National Taxpayers Union v. United States Social Security Administration

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NATIONAL TAXPAYERS UNION,
Plaintiff-Appellant,
v.
UNITED STATES SOCIAL SECURITY
ADMINISTRATION; KATHY A. BULLER, No. 03-2232 
in her official capacity as Chief
Counsel to the Inspector General of
the United States Social Security
Administration,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CA-02-3949-WMN-1)
Argued: May 7, 2004
Decided: July 15, 2004
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge Luttig joined. Judge Wilkinson wrote a concurring opin-
ion.
COUNSEL
ARGUED: Michael Edward Geltner, GELTNER & ASSOCIATES,
Washington, D.C., for Appellant. Tara Leigh Grove, Appellate Staff,

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Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Thomas M. DiBiagio, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland; Mark B. Stern, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees.
OPINION
SHEDD, Circuit Judge:
This appeal presents the question whether the National Taxpayers
Union may challenge the constitutionality of § 1140 of the Social
Security Act, 42 U.S.C. § 1320b-10, in federal district court before
the Social Security Administration undertakes administrative proceed-
ings to enforce that provision against NTU. We hold that it may not.
Under Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the dis-
trict court lacks jurisdiction over NTU’s pre-enforcement challenge to
the statute.
I.
The National Taxpayers Union ("NTU") is a non-profit organiza-
tion engaged in research, education, and public advocacy concerning
issues that it considers important to American taxpayers. One such
issue is the financial stability of the Social Security program. As part
of its campaign to reform the Social Security program, NTU distrib-
uted a mass mailing comprised of a letter and a survey. In the letter,
NTU argued that the Social Security program is in a dire financial
condition and desperately in need of structural reform. The survey
posed eight questions seeking respondents’ reactions to the current
condition of the Social Security program as well as NTU’s favored
reform, personal investment accounts. Both the letter and the survey
solicited financial contributions for NTU. The mailing was marked,
"OFFICIAL NATIONAL SURVEY ON SOCIAL SECURITY COM-
MISSIONED BY THE NATIONAL TAXPAYERS UNION FOR
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THE SOCIAL SECURITY ADMINISTRATION, WHITE HOUSE
AND CONGRESS OF THE UNITED STATES." The enclosed sur-
vey was titled, "OFFICIAL SURVEY ON SOCIAL SECURITY."
The Social Security Administration ("SSA") advised NTU that its
mailing violated § 1140 of the Social Security Act. Section 1140 pro-
hibits the use of the words "Social Security" or certain related words
in connection with any advertisement, solicitation, or other communi-
cation in a manner that conveys or could reasonably be construed as
conveying the false impression that such advertisement or solicitation
is approved, endorsed, or authorized by the SSA or other government
agencies. 42 U.S.C. § 1320b-10(a)(1). The SSA requested that NTU
cease distribution of its surveys.
NTU initially indicated that it would change the design of its mail-
ing to comply with the statute. The revised mailing contained the fol-
lowing language: "OFFICIAL NATIONAL SURVEY ON SOCIAL
SECURITY CONDUCTED BY THE NATIONAL TAXPAYERS
UNION AND COMMISSIONED FOR THE WHITE HOUSE[,]
UNITED STATES HOUSE OF REPRESENTATIVES [AND]
UNITED STATES SENATE." The survey title, "OFFICIAL SUR-
VEY ON SOCIAL SECURITY," remained unchanged.
After the SSA expressed its dissatisfaction with NTU’s revised
mailing and threatened enforcement action, NTU filed this lawsuit
against the SSA in the district court. NTU alleged that § 1140 is
facially invalid because it is unconstitutionally overbroad; § 1140 is
unconstitutional as applied to NTU’s revised mailing, which contains
only legitimate, truthful representations; and the SSA’s threat of
enforcement amounts to a prior restraint of protected speech.
The district court granted the SSA’s motion to dismiss the com-
plaint. First, the court ruled that it lacked jurisdiction to consider
NTU’s pre-enforcement challenge to the constitutionality of § 1140.
