Tafoya v. Kijakazi

551 F.Supp.3d 1054

Roberta L. TAFOYA, Plaintiff,

v.Kilolo KIJAKAZI,¹ Acting Commissioner of Social Security, Defendant.

Civil Action No. 21-cv-00871-REB

United States District Court, D. Colorado.

Signed July 29, 2021

Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.

Brian Carl Baak, Social Security Administration-OGC-Denver Office of the General Counsel—Region VIII, Denver, CO, for Defendant.

ORDER DENYING DEFENDANT'S MOTION PURSUANT FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) TO DISMISS PLAINTIFF'S COMPLAINT

Blackburn, United States District Judge

The matter before me is the motion to dismiss contained in the Acting Commissioner's Motion Pursuant to Federal Rule of Civil Procedure 12(b)(1) To Dismiss Plaintiff's Complaint in Part and for an Extension of Time Within Which To File the Certified Administrative Record [#7],² filed May 24, 2021.³ By this motion, the Acting Commissioner seeks to dismiss plaintiff's putative constitutional separation-of-powers claims for lack of standing. I deny that aspect of the motion.

I. JURISDICTION

I putatively have jurisdiction of this matter pursuant to 42 U.S.C. § 405(g) (review of final decision of Commissioner of Social Security).

II. STANDARD OF REVIEW

Federal courts are courts of limited jurisdiction and thus may adjudicate only claims the Constitution or Congress gives them jurisdiction to determine. Morris v. City of Hobart , 39 F.3d 1105, 1110 (10th Cir. 1994), cert. denied , 514 U.S. 1109, 115 S.Ct. 1960, 131 L.Ed.2d 852 (1995) ; Fritz v. Colorado , 223 F.Supp.2d 1197, 1199 (D. Colo. 2002). Concomitantly, the class of persons authorized to bring suit is limited by constitutional and prudential principles of standing. See Warth v. Seldin , 422 U.S. 490, 500-01, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). "[S]tanding is a threshold issue in every case[.]" Board of County Commissioners of Sweetwater County v. Geringer , 297 F.3d 1108, 1111 (10th Cir. 2002) (citation and internal quotation marks omitted). If a putative plaintiff lacks standing, the court is without subject matter jurisdiction to consider her claims. See, e.g. , Warth , 95 S.Ct. at 2206-07 ; Schlesinger v. Reservists Committee to Stop the War , 418 U.S. 208, 215, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may consist of either a facial attack or a factual attack on the complaint. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995). The Acting Commissioner's motion presents a facial attack, that is, it questions the sufficiency of the complaint, the allegations of which I therefore must accept as true. Id. Once challenged, plaintiff bears burden to demonstrate she has standing to bring suit. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

III. ANALYSIS

By this action, plaintiff seeks review of the Commissioner's decision denying her claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. In addition to challenging this substantive determination, plaintiff also claims statutory limits on the President's ability to remove the Commissioner of Social Security violate constitutional separation-of-powers principles. As a result of this alleged constitutional defect, plaintiff contends the Administrative Law Judge (ALJ) who determined her claim for benefits lacked authority to render that decision. While the Acting Commissioner concedes plaintiff has standing as to the substantive claim, she maintains plaintiff lacks standing to bring this constitutional challenge. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 1867, 164 L.Ed.2d 589 (2006) (plaintiff must demonstrate standing as to each claim and form of relief).

"[T]he irreducible constitutional minimum of standing" requires plaintiff to prove (1) that she suffered an "injury in fact;"⁴ (2) that there is a causal connection between her injury and the conduct of which she complains; and (3) that her injury is likely to be redressed by a favorable decision in this case. Lujan , 112 S.Ct. at 2136. Stated more succinctly, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." DaimlerChrysler Corp. , 126 S. Ct. at 1861 (citation and internal quotation marks omitted). The Acting Commissioner insists plaintiff can establish neither of these latter two requirements – traceability or redressability. Before examining these issues, some background on the nature of plaintiff's constitutional arguments is necessary.

