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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SOCIAL SECURITY ADMINISTRATION,
o - a *sas8asR 5/3,15
BR OOKtV NOFF)CE
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Plaintiff Eugene Thomas filed the above-captioned action pursuant to the Freedom of
Information Aet ("FOIA"), 5 U.S.C. § 552(a), seeking information about the appointment of a
guardian ad litem to receive Plaintiff s social security funds, Defendant and Plaintiff both
mo ved for summary judgment The Court heard argument on January 23, 2013. At oral
argument, Plaintiff informed the Court that he also intended to bring a due process violation
claim pursuant to the Fifth Amendment of the United States Constitution. 1 For the reasons set
forth below, Plaintiff s motion for summary judgment is denied, and Defendant' s motion for
summary judgment is granted.
1 In reviewing a pro se complaint, the court must be mindful that the plaintiff s pleadings
should be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (noting that even after Twombly, the court "remain[s] obligated to construe a pro
se complaint liberally"). Therefore, the Court construes Plaintiff s Complaint as having brought
a due process claim predicated on the appointment of a guardian ad litem.
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According to Plaintiff, he first obtained social security benefits in 1986. (PI. lst Summ.
J. 1 .) At some point prior to the appointment of a guardian ad litem, Plaintiff was living in
housing controlled by the New York City Housing Authority ("NYCHA"). 2 (Id.) Plaintiff was
notified on August 24, 1999 that the Human Resources Administration of the City of New
York's Protective Services for Adults ("PSA") planned to ask the Social Security Administration
("SSA") to appoint the Commissioner of the Human Resource Administration to aet as
representative payee of his Supplemental Security Income ("SSI") benefits. (PI. 01/24/2013
Letter Ex. 2.) The SSA notified Plaintiff on September 6, 1999 that a representative payee
would be appointed. (PI. 01/24/2013 Letter Ex. 1.) In the letter, Plaintiff was told that within 10
days the SSA would select a representative payee and he had 60 days to request an appeal of the
decision. (Id.) The PSA thereafter served as Plaintiff s representative payee from September
1999 to September 2000. (PI. 2d Summ. J. Ex. C.) "On September 25, 2000, the New York
Foundation for Senior Citizens (NYFSC) became [Plaintiff s] payee, upon being selected to
serve as his court-appointed legal guardian." (Id.) "In October 2010, legal guardianship of
[Plaintiff] was transferred to his son, Christopher Reese[.]" (Id.)
2 The NYCHA initiated several actions in New York state court against Plaintiff for
failure to pay rent. (PI. lst Summ. J. 1-2; PI. 2d Summ. J. Ex. F.) According to a document
submitted by Plaintiff, in one of those cases, Plaintiff was represented by Brooklyn Legal
Services. (PI. 2d Summ. J. Ex. F.) "The case was settled after [the judge] appointed Ernest
Wilson Esq. as Guardian AdLitem, Protective Services for Adults recommended involuntary
financial management in [his] case, and N.Y.C.H.A. agreed to refer the charge of chronic rent
delinquency to a new administrative proceeding." (Id.) The date of settlement is unclear from
the record. What is clear from the record is that on September 28, 2000, by order and judgment,
the Kings County Supreme Court appointed the New York Foundation for Senior Citizens as
guardian adlitemof the property of Plaintiff. (See Def. 02/13/2013 Letter.)
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"By letter dated April 2, 2010, [P]laintiff requested a copy of a court order dated prior to
October 1, 1999, 'authorizing the seizure of Social Security Disability benefits."' (Def. 56. 1
11.) It is Defendant's best understanding that Plaintiff was "referring to a New York State
Supreme Court order issued prior to October 1, 1999, that resulted in [Defendant] selecting a
representative payee for [P]laintiff s disability insurance benefits." (Def. Summ. J. 1.) "In a
letter dated May 13, 2010, SSA acknowledged the FOIA request." (Def. 56. 1 1 2.) On June 2,
2010, Defendant wrote to Plaintiff that the FOIA request was being referred to the Northeastern
Program Service Center ("NEPSC"), "because it was believed that [P]laintiff s claims folder was
at the NEPSC." (Id. at Tf 3.) NEPSC conducted a search in June 2010 and was unable to find the
order. (Id. atf4.) Plaintiff commenced this action on August 1, 2011. (Id. at U 5.) In
November 201 1, Defendant conducted another search for the order at the NEPSC but could not
find the order. (Id. at f 6.) In December 201 1, Defendant conducted searches in the Social
Security National Records Center and at Plaintiff s local servicing district office and could not
find the order. (Id. at 1 7.) "By a letter dated December 14, 201 1, [Defendant] informed
[P]laintiff that it searched its records and was unable to locate the requested document." (Id. at
a. Standard of Review
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, "there is no genuine dispute as to any material faet and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Redd v. N. Y. Div. of
Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not "to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial."
