (Memorandum, 2, ECF No. 41.)

4 Under 42 U.S.C. § 404, the SSA is prohibited from recovering overpayments made to a beneficiary until the SSA makes a pre-recoupment decision on the 5 beneficiary’s written reconsideration request and after an oral hearing on a request to waive recoupment. See Califano v. Yamasaki, 442 U.S. 682, 693-94 (1979). 6 Moreover, if the SSA recovers an overpayment without rendering a decision on a claimant’s preliminary request to waive recoupment, the jurisdictional 7 requirements of 42 U.S.C. § 405(g) are met and an action in federal court can proceed. See id. at 706. 8 9 (Memorandum, 2, ECF No. 41.) 10 The Ninth Circuit found that the record was insufficiently developed and suggested that 11 the Court reconsider Plaintiff’s request for discovery of the SSA’s records into her 12 correspondence with the agency. (Id. at 3.) 13 The recovery of overpayments made to a beneficiary under old-age, survivors’, or 14 disability insurance programs of the Social Security Act are authorized by 42 U.S.C. § 404(a)(1). 15 Califano, 442 U.S. at 684. Section 404 “permits the Secretary to recoup erroneous 16 overpayments by decreasing future payments to which the overpaid person is entitled.” Id. 17 In Califano, the Supreme Court addressed the issue of what was required to comply with 18 the jurisdictional requirement for a recoupment claim to be a final decision. Id. at 704. The 19 district court had certified a class action that was too broad because it included individuals who 20 had not filed requests for reconsideration or waiver in the past and would not do so in the future. 21 As to them, no ‘final decision’ concerning the right to a prerecoupment hearing has been or will 22 be made.” Id. at 704. Since the procedure for claiming waiver involves a beneficiary filing a 23 written request with the Secretary, the court did not have jurisdiction over those claimants that 24 had failed to do so. Id. at 704; see also Scott v. Comm’r of Soc. Sec. Admin., No. 5:02-CV-581, 25 2002 WL 31164581, at *6 (N.D.N.Y. Sept. 30, 2002) (“Whether an overpayment must be repaid 26 is considered an initial determination subject to administrative and judicial review. See 20 27 C.F.R. § 416.1402(c).” However, due to failure to request a hearing before an administrative 1 not meet jurisdictional requirement of 42 U.S.C. § 405(g).). In other words, to meet the 2 jurisdictional requirement that the decision must be final, the claimant must have filed a written 3 request for reconsideration or a written request for waiver of recoupment with the Secretary. See 4 also Heckler v. Ringer, 466 U.S. 602, 604 (1984) (Because the plaintiff has not given the 5 Secretary an opportunity to rule on a concrete claim for reimbursement, he has not satisfied the 6 non-waivable exhaustion requirement of § 405(g)); Bulletti v. Astrue, No. 12-682 MEJ, 2012 7 WL 4120536, at *5 (N.D. Cal. Sept. 19, 2012) (failure to completed the agency’s review process 8 precludes judicial review under § 405(g)). 9 In the motion to dismiss, Defendant submitted a declaration asserting that Plaintiff did 10 not present a written reconsideration request. Therefore, based upon the standard set forth in 11 Califano, a further motion to dismiss addressing the correct standard may be appropriate in this 12 matter. 13 Additionally, the Circuit directed the court to reconsider Plaintiff’s request for a 14 subpoena seeking recordings of two phone calls that were placed on Wednesday, January 30, 15 2019 at 10:00 to 10:15 a.m. and 10:12-10:30 a.m. As this Court previously held, appeals in 16 Social Security cases are generally limited to review of the administrative record and discovery 17 is not allowed. (Order Denying Plaintiff’s Request for Subpoena, 2-3, ECF No. 22.) Discovery 18 is available in limited circumstances where necessary to develop the record. Shalala v. Illinois 19 Council on Long Term Care, Inc., 529 U.S. 1, 24 (2000). The Third Circuit has recognized that

20 while the regulations governing Social Security claim hearings provide for the issuance of subpoenas, they make no provision for discovery. See 42 U.S.C. § 21 405(d). The Social Security Act contains no provision for pre-hearing discovery, and the Administrative Procedure Act does not provide for it. Thus, like most 22 federal administrative proceedings, no pre-hearing discovery is normally available. The provision in section 405(g) authorizing orders for the taking of 23 additional testimony should not, in our view, be construed as a means whereby the discovery provisions of the Federal Rules of Civil Procedure may be imported 24 into the administrative adjudication scheme of the Act. 25 Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1984). 26 Since “judicial review in cases under the Social Security Act is limited to a review of the 27 administrative record for a determination of whether the Commissioner’s decision is supported 1 | “where the express purpose of discovery is to place before the court, for its evaluation of the 2 merits of the administrative decision, additional evidence bearing on the issues adjudicated 3 | therein, such discovery is not proper[,]” Dawson v. Bowen, 136 F.R.D. 618, 620 (S.D. Ohio 4 | 1988), amended sub nom. Dawson v. Sullivan, 136 F.R.D. 621 (S.D. Ohio 1991). 5 In this instance, Plaintiff is seeking copies of two recordings of phone calls placed on 6 | January 30, 2019 to the Social Security Department. (Subpoena in a Civil Case, ECF No. 21.) 7 | While Plaintiff is not seeking discovery that would go to the merits of the review, the records of 8 | telephone conversations on January 30, 2019, are irrelevant to any issue to be decided in this 9 | action. Here, in order to establish that this Court has jurisdiction under section 405(g), Plaintiff 10 | must show that she submitted a written reconsideration request or made a written request to 11 | waive recoupment. 20 C.F.R. § 416.1409(a); Califano, 442 U.S. at 704. Therefore, whether 12 | Plaintiff called the Social Security Office on January 30, 2019, would not address whether she 13 | filed a written request for reconsideration or a request for a waiver of recoupment. Accordingly, 14 | Plaintiff's request for a subpoena is denied. 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. The Commissioner of Social Security shall file the administrative record or a 17 responsive pleading within sixty (60) days of the date of entry of this order; 18 2. Plaintiffs request for a subpoena, filed March 8, 2019 is denied; and 19 3. The parties are directed to the scheduling order and informational order for pro se 20 litigants that were issued on September 14, 2018. 21 IT IS SO ORDERED. F- 2 ee 23 | Dated: _December 17, 2020_ Of

UNITED STATES MAGISTRATE JUDGE

25 26 27 28