UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JOHN D. LEE II, pro se )
)
TAMI J. LEE, pro se )
)
Plaintiffs, )
)
v. ) N. 3:05-CV-512
) (VARLAN/SHIRLEY)
GEORGE WALKER BUSH, )
PRESIDENT, )
)
MICHAEL J. ASTRUE, )
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendants, et al. )
AMENDMENT TO COMPLAINT
AND RESPONSE TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS
AND MEMORANDUM OF LAW
STATE OF TENNESSEE
COUNTY OF KNOX
COMES NOW the plaintiffs John Lee, pro se, and spouse Tami Lee, pro se ("Plaintiffs"), and having filed suit against the above-styled defendants (collectively, the "Defendants"), hereby makes this supplemental amendment to complaint ("Amendment to Complaint"), per LR7.1(c)(d), to respond or amend the original complaint ("Complaint") made against the Defendants, pursuant to Rule 15 of the Federal Rules of Civil Procedure, and responsive to Defendants' Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, as follows:
AMENDMENTS TO OVERVIEW
1. Subject matter jurisdiction for this Court arises from 42 U.S.C. § 405(g); Social Security Act Title II (Title 42, Chapter 7, Subchapter II, Section 423, U.S. Code); Social Security Act Title XVI (Title 42, Chapter 7, Subchapter XVI, U.S. Code); U.S. Constitution; common law; and any other rules, laws, statutes, codes, regulations, policies or constitutions, as equity requires.
2. Commissioner of Social Security and his general counsel are representative agents for their appointing supervisor in the executive branch, Defendant George Walker Bush. An "administrative agency" of government, such as Social Security Administration, is not a "person" subject to jurisdiction of a court. Service upon Defendant Bush is effected by service upon his attorney of record, the Attorney General of U.S. in Washington D.C., which is why such service is required in all Social Security appeals. For example, when Plaintiff John Lee sued a "government" for theft of his automobile, filed in U.S. District Court in Knoxville, it was impossible to sue "Knoxville Police Department", which is not a "person", and the named defendants included City of Knoxville Municipal Corporation and Mayor Victor Ashe, in addition to the chief of police and other governmental employees and contractors. State felony charges were also filed in that case, with both state police and state district attorney general.
3. U.S. Constitution, Article III, Section 2, grants subject matter jurisdiction for controversies involving adverse decisions by federal agencies, of both law and fact. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. " (Marbury v. Madison, 5 U.S. 137 (1803)). Alexander Hamilton, in Federalist No. 78, wrote the legislative intent of the U.S. Constitution: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
4. Fraudulent concealment and covert or clandestine policies, practices or internal "regulations" by Defendants also waivers Defendants' sovereign immunity, such as Defendants' routine refusal to provide notice to claimants on the requirement to submit Residual Functional Capacity Questionaires signed by claimants' treating physicians. Defendants fail to provide any "official forms" to claimants for Residual Functional Capacity Questionaires. This constitutes a lack of Constitutional Due Process. Apparently, this "Top Secret" covert policy by Defendants also routinely cheats licensed attorneys from winning benefits for disabled clients, and is devastating for pro se claimants. Defendants do not require notarized affidavits for Residual Functional Capacity Questionaires, and an unwitnessed signature by the expert witness is apparently sufficient to certify expert witness testimony for ALJ Hearings, and thus are sufficient as the official record on appeal to U.S. District Courts.
5. In Bowen v. City of New York, 476 U.S. 467 (1986), the Supreme Court held that the 60 day limit is not jurisdictional, but a statute of limitations, that may be tolled for good cause. Consequently under proper circumstances a Federal district court may hold that the period’s running is tolled on equitable grounds. The Supreme Court held that a case for tolling exists when claimants do not know of an internal Agency policy that violates their rights. Subsequent decisions suggest that although the case for tolling is strongest in cases involving government misconduct that is not required. Tolling may, for example, be warranted when the claimant’s mental impairment led to late filing. "The District Court certified the class as including claimants who had not complied with the 60-day requirement for seeking judicial review and other claimants who had not exhausted their administrative remedies and obtained a final decision of the Secretary as required by 405(g). Holding that the policy in question was illegal, the District Court ordered the Secretary to reopen the decisions denying or terminating benefits and to redetermine eligibility. The Court of Appeals affirmed. The District Court properly included in the class claimants who had received a final decision from the Secretary but did not seek judicial review within the statutory 60-day period. The 60-day requirement is not jurisdictional but rather constitutes a statute of limitations. Equitable tolling of that requirement is consistent with Congress' intent in enacting 405(g), and on the facts of this case the equities are in favor of tolling. This class action was brought pursuant to 42 U.S.C. 405(g) challenging an internal policy of the Secretary of Health and Human Services that had the effect of denying disability benefits to numerous claimants who may have been entitled to them." (Bowen v. City of New York, 476 U.S. 467 (1986)) Oral argument for Bowen: http://www.oyez.org/cases/1980-1989/1985/1985_84_1923/argument/
6. Social Security Administration rules, regulations, policies and procedures may be overturned for unconstitutionality or conflict with judicial decisions. In Sullivan v. Finkelstein, 496 U.S. 617 (1990), the Supreme Court held that the government can appeal a district court decision remanding a case to the Agency when it has found a regulation invalid and the remand is for a determination consistent with that holding. "The Court of Appeals for the Third Circuit dismissed the Secretary's appeal for lack of jurisdiction. 869 F. 2d 215 (1989). The Court of Appeals relied on its past decisions holding that '"remands to administrative agencies are not ordinarily appealable.'" Id., at 217 (citation omitted). Although the Court of Appeals acknowledged an exception to that rule for cases '"in which an important legal issue is finally resolved and review of that issue would be foreclosed "as a practical matter" if an immediate appeal were unavailable,'" ibid. (citation omitted), that exception was deemed inapplicable in this case because the Secretary might persist in refusing benefits even after consideration of respondent's residual functional capacity on remand, and the District Court might thereafter order that benefits be granted, thereby providing the Secretary with an appealable final decision. Id., at 220." (Sullivan v. Finkelstein, 496 U.S. 617 (1990))
7. Plaintiffs, collectively, have paid into this "Social Security Insurance Trust Fund" for over 42 years, plus the amounts of non-refundable "overpayments", perhaps totalling the equivalent of over 120 years, according to business records in possession of Defendants. Defendants fail to provide any remedy for application of refund of overpayments of automatic withholdings of Social Security Insurance payments, contrary to Defendants' routine granting of refund of overpayment of income tax withholdings, in violation of due process.