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Cioffi v. Averill Park Cent. Sch. Dist. Bd. ofEduc, 444 F.3d 158, 162 (2d Cir. 2006) (quoting
Anderson v. Liberty Lobby, Inc., All U.S. 242, 249 (1986)). A genuine issue of faet exists when
there is sufficient "evidence on which the jury could reasonably find for the [non-moving
party]." Anderson, 411 U.S. at 252. The "mere existence of a scintilla of evidence" is not
sufficient to defeat summary judgment; "there must be evidence on which the jury could
reasonably find for the [non-moving party]." Id. The court's function is to decide "whether,
after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a
rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d
b. Freedom of Information Aet
Under the Freedom of Information Aet ("FOIA"), federal district courts have jurisdiction
to prevent an "agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant." Kissinger v. Reporters Comm. for
Freedom ofthe Press, 445 U.S. 136, 139 (1980) (citing 5 U.S.C. § 552(a)(4)(B)). In order for a
federal court to have jurisdiction it must be shown that an agency has "(1) improperly (2)
withheld (3) agency records." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.
1999) (internal quotation marks omitted) (citing U.S. Dep't ofJustice v. Tax Analysts, 492 U.S.
136, 142 (1989)); Romano v. C.I.A., No. 1 l-CV-5944, 2013 WL 210224, at *3 (E.D.N.Y.
Jan. 18, 2013); The Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 355
(E.D.N.Y. 2009). A district court may force disclosure only when all three elements are met.
Grand Cent. P'ship, 166 F.3d at 478 (citing Tax Analysts, 492 U.S. at 142). "When an agency
has demonstrated that it has not 'withheld' requested records in violation of the standards
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established by Congress, the federal courts have no authority to order the production of such
records under the FOIA " Kissinger, 445 U.S. at 139.
The defending agency has the burden of showing that its search was adequate or that the
document is exempt from production under FOIA. Carney v. U.S. Dep 't ofJustice, 19 F.3d 807,
812 (2d Cir. 1994). The main source of proof in a FOIA summary judgment motion is affidavits.
Long v. Office ofPers. MgmL, 692 F.3d 185, 190 (2d Cir. 2012). 3 Factual discovery "relating to
an agency' s search and the exemptions it claims for withholding records generally is unnecessary
if the agency's submissions are adequate on their face." Grand Cent. P'ship, 166 F.3d at 488
(alteration omitted) (citing Carney, 19 F.3d at 812). "[T]o establish the adequacy of a search,
agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith."
Id (alteration, citation and internal quotation marks omitted). It is presumed that affidavits
submitted by the agency were submitted in good faith. Id. After the agency has shown a good
faith adequate search, the plaintiff must show that the agency acted in bad faith or show that any
exemptions claimed by the agency are not appropriate in the case. Anderson v. U.S. Dep Y of
Justice, 326 F. App'x 591, 592-93 (2d Cir. 2009) (citing Carney, 19 F.3d at 812).
"When a plaintiff questions the adequacy of the search an agency made in order to satisfy
its FOIA request," the key question is whether the search "was reasonably calculated to discover
the requested documents," and not whether every document in existence was found by the
search. Grand Cent. P 'ship, 166 F.3d at 489 (alteration and citation omitted); Fox News
Network LLC v. U.S. Dep 't ofThe Treasury, 739 F. Supp. 2d 515, 533 (S.D.N.Y. 2010); see also
3 "An affidavit from an agency employee responsible for supervising a FOIA search is all
that is needed to satisfy Rule 56(e); there is no need for the agency to supply affidavits from each
individual who participated in the actual search." Carney v. U.S. Dep't ofJustice, 19 F.3d 807,
814 (2d Cir. 1994).
