SSA’s Colvin asks federal court to dismiss Angello’s lawsuit

Social Security Administration acting commissioner Carolyn W. Colvin is asking the federal court to dismiss in its entirety a lawsuit filed by John A. Angello, who alleged, among other things, that his SSA retirement benefits were not properly calculated.

Colvin, through counsel assistant U.S. attorneys Jessica F. Wessling and Mikel W. Schwab, argued that the lawsuit should be dismissed because the U.S. District Court for the NMI lacks subject matter jurisdiction in this case.

In Colvin’s motion to dismiss filed in court on Wednesday, Wessling and Schwab said Angello’s complaint improperly asserts federal jurisdiction under the Older Americans Act, the Administrative Procedure Act, and the takings clause of the Fifth Amendment.

Wessling and Schwab asserted that the exclusive statutory basis to seek judicial review of the findings and decisions of the SSA Commissioner is the Social Security Act.

The lawyers also argued that the agency’s determination is not ripe for judicial review as Angello has not exhausted his administrative remedy.

Accordingly, the lawyers said the court should dismiss the lawsuit without allowing Angello to amend it, as the court is without subject matter jurisdiction to review the agency’s non-final decision.

Wessling and Schwab also argued that the complaint “fails to state a claim upon which relief may be granted.”

Angello is suing SSA and Colvin for allegedly violating the law by not recording his SS taxed earnings and delaying an answer or making a remedy, and by not properly and accurately calculating his SSA retirement insurance benefits and delaying an answer to his complaint.

Angello is also suing the defendants for allegedly violating the Social Security Act, Older Americans Act, the Administrative Procedure Act, and the U.S. Constitution by overcharging him for his medicare, delaying his February-August 2015 SSA retirement insurance benefits and not responding to his inquiries, and by selfishly calculating his 2016 cost of living adjustment by a self-serving consumer price index and denying him a COLA.

Angello asked the court to order SSA to record and credit his SS taxed earnings for years 2007-2009, or if not compelled to record 2007-2009 taxed earnings.

He requested the court to order the SSA to return taxes and fees ($3,528.02) to him since SS taxes were not officially collected from CNMI government employees during 2007-2009.

He asked the court to order SSA to recalculate his retirement insurance benefits according to the information in his SSA “My Account.”

Angello moved the court to declare the SSA’s Windfall Elimination Provision (WEP) administered to his retirement insurance benefits is unconstitutional and should be reevaluated and re-calculated as to not cause undue harm to him.

He asked the court to order SSA to refund the Medicare payment of one month ($104.90) that has been withheld from him.

He requested the court to order SSA to pay him the retroactive February-August 2015 lump sum SS payment of $4,907 that is being improperly withheld from him.

He asked the court to declare SSA’s action of denying him his 2016 COLA is not justifiable.

Angello said he filed for SS retirement insurance benefits at the age of 62 on Feb. 27, 2009 in the State of California while caring for his dying parents.

An SS notice of award was issued on March 20, 2009.

On March 24, 2009, he filed a request for reconsideration after his determined benefits were greatly reduced due to the SS’s Windfall Elimination Provision.

SSA denied his request for reconsideration to eliminate the WEP.

On Dec. 2, 2010, the SSA’s administrative law judge denied Angello’s request to eliminate the WEP.

Angello filed a request for review of hearing decision/order with the SSA’s Appeals Council. The council denied his request.