06-3827-cv
Maloney v. United States of America

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                             August Term, 2007

(Argued: January 14, 2008                                                     Decided: February 21, 2008)

                                          Docket No. 06-3827-cv

PETER J. MALONEY, MARILYN G. MALONEY,

                 Plaintiffs-Appellants,

                 v.

SOCIAL SECURITY ADMINISTRATION , ANNE JACOBSKY ,
J. GLASSER, MS. CRUMBLE , UNKNOWN EMPLOYEES OF
THE SOCIAL SECURITY ADMINISTRATION , SOM RAMRUP ,
JANET MULLARKEY ,

                 Defendants-Appellees,

UNITED STATES OF AMERICA ,

                 Defendant.

Before: KEARSE , LEVAL, and CABRANES, Circuit Judges.

        Plaintiffs-appellants appeal from a judgment dismissing their complaint, which charged

defendants-appellees with, inter alia, a violation of the Age Discrimination Act of 1975, 42 U.S.C. §§

6101-6107. The United States District Court for the Eastern District of New York (Joseph F. Bianco,

Judge) dismissed the complaint in part pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure

for lack of subject matter jurisdiction and otherwise pursuant to Rule 12(b)(6) for failure to state a claim

upon which relief can be granted. Because we hold that the Age Discrimination Act does not apply to

the Social Security Administration and find no error in the District Court’s dismissal of the complaint,

the judgment is affirmed.



                                                     1
                                          PETER J. MALONEY, (Daniel Kogan, Ozone Park, New York on
                                                 the brief), Fort Tilden, New York, for Plaintiffs-Appellants.

                                          KATHLEEN A. MAHONEY , Assistant United States Attorney,
                                               (Roslynn R. Mauskopf, United States Attorney; Varuni
                                               Nelson, Assistant United States Attorney, of Counsel),
                                               United States Attorney’s Office for the Eastern District
                                               of New York, Brooklyn, New York, for Defendants-
                                               Appellees.

PER CURIAM :

         Plaintiffs-appellants Peter J. Maloney (“Peter Maloney”) and Marilyn G. Maloney (“Marilyn

Maloney”) appeal from a judgment entered pursuant to the June 19, 2006 Memorandum and Order of

the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge)

dismissing their complaint in part under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack

of subject matter jurisdiction and otherwise under Rule 12(b)(6) for failure to state a claim upon which

relief can be granted. Plaintiffs brought this action against defendants-appellees Social Security

Administration (“SSA”), various SSA employees, and Special Assistant United States Attorney Som

Ramrup, counsel for the SSA, to obtain allegedly past-due Social Security benefits and for relief from

various statutory and constitutional violations. In their complaint, plaintiffs allege, inter alia, that

defendants unlawfully suspended plaintiffs’ Social Security benefits, conspired to deny plaintiffs a

hearing, and discriminated against them on the basis of age and sex. This conduct, plaintiffs allege,

violated the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101-6107, and various other statutory and

constitutional provisions prohibiting discriminatory practices. On appeal, plaintiffs urge this Court to

conclude that the District Court erred when it dismissed their complaint.

                                              BACKGROUND

         Our recitation of the facts relies on the June 19, 2006 Memorandum and Order of the District

Court, Maloney v. Social Security Administration, No. 02-CV-1725, 

(E.D.N.Y. June 19,

2006).

                                                       2
         In October 1994, Peter Maloney filed a claim under the Social Security Act for “old-age

insurance” benefits, see 42 U.S.C. § 402(a); 20 C.F.R. § 404.310, requesting that they commence on his

sixty-fifth birthday in December 1994. Shortly thereafter, his wife, Marilyn Maloney, applied for “wife’s

insurance benefits” pursuant to 42 U.S.C. § 402(b). After an initial review of the Maloneys’

applications, the SSA rendered a favorable decision and determined that Peter Maloney was entitled to

benefits effective December 1994 and Marilyn Maloney was entitled to receive “wife’s insurance

benefits” as of the same date. Peter Maloney subsequently decided to continue working as a self-

employed attorney and elected to defer his benefits until after he ceased working full time. Upon

notification of Peter Maloney’s decision, the SSA suspended his retirement benefits and those of

Marilyn Maloney that derived from her husband’s status.