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Adamowicz v. I.R.S., 402 F. App'x 648, 651 (2d Cir. 2010) («[A]n agency need not show that its
search uncovered every . . . responsive document [in existence], but only that it 'was reasonably
calculated to discover the requested documents.'"). Defendant engaged in several searches for
the relevant document and describes the search in sufficient detail. (See Deel. Zimmerman.) In
addition, at the Court' s instruction, Defendant searched the Kings County Supreme Court records
for any relevant documents and found that "[b]y Order and Judgment and Commission entered
on September 28, 2000, the New York Foundation for Senior Citizens was appointed Guardian
of the" property of Plaintiff. (See Def. 02/13/2013 Letter.) Defendant has gone above and
beyond meeting its required burden. 4 See Grand Cent. P 'skip, 166 F.3d at 478. Plaintiff s FOIA
claim is dismissed.
c. Due Process
Plaintiff argues that the appointment of a representative payee prior to a court order
violated his due process rights. 5 Plaintiff received notice on September 6, 1999 that a
Defendant's only obligation under FOIA was to search agency records. Grand Cent
P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). "For requested materials to qualify as
4 agency records,' two requirements must be satisfied: (i) an agency must either create or obtain
the requested materials, and (ii) the agency must be in control of the requested materials at the
time the FOIA request is made." Id. at 479 (quoting U.S. Dep 7 ofJustice v. Tax Analysts, 492
U.S. 136, 144-45 (1989)); see also Bloomberg L.P, v. Bd. of Governors of Fed. Reserve Sys.,
649 F. Supp. 2d 262, 272 (S.D.N.Y. 2009), affdsubnom. Bloomberg, L.P. v. Bd. of Governors
of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010) (describing the two-part test for agency
5 The SSA can appoint a representative payee if the "Commissioner of Social Security
determines that the interest of any individual . . . would be served" by the appointment. 42
U.S.C. § 405(j)(l)(A); see also 42 U.S.C. § 1383 (establishing that the SSA can appoint a
representative payee to receive a person's Social Security funds "for the use and benefit of the
individual or eligible spouse). Under the statute, the SSA has the ability to appoint a
representative payee based on its own individual determination and the statute does not require
the Commissioner to obtain a court order to do so. See 20 C.F.R. § 416.601(a) ("A
representative payee will be selected if [the SSA] believe[s] that the interest of a beneficiary will
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representative payee would be appointed. (PL 01/24/2013 Letter Ex. 1.) He was also informed
that within 10 days, the SSA would select a representative payee and that he had 60 days to
request an appeal of the decision. (Id.) There is no indication from the record provided by
Plaintiff that he ever appealed the SSA's determination through the SSA's administrative
procedures. (See Def 02/13/2013 Letter.)
The SSA may distribute a person' s benefits "for [a beneficiary' s] use and benefit to
another individual or entity as the beneficiary's representative payee." 6 Wash. Dep 't ofSoc. &
Health Servs, v. Guardianship Estate ofKeffeler, 537 U.S. 371, 376 (2003) (alteration in
original) (internal quotation marks and citations omitted). A plaintiff seeking to overturn the
SSA's appointment may either seek review of a final determination by the Commissioner
pursuant to 42 U.S.C. § 405(g) or as a writ of mandamus. Keesing v. Apfel, 124 F. Supp. 2d 134,
135 (N.D.N.Y. 2000); Laurie Q. v. Callahan, 973 F. Supp. 925, 929 (N.D. Cai. 1997); see also
Tutuianuv. Cornm'r ofSoc. See, No. 06-CV-2823, 2007 WL 1875556, at *1 (E.D.N.Y. June 29,
2007). Because Plaintiff failed to present his claim to the SSA and to exhaust his administrative
be served by representative payment rather than direct payment of benefits. Generally, [the
SSA] appoint[s] a representative payee if [the SSA] ha[s] determined that the beneficiary is not
able to manage or direct the management of benefit payments in his or her own interest.");
Williams v. Jaudegis, No. 1 l-CV-2408, 2012 WL 3839610, at *2 (D. Kan. Sept. 5, 2012) ("If the
SSA determines that a beneficiary should not receive direct payments, it may appoint a qualified
individual or organization as a representative payee."); Mason v. Sybinski, No. OO-IP-0988, 2001
WL 619389, at *1 (S.D. Ind. May 15, 2001), affd, 280 F.3d 788 (7th Cir. 2002) (" The . . .