Relying on Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994),
the district court held that the administrative review procedures
described in the relevant statutes are the exclusive means for attacking
§ 1140 prior to its actual enforcement against NTU. The district court
then dismissed NTU’s prior restraint claim on the ground that the
SSA’s threatening enforcement action through administrative proce-
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dures was not so burdensome as to amount to a prior restraint. This
appeal followed.1
II.
We review de novo the district court’s dismissal of NTU’s com-
plaint for lack of subject-matter jurisdiction. See Columbia Gas
Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001). "In
cases involving delayed judicial review of final agency actions, we
shall find that Congress has allocated initial review to an administra-
tive body where such intent is ‘fairly discernible in the statutory
scheme.’" Thunder Basin, 510 U.S. at 207 (quoting Block v. Commu-
nity Nutrition Inst., 467 U.S. 340, 351 (1984)). In determining
whether Congress intended to preclude initial judicial review in this
instance, we consider "the statute’s language, structure, and purpose,
its legislative history, and whether the claims can be afforded mean-
ingful judicial review." Id.
A.
The Supreme Court held in Thunder Basin that a district court
lacks subject-matter jurisdiction to entertain pre-enforcement chal-
lenges to the Mine Safety and Health Amendments Act of 1977, 30
U.S.C. § 801 et seq. ("Mine Act"). 510 U.S. at 202, 208. First, the
Court noted that the statute "establishes a detailed structure for
reviewing violations of any mandatory health or safety standard, rule,
order, or regulation promulgated under the Act." Id. at 207. Under the
Mine Act, a mine operator can challenge an adverse agency order
before an administrative law judge, whose decision is reviewable by
the Mine Safety and Health Review Commission. If the mine operator
is dissatisfied with the Commission’s ruling, it can challenge that rul-
ing in the appropriate court of appeals, which has exclusive jurisdic-
tion over such cases. Id. at 207-08. Moreover, while the Mine Act
expressly authorizes district court jurisdiction over actions by the Sec-
retary of Labor to enjoin habitual violations, it does not confer juris-
1On appeal, NTU argues only that the district court erred by dismissing
its constitutional challenge to § 1140. NTU does not seek to revive its
prior restraint claim, and we do not address that claim here.
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diction over actions by mine operators complaining about agency
actions. Id. at 209.
Second, the Court concluded that the legislative history of the Mine
Act suggests that "Congress intended to direct ordinary challenges
under the Mine Act to a single review process." Id. at 211. This legis-
lative history indicated that "enforcement was hobbled by a cumber-
some review process" under the predecessor statute and that Congress
expressly rejected a proposal for de novo review of agency actions in
the district courts. Id.
Third, the Court concluded that the claims asserted in the com-
plaint fell within the class of claims that Congress intended to be
adjudicated within the review process described by the statute. Thun-
der Basin, 510 U.S. at 212. Thunder Basin’s statutory claims fell
squarely within the agency’s expertise, and its constitutional due pro-
cess claim could be decided by the Commission. Id. at 214-15. In any
event, the Court noted that Thunder Basin’s statutory and constitu-
tional claims could be "meaningfully addressed in the [c]ourt of
[a]ppeals." Id. at 215.
B.
The statutory scheme at issue here resembles the Mine Act scheme
in all relevant respects, and it too "establishes a detailed structure for
reviewing violations" of the statute. Thunder Basin, 510 U.S. at 207.
Section 1140 authorizes the SSA to impose civil monetary penalties
of up to $5,000 (or $25,000 in the case of a broadcast or telecast) per
violation against any person who misuses the phrase "Social Security"
in violation of the statute. 42 U.S.C. § 1320b-10(b), (d). Section 1140
further provides a detailed procedure for assessment and review of
such penalties. Id. § 1320b-10(c)(1) (incorporating most of the provi-
sions of 42 U.S.C. § 1320a-7(a), which governs civil monetary penal-
ties with respect to other violations concerning Social Security).
Under this procedure, the SSA may initiate an enforcement action
within six years of the alleged violation by serving notice of such
action as required by the Federal Rules of Civil Procedure. 42 U.S.C.