         In August 1996, Peter Maloney informed the SSA that he intended to retire by October of that

year and requested that his retirement benefits commence at that time. In October, the SSA

determined that Peter Maloney was still working and, on that basis, denied his request for retirement

benefits. The ensuing dispute between the Maloneys and the SSA over whether Peter Maloney was, in

fact, retired temporarily cooled when Peter Maloney submitted two letters in July 1997, stating that his

projected earnings for 1997 would fall within the “exempt amount” then permitted retirees by 42

U.S.C. § 403(f)(8)(D)(i).1 Based on that representation, the SSA reinstated the Maloneys’ benefits

effective January 1997 and, in September 1997, paid Peter Maloney retroactive benefits in a lump sum.

         The SSA continued to investigate Peter Maloney’s retirement status throughout 1998. After its

efforts to verify Peter Maloney’s retirement status proved unsuccessful, the SSA suspended the

Maloneys’ benefits in early 1999 and sought to recover the Social Security benefits paid to the Maloneys

between January 1997 and February 1999. In May 1999, the Maloneys filed a timely request pursuant to



         1
             This provision was amended in 2000 to permit unlimited earnings without any commensurate reduction in
benefits for beneficiaries who reached the “retirement age” as set forth in 42 U.S.C. § 416(l). See Pub. L. No. 106-182, §
3, 114 Stat. 198.
                                                              3
20 C.F.R. § 404.909(a)(1) for reconsideration of the SSA’s decision to suspend benefits. The Maloneys

filed several subsequent formal and informal requests for reconsideration and for a hearing before an

Administrative Law Judge.2

         In March 2001, the SSA notified Peter Maloney that his benefits were being reinstated effective

December 1999, when he became seventy years of age, but the SSA would withhold his benefit

payments for six months in order to recoup what the SSA considered an overpayment of benefits

between January 1997 and February 1999. Peter Maloney filed simultaneous requests for (1)

reconsideration of this decision and (2) a new hearing. The SSA responded to these requests with an

explanation of the procedures for requesting a hearing and subsequently, in March 2002, requested the

Maloneys’ income tax returns for 1998 and 1999. Plaintiffs responded by filing this action in the

District Court.

         The SSA then issued a reconsideration decision in September 2002, denying plaintiffs’ request

for past Social Security benefits because plaintiffs had not established that Peter Maloney was retired

during the relevant time period. On the basis of this determination, the SSA concluded that the

Maloneys were not entitled to benefits prior to December 1999, the date when Peter Maloney reached

the age of seventy. In addition, the SSA attributed its delayed resolution of plaintiffs’ claims for

benefits on the Maloneys’ conduct, specifically their failure to provide the SSA with information, such

as the Maloneys’ tax returns, necessary to determine whether Peter Maloney had, in fact, retired in

October 1996. The Maloneys requested a hearing following the SSA’s September 2002 determination

but failed to use the proper Form HA-501. In September 2003, the SSA held a hearing which resulted

in an October 2003 decision fully favorable to plaintiff, finding that Peter Maloney was retired as of

October 1996 and entitled to benefits as of that date. Despite the favorable ruling, plaintiffs decided to

continue with this action.

         2
          After a reconsidered determination has been rendered by the SSA, a claimant can request a hearing before an
Administrative Law Judge as part of the administrative appeals process. See 20 C.F.R. § 422.203(c).
                                                            4
         Plaintiffs’ complaint asserts several causes of action against the defendants, including claims

under the Age Discrimination Act, 42 U.S.C. §§ 6101-6107; the Social Security Act, 42 U.S.C. § 401 et

seq.; various civil rights statutes, specifically 42 U.S.C. §§ 1983, 1985, 1986; and directly under the

Fourth, Fifth, and Fourteenth Amendments to the Constitution. Plaintiffs allege that defendants

unlawfully suspended their Social Security benefits, subjected them to harassment, conspired to deny

them a hearing, discriminated against them both on the basis of age and against Marilyn Maloney on the

basis of sex, and violated their due process rights. In particular, plaintiffs allege that their Social

Security benefits were suspended without a hearing and their repeated requests for a hearing were

ignored. They seek past-due Social Security benefits, actual and punitive money damages, and

declaratory and injunctive relief.