SSA decides whether it should appoint a representative payee, and it will do so if it
determines that a beneficiary is not able to manage or direct the management of benefit payments
in his or her interest.")
6 Courts have repeatedly upheld the appointment of states and state agencies as
representative payees. See, e.g, Wash. Dep't ofSoc. & Health Servs. v. Guardianship Estate of
Keffeler, 537 U.S. 371, 389-90 (2003); Gean v. Hattaway, 330 F.3d 758, 770 (6th Cir. 2003);
Mason v. Sybinski, 280 F.3d 788, 794 (7th Cir. 2002).
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remedies, he cannot challenge the SSA's action either pursuant to 42 U.S.C. § 405(g) or as a writ
i. Appeal of Final Determination
A district court may review a "final decision of the Commissioner" pursuant to 42 U.S.C.
§ 405(g), including the determination to appoint a representative payee. See, e.g., Tutuianu,
2007 WL 1875556, at *1; Keesing, 124 F. Supp. 2d at 135; Laurie Q., 973 F. Supp. at 929; see
also Escalera v. Comm > ofSoc. See, 457 F. App'x 4, 5 (2d Cir. 201 1). There are two parts to
the "final decision." Escalera, 457 F. App'x at 5. The first part is a jurisdictional requirement
that cannot be waived, requiring that the plaintiff must have presented his claim to the agency.
Id. The second requirement can be waived and requires a plaintiff to exhaust all administrative
remedies. Id. "The Social Security Aet does not define the term 6 final decision,"' but gives SSA
the power "to set out the procedures for obtaining a final decision." Id. at 6. In Escalera, the
Second Circuit stated:
[T]he Commissioner has devised a four-step process by which a claimant must exhaust
administrative remedies before proceeding to federal court. First, a claimant . . . receives
an initial determination. Second, if a claimant is dissatisfied with the initial
determination, he may seek reconsideration by filing a written request within 60 days.
The reconsideration determination is binding unless a claimant requests a hearing before
an administrative law judge ("ALJ") within 60 days of receiving notice of the
reconsideration determination. If the claimant is dissatisfied with the ALJ' s hearing
decision, he may request review by the Appeals Council within 60 days of receiving
notice of the hearing decision. A claimant may seek an extension of time of any of these
deadlines by showing good cause. The Appeals Council' s decision is considered final,
and a claimant may seek judicial review of that decision in district court.
Id. (citations omitted); see also Norman v. Astrue, No. 10-CV-5839, 2012 WL 4378042, at *2
(S.D.N.Y. Sept. 25, 2012) (describing final determinations by the Commissioner); Maynard v.
Soc. Sec. Admin., No. ll-CV-6046, 2012 WL 2319249, at *3 (E.D.N.Y. June 19, 2012) (same);
Tutuianu, 2007 WL 1 875556, at * 1 (holding that a petitioner must first present his claim that a
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representative payee had been appointed in error to an ALJ then to the Appeals Council); Laurie
Q., 973 F. Supp. at 929 ("[W]here plaintiffs challenge the designation of a representative payee,
plaintiffs must at least show that they have sought reconsideration of the Commissioner's
designation of a particular representative.").
Since Plaintiff has submitted no evidence that he presented his claim to SSA, or that he
exhausted his administrative remedies, this Court lacks jurisdiction pursuant to 42 U.S. C.
