Order Granting Dismissal of Defendant Apfel

Defendant Kenneth S. Apfel, Commissioner of the Social Security Administration (SSA), moved to dismiss the Third Amended Complaint on two grounds.  First, Defendant Apfel contends that Plaintiffs’ claims against him are barred by the Administrative Procedures Act (APA) which precludes judicial review of decisions “committed to agency discretion.”  Second, Defendant Apfel asserts that Plaintiffs failed to exhaust their administrative remedies and cannot justify waiver of the exhaustion requirement.  For the reasons that follow, the Court agrees with Defendant Apfel’s first argument and, therefore, GRANTS his motion and DISMISSES him from this action.¹