Plaintiff's constitutional claim is premised on a putatively logical extension of the Supreme Court's recent decision in Seila Law v. Consumer Financial Protection Board , ––– U.S. ––––, 140 S.Ct. 2183, 207 L.Ed.2d 494 (2020). The appellant in Seila Law was a California law firm which provided debt-relief services. In the course of investigating the firm for potential unlawful practices in the advertising, marketing, and sale of such services, the Consumer Financial Protection Board (CFPB) issued a Civil Investigative Demand (CID) requiring Seila Law to produce information and documents related to its business practices. Id ., 140 S.Ct. at 2194. When Seila Law refused, the CFPB filed a petition in the district court to enforce the demand. See id.

As justification for its noncompliance, Seila Law maintained the structure of the CFPB violated the constitutional mandate of separation of powers. Specifically, Seila Law noted the CFPB, an agency under the auspices of the Executive Branch, was headed by a single individual who could be removed by the President only for "inefficiency, neglect, or malfeasance in office." 12 U.S.C. § 5491(c)(3). See Seila Law , 140 S.Ct. at 2191. Seila Law argued this provision violated Article II of the Constitution, under which the executive power belongs wholly and exclusively to the President. Although the President may delegate his authority to lesser executive officers to assist him in discharging the responsibilities of his office, because he retains "ultimate responsibility" for use of the executive power, he has an "active obligation to supervise" those officers. Seila Law , 140 S. Ct. at 2203 (citation and internal quotation marks omitted).

The Court agreed with Seila Law that this constitutional responsibility was thwarted by limitations on the President's ability to remove the Director of the CFPB. "The CFPB's single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one:"

The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is.... Yet the Director may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans.

Id. at 2203-04. In short, "[t]he CFPB Director's insulation from removal by an accountable President ... render[s] the agency's structure unconstitutional." Id. at 2204. The Supreme Court further cemented this understanding of the President's removal powers this past term, finding "[a] straightforward application of our reasoning in Seila Law " likewise rendered unconstitutional the statutory protection from removal except for cause afforded the Director of the Federal Housing Finance Authority ("FHFA"). Collins v. Yellen , ––– U.S. ––––, 141 S. Ct. 1761, 1784, 210 L.Ed.2d 432 (2021).

Plaintiff here insists the Social Security Administration suffers from the same constitutional defect.⁵ The Department of Justice agrees. See Constitutionality of the Commissioner of Social Security's Tenure Protection , 45 Op. O.L.C –––– (Slip Op. at 10-15) (July 8, 2021) (available at: https://www.justice.gov/olc) (last accessed: July 26, 2021).) So does the current Administration, which promptly removed the quondam director of the agency following the issuance of this Memorandum Opinion from the Office of Legal Counsel. (See supra n.1.)

While ultimately, the righteousness vel non of her arguments on the merits may gain plaintiff little, if anything,⁶ the question presently before me is one of standing, and thus does not implicate the merits. Davis v. United States , 564 U.S. 229, 249, n.10, 131 S.Ct. 2419, 2434 n.10, 180 L.Ed.2d 285 (2011) ("[S]tanding does not depend on the merits of a claim.") (internal quotation marks and alterations omitted); Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 89, 118 S.Ct. 1003, 1010, 140 L.Ed.2d 210 (1998) ("Jurisdiction is not defeated by the possibility that the averments [in a complaint] might fail to state a cause of action on which petitioners could actually recover.") (citation, internal quotation marks, and first alteration omitted). I thus return to those arguments.

The Acting Commissioner argues plaintiff cannot establish traceability, that is, that her injury – the unfavorable disability decision – was caused by an action of the quondam Commissioner "and not ... th[e] result [of] the independent action of some third party not before the court." Lujan , 112 S. Ct. at 2136 (citation and internal quotation marks omitted; alterations in original). As the Acting Commissioner acknowledges, the requirements for establishing traceability for structural challenges such as this one are not onerous:

[A] litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government's course of conduct would have been different in a "counterfactual world" in which the Government had acted with constitutional

...