8. Plaintiff John Lee was previously employed by a private corporation in a foreign nation (England, United Kingdom), in addition to his previously employment by U.S. Air Force, and an unknown amount of automatic withholdings may have been withheld from his paychecks. Such withholdings by "Superpower Racing Team" may have been applied toward a pension or disability insurance program, which now falls under international agreement for award of Social Security credits and benefits.
9. Defendants' Motion for Summary Judgment failed to provide Notice to pro se Plaintiffs of the Rule 56 FRCP requirement for notarized affidavits, or statements of fact signed under penalty of perjury. Plaintiffs move to strike Defendants' Motion for summary Judgment for lack of due process.
AMENDMENTS TO PRAYER FOR RELIEF
10. Reversal, or Remand to ALJ to reconsider Plaintiff John Lee's Residual Functional Capacity Questionaire, signed by Dr. Janet McNeil MD, is required for equity, to prevent res judica, as may occur if the Court dismisses without prejudice Plaintiffs current cause of action, requiring Plaintiff to refile a "new" claim with Defendants.
11. Plaintiffs also seek injunctive relief to require Defendants to immediately provide notice to all claimants, at all stages of claims, that a Residual Functional Capacity Questionaire is "REQUIRED", signed by their treating physician(s), before determination of all claims. Reportedly more than 7,600,000 claims for Social Security benefits are filed annually by claimants.
12. Plaintiffs also seek injunctive relief to require Defendants to immediately provide boilerplate Residual Functional Capacity Questionaire Forms, for each disease, symptom or disability, that have been awarded disability benefits for any previous claim, case or appeal.
13. Plaintiffs also seek injunctive relief to require Defendants, in all future Motions for Summary Judgment, to provide Notice to all pro se Plaintiffs of the requirement for notarized affidavits, or statements of fact signed under penalty of perjury, per Rule 56 FRCP, and Motions for Dismissal, per Rule 12 FRCP. Plaintiffs also request that this Notice be incorporated into this Court's Local Rules of Court, as is standard practice in many other U.S. District Courts, such as Eastern and Southern Districts of New York, Local Rules 56.2 and 12.1 Concerning Pro Se Litigants, Local Civil Rule 1.3, Local Civil Rule 11.1 and Local Civil Rule 1.5(e). http://www.nyed.uscourts.gov/Local_Documents/lcvr562lcr121lr15e.pdf
14. . Plaintiffs also seek injunctive relief to require Defendants to immediately provide forms to all workers subject to withholdings of Social Security "taxes" or "premiums", to allow for refund of overpayments of withholdings, backdated for at least three years, similar to what is currently provided for overpayment of "federal income taxes".
15. Plaintiffs also seek injunctive relief to require Defendants to cease and desist from transferring "Social Security Trust Funds" into the "General Fund", which is de facto theft of claimants' insurance premiums, providing financial motivation to Defendants to deny millions of legitimate claims.
This Amendment and Response is in addition to all other facts, statements, assertions, conclusions, citations, memorandums, briefs, exhibits, etc., previously presented by Plaintiffs.
Plaintiffs declare under penalty of perjury that the facts stated in this document are true to the best of their recollections or knowledge and belief.
Plaintiffs continue to seek permission for oral argument regarding these motions for summary judgment.
Respectfully submitted, April ______ , 2007
____________________________
John Lee, pro se
7486 Chapman Hwy #104
Knoxville, Tennessee 37920
____________________________
Tami Jean Lee, pro se
7486 Chapman Hwy #104
Knoxville, Tennessee 37920
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading was served on the following persons:
United States Attorney, counsel for Defendants
Eastern District of Tennessee
800 Market St. Suite 211
Knoxville, TN 37902
865-545-4167
Attorney General of U.S.
Washington DC 20530
General Counsel
Social Security Administration
Room 617 Altemeyer Bldg
6401 Security Blvd
Baltimore MD 21235
by depositing same in the United States mail, or by personal service, this _____ day of __________________ 2007.
____________________________
John Lee, pro se
7486 Chapman Hwy #104
Knoxville, Tennessee 37920