UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

THEO BURNETTE 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Commissioner 

Social Security Administration, LUCINDA E. 

DAVIS, Office of the General Counsel, and 

SOCIAL SECURITY OFFICE FOR 

MEDFORD, OREGON, 

Defendants. 

COFFIN, Magistrate Judge: 

6: 15-cv-840-TC 

FINDINGS & RECOMMENDATION 

Pro se plaintiff, Theo Burnette, brings this action asse1iing a negligence claim in the handling 

of an alleged overpayment to him by officials with the Social Security Administration after he raised 

a complaint regarding the handling of his son's benefits: 

I called the Medford Office at the insistence of my 11 year old son stating that his 

mother who was the payee was not using his money properly that he receives from 

my disability. I brought it to the attention of the Medford Office asking if they could 

do a little more checking rather than having her fill out the normal yearly form. They 

seemed disturbed by this request and I heard in the background "who am I to question 

them and their procedures." The next thing I know, I was informed there was an 

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overpayment on my account. This information was eventually sent to the Yamhill 

Office in Portland. I was prompted by Social Security if needed, to secure an 

attorney and together we filled out their paperwork to send to the Yamhill office to 

develop a payment plan based on my income and bills. The Yamhill office never 

responded to my attorneys calls nor mine and took it upon themselves to take three 

months of income which totaled $4700.00 dollars. I then filed a congressional 

complaint through Senator Wyden's office who called and set up a payment 

arrangement with them. This was done in lieu of a hearing to appear before an ALJ 

on February 25, 2014, and he ruled on March 22, 2014 favorable to me. 

Complaint (#1) at p. 3. 

Plaintiff seeks $17,991.44 for alleged losses to his retirement fund and $1500 in attorney 

fees. 

The Social Security Administration does not dispute that it incorrectly determined that 

plaintiff was overpaid and wrongly withheld benefits as a result. However, following the 

Administrative Law Judge's decision, the Administration refunded the amount incorrectly withheld. 

Thus, at best, plaintiff seeks economic losses beyond the withheld benefits. There is no basis for the 

court to award such remedy. 

Plaintiff began receiving disability benefits on June 1, 1991. 1 On September 24, 2011, the 

Administration informed plaintiff that he had been overpaid benefits in the amount of $15,4 3 8 from 

May 1, 2008 to February 28, 2009. As a result, the Administration withheld all of plaintiffs July, 

August, and September 2012 disability payments and planned to withhold $3 36 a month for the next 

32 months. The Administration had determined plaintiff exceeded the trial work period (TWP) 

earnings ceiling, but the ALJ found that plaintiff had exceed TWP earning for only seven months, 

two months less than allowed before plaintiff reached full retirement age. 

'Although the complaint omits many of the background facts, plaintiff does attach the 

administrative law judge's decision and that document provides background factual material. 

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In April of 2014, the Administration refunded the withheld amount in full and restored his 

monthly benefit. On October 20, 2014, plaintiff submitted an administrative claim to the 

Administration seeking $17 ,991.44 "plus interest and dividends, and early withdrawal fees accrued." 

Plaintiffs request was based on his resort to personal retirement funds to live on during the 20 

month period his benefits were reduced. Plaintiff specifically asserted that he was forced to draw 

on his retirement investment account because of negligence by social security. In a letter dated, 

January 26, 2015, the Administration denied the claim because: (1) there is no evidence of a 

negligent act or omission by an employee of the United States acting in the course and scope of his 

or her employment sufficient for liability under the Federal Tort Claims Act (FTCA); (2) the Social 

Security Act precludes any recovery for any claims arising under the Social Security Act; and (3) any 

claim under the FTCA is time-barred. Plaintiff then filed this action. 

Defendants now move to dismiss asserting that the court lacks subject matter jurisdiction 

and/or because the applicable statute of limitations precludes this action. 

A. Subject Matter Jurisdiction 

To the extent plaintiff resorts to the Social Security Act as a basis for jurisdiction, 42 U.S.C. 

§ 405(h) provides that 

The findings and decision of the Commissioner of Social Security after a hearing 

shall be binding upon all individuals who were parties to such hearing. No findings 

of fact or decision of the Commissioner of Social Security shall be reviewed by any 

person, tribunal, or governmental agency except as herein provided. No action 

against the United States, the Commissioner of Social Security, or any officer or 

employee thereof shall be brought under section 13 31 or 1346 of Title 28 to recover 

on any claim arising under this subchapter. 

Accordingly, plaintiff may not raise a negligence claim under the Social Security Act. Weinberger 

v. Salfi, 422 U.S. 749, 758-59 (1975) (The Act prohibits review of decision of the Commissioner 

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save as provided in section 405(g). Indeed, plaintiff resorted to administrative review of his claim 

that he was not overpaid and prevailed. He does not specifically challenge the ALJ' s decision and 

certainly has not done so within the 60 days of the decision as required under section 405(g). 

Moreover, claims for consequential damages such as might arise under a negligence claim 

and arising under the FTCA are barred by the Act as well. See Hooker v. U.S. Dept. of Health and 

Human Services, 85 8 F .2d 525, 529-3 0 (91

h Cir. 198 8) (allowing lawsuits under the FTCA for greater 

damages than the statute provides would render meaningless the jurisdiction restriction of§ 405(h) ). 

In addition, the Act prohibits a Bivens type action against Administration officials for money 

damages. See Schweikerv. Chilicky, 487U.S. 412, 425 (1988). Because the court lacks jurisdiction 

to hear plaintiffs claims, this action should be dismissed. 

B. Statute of Limitations 

Even if plaintiff were able to overcome the hurdle of this court's lack of jurisdiction to hear 

his claim, plaintiff has failed to timely assert a claim under the FTCA.2 Under 28 U.S.C. § 2401(b), 

tort claims must be presented to the appropriate agency within two years after the claim accrues. 

Under federal law, a claim accrues "when the plaintiff knows or has reason to know of the injury 

which is the basis of the action." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 

2004) ((quoting TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)); see also United States v. 

Kubrick, 444 U.S. 111, 123 (1970) (applying accrual analysis to FTCA claim and determining that 

accrual does not await plaintiff's awareness that the injury was negligently inflicted, but rather starts 

when plaintiff is armed with facts about the harm done). 

2

The court also notes that plaintiff has failed to name the proper defendant, the United 

States, for a claim under the FTCA. 

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The SSA informed plaintiff ofits determination of the overpayment of benefits on September 

24, 2011, well beyond the two year limitation period given that plaintiff filed notice with the agency 

on October 20, 2014. Even ifthe claim did not accrue until the harm became more concrete when 

recoupment occurred in July of2012, the claims are still time-barred. Because plaintiff provides no 

basis for tolling the limitations period, this action should be dismissed for this reason as well. 

CONCLUSION 

For the reasons stated above, defendants' motion to dismiss (#12) should be granted and this 

action should be dismissed. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's judgment or appealable order. The 

parties shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fourteen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right 

to de novo consideration of the factual issues and will constitute a waiver of a party's right to 

appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. --tD ATED this :J day of October 2015. 

United St 

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