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Case l:ll-cv-03698-MKB-LB Document 43 Filed 05/02/13 Page 1 of 11 PagelD #: 169 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 



EUGENE THOMAS, 



Plaintiff, 



SOCIAL SECURITY ADMINISTRATION, 

Defendant. 



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BR OOKtV NOFF)CE 



MEMORANDUM & ORDER 

11-CV-3698 (MKB) 



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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I* Background 

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 

II. Discussion 

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 
Cir. 2000). 

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 
records). 

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 
of mandamus. 

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 
Appeals Council."). 



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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. 

ii. Mandamus 

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. 
III. Conclusion 

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 
this case. 




/S/ Judge Margo K. Brodie 



MARGO K. bÉr6dIE 
Unite i States District Judge 



Dated: May 2, 2013 

Brooklyn, New York 



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