         The District Court dismissed four of plaintiffs’ claims for lack of subject matter jurisdiction, see

Fed. R. Civ. P. 12(b)(1), and the remainder of the complaint for failure to state a claim upon which

relief can be granted, see Fed. R. Civ. P. 12(b)(6). The Court determined it lacked subject matter

jurisdiction over the claims for Social Security benefits because (1) plaintiffs had not exhausted their

administrative remedies as required by 42 U.S.C. § 405(g) and (2) their claims were moot in light of the

retroactive benefits plaintiffs received shortly after they filed this suit.3 Turning to the remaining causes

of action, the District Court dismissed the Age Discrimination Act and Section 1983 claims on the

ground that neither statute applies to the SSA or its employees, as agents of the federal government. It

also dismissed plaintiffs’ claims of an unlawful conspiracy to harass and deprive them of their rights to

due process, brought under Sections 1985 and 1986, because the complaint failed to allege any class-

based invidious discrimination. With respect to plaintiffs’ Fifth Amendment claim, the Court construed

it as arising from alleged violations of the plaintiffs’ due-process rights actionable under the doctrine of



         3
             Because the SSA decided in October 2003 that plaintiffs are entitled to the money it paid them, it is no
longer seeking to collect overpayment, removing any controversy regarding the benefits as paid .
                                                               5
Bivens v. Six Unknown Federal Narcotics Agents, 

(1971). The Court concluded that plaintiffs’

factual allegations could not support a due process claim.4 Judgment was entered and this appeal

followed.

         On appeal, plaintiffs assert that the District Court erred in concluding that (1) it did not have

subject matter jurisdiction over plaintiffs’ claims for Social Security benefits and (2) the complaint failed

to state claims under the Age Discrimination Act; Sections 1983, 1985, and 1986; and the Fourth, Fifth,

and Fourteenth Amendments.

                                                    DISCUSSION

         In reviewing a district court’s dismissal of a complaint for lack of subject matter jurisdiction, we

review factual findings for clear error and legal conclusions de novo. See, e.g., Makarova v. United States,

, 113 (2d Cir. 2000). We review de novo a district court’s dismissal for failure to state a

claim upon which relief can be granted. See, e.g., Weixel v. Bd. of Educ., 

, 145 (2d Cir. 2002).

         We affirm the judgment of the District Court substantially for the reasons stated in its

Memorandum and Order of June 19, 2006. See Maloney, 

. We write briefly to clarify a

single issue—whether the Age Discrimination Act applies to the SSA, a federal agency. We hold that it

does not.

         The Age Discrimination Act mandates that “no person in the United States shall, on the basis

of age, be excluded from participation in, be denied the benefits of, or be subject to discrimination

under, any program or activity receiving [f]ederal financial assistance.” 42 U.S.C. § 6102. The statute,

in turn, defines “program or activity” to encompass the operations of certain types of state and local




         4
            The court also dismissed plaintiffs’ Fourth and Fourteenth Amendments claims because plaintiffs had not
stated any factual allegations concerning unlawful searches or seizures and the Fourteenth Amendment applies only to
the states.


                                                            6
governmental entities as well as educational institutions and private institutions.5 Plaintiffs point to no

provision of the Age Discrimination Act— and we are aware of none— that would suggest that a federal

agency, such as the SSA, comes within the statute’s reach.

        Nevertheless, our Court has not yet had occasion to determine whether Social Security benefits

or programs administered by the SSA are “programs or activities” within the meaning of the Age

Discrimination Act, 42 U.S.C. § 6107(4). In Soberal-Perez v. Heckler, 

(2d Cir. 1983),

however, we considered a nearly identical question in the context of a similar statute, Title VI of the

Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq (“Title VI”). The Soberal-Perez plaintiffs brought an

action against the SSA pursuant to Section 601 of Title VI, which prohibits racial discrimination in the


        5
            42 U.S.C. § 6107(4) defines “program or activity” as

                   “all of the operations of—

                             (A)(i) a department, agency, special purpose district, or other instrumentality of a State or of
                             a local government; or

                             (ii) the entity of such State or local government that distributes such assistance and each such
                             department or agency (and each other State or local government entity) to which the
                             assistance is extended, in the case of assistance to a State or local government;