§ 405(g) to hear his claim. Escalera, 457 F. App'x at 5 (holding that a plaintiff must at least
present the claim to the agency for there to be jurisdiction); Smith v. Schweiker, 709 F.2d 777,
780 (2d Cir. 1983) (holding that in order for a court to have jurisdiction under § 405(g) the
plaintiff must present the claim to the Commissioner); see also Ingram v. Comm V ofSoc. Sec,
401 F. App'x 234, 235 (9th Cir. 2010) (holding that the district court properly dismissed the
plaintiffs claim that SSA improperly withheld supplemental security income and improperly
assigned a representative payee "for lack of subject matter jurisdiction because [the plaintiff]
failed to exhaust his administrative remedies before seeking judicial review"); Norman, 2012
WL 4378042, at *2 (a final determination is a prerequisite for subject matter jurisdiction); Muniz
v. Astrue, No. 07-CV-1945, 2007 WL 4591259, at *1 (E.D.N.Y. 2007) ("[W]here a claimant has
not received a 'final decision' from the Commissioner, his claim for benefits is unexhausted and
a federal district court is without subject matter jurisdiction to review it."); Keesing v. Apfel, 124
F. Supp. 2d 134, 135 (N.D.N.Y. 2000) ("The requirements of 42 U.S.C. §§ 405(g) and (h) are
prerequisites for subject matter jurisdiction, which plaintiff satisfied once he exhausted his
administrative procedures and obtained a final decision after being denied review from the
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Before Plaintiff can pursue his claim in this Court, he must first present his claim to the
SSA and, if denied, exhaust his administrative remedies. See Norman, 2012 WL 4378042, at *2;
Maynard, 2012 WL 2319249, at *3; Tutuianu, 2007 WL 1875556, at *1 Laurie Q., 973 F. Supp.
at 929. This Court has no discretion to waive the jurisdictional requirement of § 405(g) that
Plaintiff present his claim to the SSA.
A plaintiff may seek mandamus review "to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff." Binder & Binder PC v.
Barnhart, 399 F.3d 128, 133 (2d Cir. 2005) (quoting 28 U.S.C. § 1361); Lutheran Med, 520 F.
Supp. 2d at 419 (quoting 28 U.S.C. § 1361); see also Jones, 526 F. Supp. 2d at 459. Mandamus
"is intended to provide a remedy only if plaintiff has exhausted all other avenues of relief and if
the defendant owes plaintiff a clear non-discretionary duty." Keesing, 124 F. Supp. 2d at 136
(citing Heckler v. Ringer, 466 U.S. 602, 616-17 (1984)); see also Caremark Therapeutic Servs,
v. Thompson, 79 F. App'x 494, 496 (2d Cir. 2003) ("To invoke mandamus jurisdiction, a
plaintiff bears the heavy burden of showing both that all other avenues of relief have been
exhausted and that the defendants have a plainly defined and nondiscretionary duty to perform
the aet in question."); Cintronv. Comm'rofSoc. Sec, Admin.,No. 09-CV-09039, 2011 WL
2791351, at * 14 (S.D.N.Y. July 1, 201 1) (quoting Heckler for the proposition that mandamus
only exists when there are no other remedies), report and recommendation adopted, No. 09-CV-
9039, 2013 WL 208903 (S.D.N.Y. Jan. 18, 2013).
Mandamus is not available to Plaintiff because he failed to exhaust other remedies,
including administrative appeal of the SSA decision. Lutheran Med, Ctr,, 520 F. Supp. 2d at 419
("In order to be entitled to [mandamus] relief . . . , a plaintiff must both exhaust administrative
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remedies, thereby demonstrating he has no adequate remedy at law, and also show that the
defendant had a plainly defined and peremptory duty to perform the aet in question."); Keesing,
124 F. Supp. 2d at 136 (holding that a plaintiff must first exhaust the SSA's administrative
remedies before seeking mandamus). Since Plaintiff is challenging the appointment of a
representative payee, he must first challenge that decision in the SSA administrative process.
Escalera, 457 F. App'x at 7; Keesing, 124 F. Supp. 2d at 136.
For the foregoing reasons, Plaintiff s motion for summary judgment is denied.
Defendant's motion for summary judgment is granted. The Clerk of Court is directed to close
/S/ Judge Margo K. Brodie
MARGO K. bÉr6dIE
Unite i States District Judge
Dated: May 2, 2013
Brooklyn, New York