§ 1320a-7a(c)(1). The alleged violator is guaranteed an opportunity to
be heard, with the right to be represented by counsel and the right to
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present and cross-examine witnesses. Id. § 1320a-7a(c)(2). Any party
aggrieved by the ruling of the agency may petition the appropriate
court of appeals to review that ruling; upon the filing of the record,
the jurisdiction of the court of appeals is exclusive. Id. § 1320a-7a(e).
Like the Mine Act, the statute here makes no distinction between
pre-enforcement and post-enforcement claims. See Thunder Basin,
510 U.S. at 208-09. Also like the Mine Act, the statute here specifi-
cally authorizes district courts to exercise jurisdiction over certain
actions brought by the agency but not by private parties. 42 U.S.C.
§ 1320b-10(c)(2); 42 U.S.C. § 1320a-7a(k). Thus, the text and struc-
ture of § 1140 indicate Congress’ intention that challenges to that stat-
ute be adjudicated, at least initially, in the administrative review
process. Cf. Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d 867, 873
(D.C. Cir. 2002) (OSHA); Great Plains Coop v. CFTC, 205 F.3d 353,
355 (8th Cir. 2000) (Commodity Exchange Act); Northeast Erectors
Ass’n of BTEA v. Secretary of Labor, 62 F.3d 37, 39-40 (1st Cir.
1995) (OSHA).
The Court in Thunder Basin consulted the legislative history of the
Mine Act to confirm the conclusion it drew from the text and struc-
ture of the statute.2 Although there is scant legislative history to con-
sider specifically with respect to the substance of § 1140, the
legislative history underlying the civil monetary penalties provision
(incorporated by § 1140) shows that Congress specifically rejected a
proposal allowing alleged violators to challenge final agency actions
in trials de novo in district court. See Pub. L. No. 97-35, § 2105 (codi-
fied at 42 U.S.C. § 1320a-7a); H.R. Conf. Rep. No. 97-208, at 950
(1981), reprinted in 1981 U.S.C.C.A.N. 1010, 1312. This legislative
history is similar to that in Thunder Basin and likewise suggests that
Congress intended pre-enforcement challenges to § 1140 to be adjudi-
2In no way did the Court suggest, as NTU now argues, that the legisla-
tive history stands on equal footing with the text and structure of the stat-
ute or that specific legislative history is necessary to conclude that
Congress intended to preclude initial judicial review. The Court con-
cluded from the text and structure of the Mine Act that Congress
intended to preclude initial judicial resolution of Thunder Basin’s claims;
the legislative history merely "confirm[ed] this interpretation" of the stat-
ute. Thunder Basin, 510 U.S. at 207-09.
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cated in the first instance by the administrative agency rather than the
district courts. See 510 U.S. at 211.
We further conclude that the claims asserted in this case are "of the
type Congress intended to be reviewed within this statutory struc-
ture." Thunder Basin, 510 U.S. at 212. The Court in Thunder Basin
noted that it might be appropriate to bypass administrative review in
cases involving "claims considered ‘wholly collateral’ to a statute’s
review provisions and outside the agency’s expertise, particularly
where a finding of preclusion could foreclose all meaningful judicial
review." Id. at 212-13 (internal citations omitted). Such is not the case
here.