                             (B)(i) a college, university, or other postsecondary institution, or a public system of higher
                             education; or

                             (ii) a local educational agency (as defined in section 7801 of Title 20), system of vocational
                             education, or other school system;

                             (C)(i) an entire corporation, partnership, or other private organization, or an entire sole
                             proprietorship–

                                      (I) if assistance is extended to such corporation, partnership, private organization,
                                      or sole proprietorship as a whole; or

                                      (II) which is principally engaged in the business of providing education, health care,
                                      housing, social services, or parks and recreation; or

                             (ii) the entire plant or other comparable, geographically separate facility to which Federal
                             financial assistance is extended, in the case of any other corporation, partnership, private
                             organization, or sole proprietorship; or

                             (D) any other entity which is established by two or more of the entities described in
                             subparagraph (A), (B), or (C);

                   any part of which is extended Federal financial assistance.


                                                                7
participation in or provision of benefits “under any program or activity receiving [f]ederal financial

assistance,” 42 U.S.C. § 2000d. After examining the language of Title VI, its legislative history, the

relevant agency regulations, and the case law interpreting the statute, we found that the statute’s term

“program or activity receiving [f]ederal financial assistance,” did not cover federal agencies

administering their own budgets, such as the SSA. We concluded therefore that Title VI does not apply

to programs directly administered by the federal government, 

, explaining

that “[Title VI] was meant to cover only those situations where federal funding is given to a non-federal

entity which, in turn, provides financial assistance to the ultimate beneficiary,” 

        The current language of the Age Discrimination Act (set forth in note 5, ante) is for our

purposes functionally identical to the terms of Title VI, as it was when we interpreted the statute in

Sobaral-Perez. Compare 42 U.S.C. § 2000d-4a with 42 U.S.C. § 6107(4), see note 5, ante; see also Action

Alliance of Sr. Citizens of Greater Phila. v. Heckler, 

, 934, n.1 (D.C. Cir. 1986) (observing that

the Age Discrimination Act was modeled on Title VI). In addition, the relevant provisions of both

statutes share a common history. Title VI and the Age Discrimination Act were both amended in

response to the Supreme Court’s narrow interpretation in Grove City College v. Bell, 

, 570-75

(1984), of similar language in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq.

(“Title IX”), specifically the phrase “education program or activity.” Prompted by concern that the

Grove City interpretation would apply to Title VI, the Age Discrimination Act, Title IX, and Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794, all of which applied to any federal “program or

activity,” Congress passed, and the President signed, the Civil Rights Restoration Act of 1987, Pub. L.

No. 100-259, 102 Stat. 28 (1988). See O’Connor v. Davis, 

, 117 (2d Cir. 1997). The Act

amended the affected statutes by inserting a common definition of “program or activity” for all four of

the statutes. See Franklin v. Gwinnett County Pub. Schs., 

, 73 (1992) (describing the history of

the Civil Rights Restoration Act of 1987); 

(same). Where two provisions in


                                                       8
different statutes share similar text and legislative histories, it is reasonable to interpret one in a manner

consistent with the other. Although a new definition of “program or activity” has been inserted since

the time of our decision in Soberal-Perez (for both Title VI and the Age Discrimination Act), that

amendment did not change the meaning with respect to the non-coverage of programs directly

administered by federal agencies. Indeed, the addition of the definition of “program or activity,” see

note 5 ante (text of provision), makes it even clearer that the SSA is not covered by either statute.

Accordingly, we conclude that, as with Title VI, the Age Discrimination Act does not apply to a federal

agency implementing a federal program.

        In concluding that a claim may not be asserted against the SSA and its personnel under the Age

Discrimination Act, we do not, of course, hold that age discrimination by the agency or its staff is

without legal remedy. To put the matter another way: the SSA’s exclusion from the remedial provisions

of the Age Discrimination Act does not constitute a license to discriminate on the basis of age. When

such discrimination occurs, “the Constitution and the Social Security Act itself,” 

, as well as other applicable statutes, may provide an appropriate remedy; we merely hold that the

Age Discrimination Act does not.

        In sum, we conclude that the District Court did not err in dismissing plaintiffs’ claim under the

Age Discrimination Act.

                                             CONCLUSION

        The judgment of the District Court is affirmed.




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