Ware El v. Social Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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ROBERT D. WARE EL, )
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Plaintiff, )
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v. ) Case No. 19-cv-01684 (TNM/GMH)
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SOCIAL SECURITY )
ADMINISTRATION, )
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Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
In this action, Plaintiff Robert D. Ware El (“Plaintiff”), who proceeds pro se, appeals a
decision of the Social Security Administration (“Defendant” or “SSA”) denying his request for
retirement insurance benefits under Section 202(a) of the Social Security Act, 42 U.S.C. § 402 et
seq. See ECF Nos. 1, 10-3. Plaintiff alleges that Defendant failed to consider his additional earn-
ings when it determined that he did not have sufficient work credits to be considered insured and
thus eligible for retirement insurance benefits. Id. Defendant has filed a motion to dismiss Plain-
tiff’s complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that the fed-
eral courts lack subject matter jurisdiction over this case because Plaintiff failed to exhaust his
administrative remedies. See ECF No. 10 at 2, 4. Although Plaintiff’s opposition to Defendant’s
motion to dismiss was due on September 27, 2019, he has failed to respond to the motion as of the
date of this Memorandum Opinion.
As explained below, Rule 12(b)(1), which governs motions to dismiss for lack of subject-
matter jurisdiction, is not the proper vehicle for Defendant’s motion because Plaintiff has satisfied
the Social Security Act’s jurisdiction prerequisite by presenting his claim to the SSA. However,
consistent with the practice of other courts in this District, rather than recommending denial of the
motion so that Defendant can file a procedurally proper motion, Defendant’s motion will be con-
verted to a Rule 56 motion for summary judgment and the parties shall be given an opportunity to
present further evidence and briefing.
I. BACKGROUND
A. Retirement Insurance Benefits Under the Social Security Act
To be eligible for retirement insurance benefits under Section 202(a) the Social Security
Act, the claimant must (1) be fully insured, (2) have attained age 62, and (3) have filed an appli-
cation for benefits. 42 U.S.C. § 402(a). As relevant here, a claimant is considered “fully insured”
if the claimant has at least 40 quarters of coverage, 42 U.S.C. § 414(a)(2), meaning that the claim-
ant has made “contributions to Social Security over at least 40 quarters of a work life,” Hall v.
Sebelius, 770 F. Supp. 2d 61, 65 n.2 (D.D.C. 2011). The Social Security Act defines a quarter as
a period of three calendar months ending March 31, June 30, September 30, or December 31. 42
U.S.C. § 413(a).
B. Plaintiff’s Claims and Procedural History
Plaintiff was 62 years old in 2015. See ECF No. 10-3 at 1. He applied for retirement
insurance benefits on November 30, 2017. Id. Defendant initially denied his application on April
1, 2018, on the grounds that Plaintiff did not have the requisite 40 quarters of coverage, also known
as work credits. See ECF No. 1; ECF No. 10-3 at 1. According to Defendant’s records, Plaintiff
has only 39 work credits and therefore is not eligible for retirement insurance benefits. See ECF
No. 10-3 at 1, 3. After Plaintiff filed a timely request for reconsideration, Defendant affirmed its
initial decision in a Reconsideration Determination dated August 1, 2018. Id. On June 6, 2019,
apparently without first seeking a hearing before an Administrative Law Judge (“ALJ”), Plaintiff
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filed a federal complaint against the SSA seeking to reverse its decision denying his application
for retirement insurance benefits. ECF No. 1. Defendant thereafter filed its motion to dismiss the
complaint for lack of jurisdiction.
II. LEGAL STANDARD
A motion under Rule 12(b)(1) “presents a threshold challenge to the court’s [subject-mat-
ter] jurisdiction” over the case before it. Thomas v. Wash. Metro. Area Transit Auth., 305 F. Supp.
3d 77, 81 (D.D.C. 2018) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Where
its power to hear a case is at issue, a court will subject a plaintiff’s complaint to “closer scrutiny”
than on a motion to dismiss for failure to state a claim under Rule 12(b)(6). See, e.g., Walsh v.
Comey, 118 F. Supp. 3d 22, 25 (D.D.C. 2015). Thus, unlike a Rule 12(b)(6) motion, a court ruling
on a Rule 12(b)(1) motion may consider evidence beyond the four corners of the complaint and
material subject to judicial notice. See Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 195–96
(D.D.C. 2002). Indeed, where a party mounts a factual challenge—that is, it attacks the “underly-
ing facts contained in the complaint” rather than merely the allegations included on the face of the
complaint—the court “must weight the allegations of the complaint and evidence outside the plead-
ings in order to ‘satisfy itself as to the existence of its power to hear the case.’” Flynn v. Ohio
Bldg. Restoration, Inc., 260 F. Supp. 2d 156, 162 (D.D.C. 2003) (emphasis added) (quoting Lough-
lin v. United States, 230 F. Supp. 2d 26, 35 (D.D.C. 2002)); see also Robinson v. Gov’t of Malaysia,
269 F.3d 133, 141 n.6 (2d Cir. 2001) (“A district court ‘may’ consult evidence to decide a Rule
12(b)(1) motion in contrast with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted, where it may not. It ‘must’ do so if resolution of a proffered factual
issue may result in the dismissal of the complaint for want of jurisdiction.”).
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III. DISCUSSION
Defendant asserts that this Court lack subject matter jurisdiction to hear Plaintiff’s claims
because Plaintiff failed to exhaust his administrative remedies before filing his complaint. See
ECF No. 10 at 1. In support, Defendant submitted a declaration from the SSA’s Acting Chief of
Court Case Preparation and Review Branch 3 of the Office of Appellate Operations, which asserts
that SSA records show “no indication of an Administrative Law Judge decision or a request for
review before the Appeals Council relating to the plaintiff . . . , closed, pending, or otherwise.”
ECF No. 10-2 at 3. While Defendant’s evidence may be sufficient to show that Plaintiff failed to
exhaust his administrative remedies, see Carter–Frost v. District of Columbia, 305 F. Supp. 3d 60,
74 (D.D.C. 2018) (relying on the defendant’s affidavit finding “no record of any complaint” to
support its conclusion that “there is no evidence that [the plaintiff] filed any complaint or regularly
complained to her supervisors”), contrary to its argument, such a failure to exhaust does not de-
prive a court of jurisdiction over this matter.
A federal district court has jurisdiction over a civil case challenging a final decision of the
Commissioner of Social Security. 42 U.S.C. § 405(g). The Social Security Act does not define
“final decision,” but it authorizes the Commissioner to outline the requisite criteria by regulation.
See 42 U.S.C. § 405(a); see also Weinberger v. Salfi, 422 U.S. 749, 766 (1975). Social Security
regulations provide that a claimant can seek judicial review of a final decision regarding claims
under Title II of the Social Security Act only after completing the following four steps of the
administrative review process: (1) an initial determination by the SSA as to the claimant’s eligi-
bility for benefits; (2) reconsideration of that decision; (3) a decision after a hearing before an ALJ;
and (4) review of the ALJ’s decision by the Appeals Council. 20 C.F.R. § 404.900(a). Claimants
have sixty days to appeal a decision at each of the four stages in the process, although a claimant
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may seek an extension “by showing good cause in writing.” Cost v. Soc. Sec. Admin., 770 F. Supp.
2d 45, 47–48 (D.C. Cir. 2011). “The Appeals Council’s decision is considered final, and a claim-
ant may seek judicial review of that decision in district court.” Id. at 48.
However, the Supreme Court has “previously recognized that the doctrine of administrative
exhaustion should be applied with a regard for the particular administrative scheme at issue.”
Weinberger, 422 U.S. at 765. For social security claims, the Supreme Court has interpreted §
405(g) to contain both jurisdictional and non-jurisdictional elements, which bears directly on the
administrative exhaustion analysis. See Mathews v. Eldrige, 424 U.S. 319, 328 (1976); see also
Cost, 770 F. Supp. 2d at 48. The jurisdictional and “nonwaivable element is the requirement that
a claim for benefits shall have been presented” to the agency. Mathews, 424 U.S. at 328. The
non-jurisdictional and waivable element is that the claimant exhaust the SSA’s administrative rem-
edies through all four steps of the administrative review process. Id. “When exhaustion is non-
jurisdictional, plaintiffs ‘are not required to specially plead or demonstrate exhaustion in their
complaints.’” Calderon v. Berryhill, No. 17-cv-494 (RDM), 2019 WL 4575605, at *3 (D.D.C.