On appeal, NTU asserts only constitutional claims, attacking the
substantive provision of § 1140 — the prohibition against certain uses
of the phrase "Social Security" — as a violation of the First Amend-
ment on its face and as applied. Although "adjudication of the consti-
tutionality of congressional enactments has generally been thought
beyond the jurisdiction of administrative agencies," the Court in
Thunder Basin noted that "[t]his rule is not mandatory" and concluded
that a district court does not have jurisdiction to entertain an initial
challenge to the constitutionality of the Mine Act. Id. at 215. The
Court seems to have rested its conclusion on the fact that the plain-
tiff’s constitutional claim could be meaningfully addressed by the
court of appeals in due course. Id. In this case, even if the administra-
tive agency elects not to decide the constitutional claims presented by
NTU, this court can do so at the appropriate time. See Shalala v. Illi-
nois Council on Long Term Care, Inc., 529 U.S. 1, 23-24 (2000) (cit-
ing Thunder Basin for the proposition that a court reviewing an
agency determination "has adequate authority to resolve any statutory
or constitutional contention that the agency does not, or cannot,
decide"); Virginia v. United States, 74 F.3d 517, 523 (4th Cir. 1996)
(citing Thunder Basin for the proposition that "[t]here is simply no
impediment to the adjudication of constitutional issues through peti-
tions for direct review of final agency action in the circuit courts").3
3This is not a case in which the plaintiff challenges the validity of the
agency’s enabling statute in an action wholly independent of the agen-
cy’s enforcement of a substantive provision. See, e.g., Time Warner
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"The limitation imposed here is channeling of initial review
through the administrative process, not exclusion of judicial supervi-
sion." Eastern Bridge, LLC v. Chao, 320 F.3d 84, 90 (1st Cir. 2003).
NTU’s constitutional claims are of the type Congress intended to be
adjudicated in the statutory review process, and that process will give
NTU a meaningful opportunity to litigate its constitutional challenge
to § 1140. Accordingly, we conclude that NTU’s claims must be adju-
dicated initially under the administrative review scheme established
by Congress in the statute.
III.
Because the administrative review procedures available here are
nearly indistinguishable from those at issue in Thunder Basin, and
because the claims asserted here are of the type Congress intended to
be adjudicated, at least initially, through the administrative review
scheme, the district court properly ruled that it lacked subject-matter
Entm’t Co., L.P. v. FCC, 93 F.3d 957 (D.C. Cir. 1996) (noting that the
plaintiff’s challenge to certain statutory provisions was "entirely inde-
pendent of any agency proceedings, whether actual or prospective").
Rather, NTU brought this action in anticipation of imminent enforcement
proceedings, and its arguments amount to defenses to enforcement of
§ 1140. Nor is this a case in which permitting the constitutional chal-
lenge in district court would be consistent with other statutory provisions
authorizing suits in district court. See, e.g., Action for Children’s Televi-
sion v. FCC, 59 F.3d 1249 (D.C. Cir. 1995) (permitting the plaintiff to
bypass administrative review where the relevant statute authorized suits
in district court to collect on a forfeiture order, such that the plaintiff’s
challenging the constitutionality of the forfeiture statute in defense
against such a collection action was entirely consistent with the statutory
scheme). NTU’s challenge is aimed at the substantive provision of
§ 1140 — the prohibition against certain uses of the phrase "Social
Security" — not the SSA’s authority to impose civil monetary penalties
for violation of that provision. In sum, NTU’s complaint represents an
impermissible attempt to evade the administrative review scheme estab-
lished by Congress. Cf. Thunder Basin, 510 U.S. at 216; American Fed’n
of Gov’t Employees, AFL-CIO v. Loy, 367 F.3d 932, 936 (D.C. Cir.
2004); Sturm, Ruger, 300 F.3d at 876; Great Plains Coop, 205 F.3d at
354-55; Northeast Erectors, 62 F.3d at 40.
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jurisdiction over this case. The decision of the district court is there-
fore
AFFIRMED.
WILKINSON, Circuit Judge, concurring:
We do not have before us a pre-enforcement challenge to a statute
that seeks to silence criticism of the operation of a government pro-
gram. All that is at issue is a statute that forbids the impersonation of
a federal agency by a private organization bent on sowing confusion
among beneficiaries of a program and thereby thwarting the purposes
it was intended to serve. In this context, Congress had unquestionable
authority to adopt the administrative procedures that it did. Compare
Matthews v. Eldridge, 424 U.S. 319, 331 n.11 (1976) (emphasizing
that the "nature of the claim being asserted and the consequences of
deferment of judicial review" will often bear on whether district court
jurisdiction is proper prior to final agency disposition).
I am thus happy to concur in Judge Shedd’s fine opinion.
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