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P. Simmons
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 34728
Experience:  16 yrs. of trial experience
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Does section 205(h) prevent me from filing a claim damages?

Customer Question

Does section 205(h) prevent me from filing a claim for tort damages? The Social Security Administration made many mistakes on my Benefit Account and caused my son and I extreme hardship.
Submitted: 2 years ago.
Category: Legal
Expert:  P. Simmons replied 2 years ago.

My name is***** have over 16 years experience in the law. Should you like to chat on the phone I am happy to for a nominal cost. Let me know at any time during our question and answer session if you are interested I am happy to give you more details.

Subsection h limits your ability to sue after the hearing established by the commissioner is held. It does not address tort claims.

HOWEVER, the Federal Tort Claims Act (FTCA) would likely prevent you from filing a tort claim, since the FTCA exempts, among other things, claims based upon the performance, or failure to perform a "discretionary function or duty."

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 2 years ago.
What about Part 429 - Administrative Law Claims
Expert:  P. Simmons replied 2 years ago.

Sorry...what about in what respect...are you asking if you can sue the SS administration for a tort?

Customer: replied 2 years ago.
Does section 205(h) preclude me from filing a Tort Claim under Part 429?
Expert:  P. Simmons replied 2 years ago. does not. It would be the FTCA that would prevent you from filing a tort claim.

Customer: replied 2 years ago.
They messed up our account really bad. I was married to my husband for 18 years. We divorced and he remarried. He was married to her for 18 MONTHS and the he died of lymphoma cancer. Social Security refused to take my application for disabled widow's benefits. They then cut my mother's benefits to $1 per month. They tried to reduce my son's survivor benefits. They claimed overpaymets against both of us which they later waived. We lost our home, our dog died, and my son had to start his sophomore year in high school from a hotel room. We were financially, physically and psychologically damaged.
Customer: replied 2 years ago.
We have not yet, and may never fully recover from their mistakes.
Customer: replied 2 years ago.
I want to file a tort claim for $300,000 to recover our losses. Our home, our dog, our moving expenses...
Expert:  P. Simmons replied 2 years ago.

Ok. But I do not understand the specific question. As I mention you can not sue under 205h. You have to use the FTCA.

Customer: replied 2 years ago.
Section 205(h) states
Expert:  P. Simmons replied 2 years ago.

SOrry...I do not understand what

Section 205(h) states

means...would it help to talk on the phone about this?

Customer: replied 2 years ago.
No action against the United States... to recover any claim arising out of this TITLE.
The Office of General Counsel denied my tort claim under section 205(h).
What about my First Amendment Right to Redress of Grievances?
Expert:  P. Simmons replied 2 years ago.

I will send the phone offer...if you accept we can chat on the phone.

Customer: replied 2 years ago.
No, I'd rather have a transcript than talk on the telephone. This is huge for me, and I'm considering going into Federal Court Pro Se. I can't find a lawyer around here who will touch it. You don't have to worry about liability. I just want an opinion. The letter from the Office of General Counsel came in the mail yesterday.
Customer: replied 2 years ago.
Doesn't my first amendment right to Redress supercede section 205(h)? What about my damages that were caused by thier mistakes?
Expert:  P. Simmons replied 2 years ago.

I will opt out and allow others to assist you. I wish you the best of luck

Customer: replied 2 years ago.
It is disappointing that we are still suffering and continue to receive no legal help. I need an attorney who can assist me in Federal Court with this claim. I would be willing to enter new evidence or submit another claim as rep payee for my son in a much higher dollar amount because the Office of General Counsel denied my initial claim that I submitted under Part 429 on Form 95. We have been irreparably damaged by their egregious errors.
Customer: replied 2 years ago.
Customer: replied 2 years ago.
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 (1988). See Kennewick Irrigation District v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 (1991) (quotation omitted). '[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.' Berkovitz, at 535. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, at 322-23. Thus, the discretionary function exception protects only broad policy-based actions or decisions by government employees.