II. Alternate Grounds for Jurisdiction
Plaintiffs allege that this court has subject matter jurisdiction over this action pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq,. and 28 U.S.C. §§ 1331, 1343(a) and 1361. Each of these grounds for jurisdiction will be considered.
A. Mandamus Jurisdiction
Under 28 U.S.C. § 1361, "the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to plaintiff." According to plaintiffs, even if this court does not have subject matter jurisdiction of this action pursuant to section 405(g), it may exercise its mandamus jurisdiction over the Commissioner. The Supreme Court has noted that in certain circumstances, mandamus jurisdiction may be available in Social Security cases against the Commissioner. Heckler v. Ringer, 466 U.S. 602, 616, 80 L. Ed. 2d 622, 104 S. Ct. 2013 (1989); see also, Briggs, 886 F.2d at 1142 (confirming that Ninth Circuit caselaw holds that mandamus may lie against the Commissioner.)
"The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Heckler, 466 U.S. at 616. In this case, the court finds that plaintiffs have not exhausted all other avenues of relief. As the court has already noted, the Act provides plaintiffs with ample opportunity to appeal the representative payee designations. 42 U.S.C. § 1383(a)(2)(B)(xi); see also 42 U.S.C. § 405(g) & 20 C.F.R. § 404.902. Plaintiffs, however, have not yet made any attempt to do so. Thus, it is impossible for the court to find that mandamus is the only avenue for relief available to plaintiffs.
In addition, plaintiffs have not shown that defendant owed them a clear nondiscretionary duty. In Briggs, the Ninth Circuit concluded that mandamus jurisdiction was appropriate because plaintiffs maintained that the Act "imposed upon the Secretary a clear, nondiscretionary duty to pay Title II and Title XVI benefits directly to eligible beneficiaries . . . when no representatives exist." 886 F.2d at 1142. Here, plaintiffs maintain that by automatically approving the appointment of the County as representative payee and failing to require an accounting from the County, the SSA violates a clear duty it has to plaintiffs. What plaintiffs fail to show, however, is that this duty was a nondiscretionary one, as Heckler requires. 466 U.S. at 616. In fact, the designation of a representative payee is plainly an exercise of the Commissioner's discretionary authority.
To begin with, representative payees are not selected for all beneficiaries but only "upon a determination by the Commissioner of Social Security that the interest of [a beneficiary] would be served thereby." 42 U.S.C. § 1383(a)(2)(A)(ii)(I). In addition, the regulations regarding representative payees require the Commissioner to consider a variety of factors before selecting a payee and to utilize a "flexible" order of preference. 20 C.F.R. §§ 416.615, 416.621. These provisions clearly indicate that the decision to appoint a representative payee and a determination of who will best serve that role are examples of a discretionary duty owed to plaintiffs. Thus, because the plaintiffs have failed to meet the requirements of Heckler, this court cannot exercise its mandamus jurisdiction over defendant.
B. Jurisdiction Under 28 U.S.C. §§ 1331 and 1343(a)
1. 28 U.S.C. § 1331
Plaintiffs also maintain that there is jurisdiction pursuant to 28 U.S.C. § 1331, which provides that "the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Unfortunately for plaintiffs, however, 42 U.S.C. § 405(h) expressly forbids plaintiffs from bringing matters arising under subchapter II of the SSA
under the general federal question provision of section 1331. Section 405(h) makes clear that "no action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter." See also, Briggs, 886 F.2d at 1138.
Despite this unambiguous statement, plaintiffs argue that because they are suing the Commissioner for relief other than that relating to a claim for benefits, their claims do not "arise under" the SSA. In support of their argument, plaintiffs cite to Chilicky v. Schweiker, 796 F.2d 1131 (9th Cir. 1986), rev'd on other grounds, 487 U.S. 412, 101 L. Ed. 2d 370, 108 S. Ct. 2460 (1988), where the court found that jurisdiction did lie under section 1331. Chilicky, however, is inapposite to this action.
In Chilicky, plaintiffs brought a claim for money damages as a remedy for emotional distress they allegedly suffered as a result of erroneous administrative processes. 796 F.2d at 1135. The Ninth Circuit held that plaintiffs were precluded from seeking such relief under section 405(g). Id. Nonetheless, the court held that because plaintiffs brought their claim pursuant to the due process clause of the Fifth Amendment, the claim did not "arise under" the SSA and section 1331 jurisdiction was available. Id.
Here, plaintiffs are challenging their representative payee designations. Unlike the Chilicky plaintiffs, plaintiffs here seek relief which may be granted pursuant to section 405(g). See, e.g., 42 U.S.C. § 1383 (a)(2)(B)(xi) (stating that "any individual who is dissatisfied with a determination by the Commissioner of Social Security to pay such individual's benefits to a representative payee under this subchapter, or with the designation of a particular person to serve as representative payee, shall be entitled to a hearing by the Commissioner, . . . and to judicial review of the Commissioner's final decision."); 20 C.F.R. § 404.902 (representative payee designation is an "initial determination" that is "subject to administrative and judicial review.") Furthermore, the gravamen of plaintiffs' complaint against the Commissioner is that the SSA failed to follow its own representative payee standards. This is clearly a claim "arising under" subchapter II of the SSA. Thus, jurisdiction may not lie under section 1331.
2. 28 U.S.C. § 1343(a)
Section 1343(a) provides in pertinent part that:
(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: