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Suarez v. Colvin

United States District Court, D. Columbia

October 27, 2015


          HUGO ABSALON SUAREZ, Plaintiff, Pro se.

         For CAROLYN W. COLVIN, Defendant: Mary Ellen Russell, LEAD ATTORNEY, SOCIAL SECURITY ADMINISTRATION, Office of the General Counsel, Baltimore, MD.


         KETANJI BROWN JACKSON, United States District Judge.

         In February of 2005, the Social Security Administration (" SSA" ) learned that Plaintiff Hugo Absalon Suarez, a recipient of Social Security benefits, had been deported to his native Mexico following a period of incarceration for gun and alien transportation convictions. By statute, Plaintiff's conviction of a gun possession offense and his subsequent deportation automatically disqualified him from receiving Social Security retirement benefits, see 42 U.S.C. § 402(n); 8 U.S.C. § 1227(a)(2)(C); consequently, after receiving notice of Plaintiff's deportation, the SSA terminated his benefits ( e.g., social security payments and Medicare health insurance). Plaintiff has filed the instant lawsuit pro se, seeking to challenge the SSA's termination of his retirement benefits without a pre-termination hearing, and he has also launched a series of attacks through the administrative process. First, Plaintiff unsuccessfully sought relief directly from the SSA; then, he appealed to an administrative law judge (" ALJ" ), and presently, his appeal of the most recent ALJ decision rejecting the pre-termination hearing argument is pending before the Appeals Council of the Office of Disability Adjudication and Review (" Appeals Council" ).

         Before this Court at present is Defendant's motion to dismiss the instant complaint for failure to exhaust administrative remedies. (ECF No. 6.) This Court referred this matter to a Magistrate Judge for full case management, and that judge recommended that Defendant's motion be denied, and that the case be permitted to proceed, on the grounds that it would be futile to require exhaustion of remedies under the circumstances presented here. (ECF No. 15.) Defendant filed a timely objection to the Report and Recommendation, arguing that exhaustion should not be excused (ECF No. 16), to which Plaintiff filed a response (ECF No. 19.)

         On September 30, 2015, this Court issued an Order that declined to accept the recommendation of the Magistrate Judge. ( See ECF No. 20.) This Memorandum Opinion explains the reasons for that order. In sum, after a thorough review of the Report and Recommendation, the parties' briefs, the record, and established case law, this Court finds that the requirements for waiving the prudential exhaustion requirement have not been satisfied in this case. Accordingly, and as explained fully below, Defendant's motion to dismiss the complaint has been GRANTED, and Plaintiff's case has been DISMISSED for lack of exhaustion.

         I. BACKGROUND

         In October of 1998, Plaintiff, a Mexican national who had been legally residing in the United States for a number of years, was arrested on a number of felony charges and subsequently pled guilty to transporting an alien within the United States, in violation of 8 U.S.C. § § 1324(a)(1)(A)(ii) and (a)(1)(A)(II), and possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). See United States v. Absalon, 210 F.3d 369, 2000 WL 294449, at *1 (5th Cir. 2000) (table) (affirming Plaintiff's " guilty-plea convictions and sentences for transporting an alien within the United States and being a felon in possession of a firearm" ). ( See also Compl., ECF No. 1, at 1; Ex. XXVIII to Compl., Sentence Monitoring Computation Data (" Sentence & Detainer Rpt." ), ECF No. 1-4, at 45.)[1] At the time of his imprisonment, Plaintiff was collecting Social Security retirement benefits, and he continued to do so until the spring of 1999, when the SSA learned that he was incarcerated and suspended his benefits. (Ex. XV to Compl., Order of Appeals Council Remanding Case to ALJ (Feb. 26, 2010) (" Remand Order" ), ECF No. 1-1, at 38.) Notably, the SSA maintains that it overpaid Plaintiff by approximately $2,803 in retirement benefits during this period (Remand Order at 38), because the law prohibits payment of Social Security benefits to incarcerated individuals, see 42 U.S.C. § 402(x)(1)(A),

         Plaintiff claims that the SSA informed him that he could request reinstatement of his benefits upon his release from prison by visiting a local Social Security Office. (Ex. I to Compl., E-mail from Hugo Absalon Suarez to Erika Webber, Consular Assistant (Mar. 8, 2005), ECF No. 1-1, at 2.) However, when Plaintiff was released from prison on December 23, 2004, prison authorities immediately turned him over to the U.S. Immigration and Naturalization Service (" INS" ) pursuant to a deportation detainer that was issued as a result of Plaintiff's gun conviction. (Compl. at 3; Sentence & Detainer Rpt.) INS then immediately deported Plaintiff to Mexico. (Compl. at 3; Sentence & Detainer Rpt.)

         When the SSA learned of Plaintiff's deportation in February of 2005, it invoked 42 U.S.C. § 402(n), which bars payment of benefits to certain deportees, including those convicted of weapons offenses, and terminated Plaintiff's previously-suspended benefits. (Ex. XXIV to Compl., ALJ Decision (Aug. 2, 2011), ECF No. 1-4, at 33-34.) Although the SSA did not hold a pre-termination hearing, it did afford Plaintiff the opportunity to object in writing to the termination decision. (Ex. III to Compl., Ltr. from Carolyn L. Simmons, Assoc. Comm'r for Cent. Operations, to Hugo Absalon (Sept. 6, 2005), ECF No. 1-1, at 5.) In February of 2006, Plaintiff requested that the SSA reconsider its termination of his benefits, and on March 28, 2006, the SSA upheld its decision. (Ex. II to Compl., Request for Reconsid., ECF No. 1-1 at 4; Ex. VI to Compl., Ltr. from Carolyn L. Simmons, Assoc. Comm'r for Cent. Operations, to Hugo Absalon (Mar. 28, 2006), ECF No. 1-1, at 16.)

         By letter dated April 23, 2006, Plaintiff expressed his " disagree[ment] with the decision" on his request for reconsideration regarding termination of his benefits, and asked for a hearing before an ALJ. (Ex. VIII to Compl., Ltr. from Hugo Absalon Suarez to SSA (April 23, 2006), ECF No. 1-1, at 19.) The ALJ granted Plaintiff's hearing request, which also included potential consideration of the SSA's claim that Plaintiff had been previously overpaid, but Plaintiff ultimately could not attend the scheduled hearing because he was unable to obtain a visa to reenter the United States. (Remand Order at 39.) When Plaintiff did not appear at the scheduled hearing, the ALJ dismissed Plaintiff's case on the grounds that Plaintiff had " admitted to not living in the United States and was[,] therefore, no longer eligible to receive benefits." ( Id. (internal quotation marks omitted).) On appeal, the Appeals Council vacated this initial ALJ decision, finding that it was procedurally improper due to the ALJ's seeming failure to reach the merits of Plaintiff's benefits termination claim and the fact that the ALJ did not undertake to address the overpayment question at all. ( See id. at 39-40 (remanding the matter to the ALJ for " additional development and further consideration[,]" and commanding the ALJ to " issue a decision based on the evidence of record regarding whether the [SSA] properly ceased [Plaintiff's] benefits due to deportation and concerning the issue of overpayment" ).

         On remand, the ALJ attempted to schedule a supplemental hearing, but Plaintiff was again unable to attend because of his visa situation. (Ex. XXIII to Compl., Ltr. from Hugo Absalon to SSA (Apr. 26, 2011), ECF No. 1-4, at 25-26.) As such, and at Plaintiff's request, the ALJ issued " a decision on-the-record" without a hearing ( see id. ), in which the judge made two findings: first, that Plaintiff was not liable for the overpayment of Social Security benefits to him that had occurred because of the lag between when he was incarcerated in October of 1998 and when the SSA learned of his incarceration, and second, that the complete termination of all retirement benefits based on Plaintiff's deportation was consistent with the law. (ALJ Decision at 33-34.) Plaintiff appealed the latter part of the ALJ's decision to the Appeals Council on August 2, 2011, asserting that the SSA had denied him due process by terminating his benefits without providing him a pre-termination opportunity to be heard. (Ex. XXV to Compl., Notice of Appeal, ECF No. 1-4, at 37-39.)

         On May 29, 2013--while his administrative appeal was still pending ( see Compl. at 15)--Plaintiff filed the instant pro se complaint, in which he reasserts that the SSA denied him due process of law with respect to the termination of his retirement benefits. On July 24, 2013, Defendant filed a motion to dismiss for lack of subject matter jurisdiction arguing that Plaintiff's complaint should be dismissed because of the ongoing administrative appeal. (Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 6.)

         As mentioned above, this Court referred the entire case for full case management to a Magistrate Judge, and the Magistrate Judge subsequently issued a Report and Recommendation that recommended that Defendant's exhaustion-related motion to dismiss be denied on the basis of futility. ( See R. & R., ECF No. 15, at 11-12.) To support this conclusion, the Report and Recommendation referenced a written " Notice" that the Appeals Council sent to Plaintiff the day after the complaint in the instant case was filed, in which the Council notified Plaintiff of its decision to review the ALJ's ruling based on a number of factors and stated that it was providing notice of its " plan" to reverse the ALJ's ruling in part. ( Id. at 11; Ex. 3 to Decl. of Patrick J. Herbst (" Appeals Council Notice" ), ECF No. 6-2, at 19 (explaining the Council's view that the ALJ's " decision finding that you are 'not without fault' in causing the overpayment" was erroneous and should be reversed, but that the Council also intended to " affirm the Administrative Law Judge's findings that the Social Security Administration was correct in ceasing your benefits" ). The Notice also informed Plaintiff that he had the opportunity to " send us more evidence or a statement about the facts and the law in your case within 30 days of the date of this letter." (Appeals Council Notice at 19.) Pointing to this letter, the Magistrate Judge's Report and Recommendation maintained that " [t]he record supports a finding that requiring ...

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