Sept. 20, 2019) (quoting Jones v. Bock, 549 U.S. 199, 216 (2007)); cf. Tapp v. Wash. Metro. Area
Transit Auth., 283 F. Supp. 3d 1, 5 (D.D.C. 2017) (“Whether a plaintiff in a Title VII case has
timely exhausted administrative remedies is not a jurisdictional requirement, but is an affirmative
defense that the defendant bears the burden of proving by a preponderance of the evidence”). In
other words, the jurisdictional and nonwaivable “‘presentment’ requirement is not co-extensive
with the exhaustion of administrative remedies.” Calderon, 2019 WL 4575605, at *3. As such, a
plaintiff can satisfy the jurisdictional element even if he or she does not attempt each of the four
steps of administrative process required under the Social Security regulations. See Weinberger,
422 U.S. at 766-67; see also Calderon, 2019 WL 4575605 at *3 (dismissing the SSA’s Rule
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12(b)(1) motion to dismiss because plaintiff sufficiently presented her retirement claim and re-
ceived an initial determination). A Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction “is inappropriate where a defendant claims that a plaintiff failed to comply with only
the non-jurisdictional exhaustion requirement.” Cost, 770 F. Supp. 2d at 49 (citing Hall, 689 F.
Supp. 2d at 22).
Here, as Plaintiff alleges and Defendant has shown, Plaintiff completed the first two steps
of the administrative review process by receiving an initial determination and then a reconsidera-
tion determination from the SSA. See ECF No. 1 at 1; ECF No. 10-3 at 3. To be sure, the precise
meaning of “presentment” has “generated some uncertainty,” with some courts appearing to re-
quire “some decision” by the agency, Calderon, 2019 WL 95565, at *3 (quoting Nat’l Kidney
Patients Assoc. v. Sullivan, 958 F.2d 1127, 1131 (D.C. Cir. 1992)), and others “not—at least ex-
plicitly—limit[ing] the ‘presentment’ requirement to circumstances in which there has been ‘some
decision’” by the agency, id. (citing, among other cases, Ryan v. Bentsen, 12 F.3d 245, 247 (D.C.
Cir. 1993)). Here, however, “the Court need not step into this thicket,” Calderon v. Berryhill, No.
17-cv-494 (RDM), 2019 WL 95565, at *4 (D.D.C. Jan. 3, 2019), because Plaintiff has satisfied
the more demanding standard requiring “some decision” by the agency. He has therefore satisfied
the jurisdictional prerequisite to filing an action in federal court. As a result, Defendant should
not have brought its motion under Rule 12(b)(1).
However, the fact that Defendant chose the wrong rule under which to file its motion need
not be fatal—although teeing up the dispute here requires “some procedural untangling.” Calde-
ron, 2019 WL 4575605, at *2 (quoting Osborne v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir.
2015)). In circumstances like this one, courts in this district have first treated the Rule 12(b)(1)
motion as a motion to dismiss under Rule 12(b)(6) for failure to state a claim and then, because
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the SSA has relied on evidence outside of the pleadings, which is generally prohibited on a Rule
12(b)(6) motion, converted, pursuant to Rule 12(d), the Rule 12(b)(6) motion to a motion for sum-
mary judgment under Rule 56. See, e.g., Thibeaux v. Soc. Sec. Admin., No. 12-cv-01588
(RWR/AK), 2015 WL 12964650, at *4–5 (D.D.C. Oct. 20, 2015) (treating a Rule 12(b)(1) motion
arguing that the plaintiff had failed to fully exhaust administrative remedies as a motion under
Rule 12(b)(6) and converting it to Rule 56 motion for summary judgment), report and recommen-
dation adopted, No. 12-cv-1588 (EGS), 2016 WL 7839127 (D.D.C. Apr. 18, 2016), aff’d, No. 16-
5099, 2016 WL 6915553 (D.C. Cir. Oct. 6, 2016); Cost, 770 F. Supp. 2d at 49 (same).
Rule 12(d) allows a Rule 12(b)(6) motion to be converted to a Rule 56 motion for summary
judgment as long as all parties are provided the opportunity to “present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). Moreover, because Plaintiff proceeds in this case
pro se, he is entitled under Circuit precedent to a so-called Fox/Neal notice, which will inform him
of his responsibilities in opposing a motion for summary judgment, including the submissions
required by Rule 56 and this Court’s Local Civil Rules. Therefore, it is hereby
ORDERED that, pursuant to Rule 12(d), Defendant’s motion to dismiss (which is con-
strued as a motion under Rule 12(b)(6)) is converted to a Rule 56 motion for summary judgment.
A further Order will accompany this Memorandum Opinion providing Plaintiff a Fox/Neal notice
and setting a schedule for further submissions.
Digitally signed by G.
SO ORDERED. Michael Harvey
Date: 2019.11.07
Date: November 7, 2019 ___________________________________
13:50:56 -05'00'
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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