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Calderon v. Berryhill

United States District Court, District of Columbia

September 20, 2019

NIDIA CALDERON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Nidia Calderon, proceeding pro se, filed this action against the Social Security Administration (“SSA”), seeking the payment of certain retirement benefits. The SSA has moved to dismiss for lack of subject-matter jurisdiction on the grounds that Calderon failed to exhaust her administrative remedies, or in the alternative, that Plaintiff has failed to state a claim upon which relief can be granted. Dkt. 42 at 2. For the reasons set forth below, the Court will grant the SSA’s motion.

         I. BACKGROUND

         The Court has twice described the factual and procedural history of this case, see Calderon v. Berryhill, 322 F.Supp. 3d 137 (D.D.C. 2018) (“Calderon I”) and Calderon v. Berryhill, No. 17-494, 2019 WL 95565 (D.D.C. Jan. 3, 2019) (“Calderon II”), and, accordingly, will repeat that background only as relevant here.

         Calderon originally brought this action in D.C. Superior Court in February 2017, alleging that the SSA should be compelled (1) to defer making monthly payments to her based on her own earnings and, instead, (2) to make payments based on her former spouse’s earnings record. Dkt. 1-1. The SSA removed that action to this Court and moved to dismiss for lack of subject-matter jurisdiction, arguing that Calderon failed to exhaust her administrative remedies. Dkt. 12. The Court denied that motion without prejudice because the SSA had failed to file the exhibits that it relied upon in its motion. Minute Order (Jan. 18, 2018).

         On May 24, 2017, about four months after the first dismissal, Calderon filed an application for retirement insurance benefits with the SSA. Dkt. 42-1 at 2 (Sampson Decl. ¶ 3(a)). Five days later, the SSA awarded Calderon monthly retirement benefits based on her own employment record, and two weeks later the agency awarded her benefits based on her former spouse’s employment record. Id. (Sampson Decl. ¶ 3(b)); id. at 11–16 (Def. Exs. 2 & 3). Shortly thereafter, Calderon sought administrative reconsideration of the SSA’s action, explaining that she was seeking to delay benefits based on her own earnings and, instead, merely sought to receive benefits based on her former spouse’s employment record. Id. at 3 (Sampson Decl. ¶ 3(c)); id. at 18 (Def. Ex. 4). In response, the SSA concluded that its original decision was correct and, accordingly, denied reconsideration. Id. at 3 (Sampson Decl. ¶ 3(e)); id. at 28– 36 (Def. Ex. 5). Among other things, the SSA explained that, because Calderon applied for benefits based on her former spouse’s employment record, she was “also deemed to have applied for retirement benefits.” Id. at 32. The SSA’s letter denying Calderon’s request for reconsideration advised her that she had “60 days to ask for a hearing” before an Administrative Law Judge (“ALJ”); offered her assistance in completing the paperwork required to request a hearing; and explained that the 60-day period to seek a hearing could be extended only for “good reason.” Id. at 28–29.

         While the administrative process was ongoing, the SSA sought to dismiss Calderon’s civil action on the ground that she had failed to exhaust her administrative remedies. On January 23, 2018, the SSA renewed its original motion to dismiss, again urging the Court to dismiss Calderon’s suit for lack of subject-matter jurisdiction. Dkt. 22. Upon reviewing the SSA’s second motion, the Court concluded that the agency addressed a different claim than the one Calderon asserted in her complaint; rather than addressing her retirement benefits claim, the SSA’s motion addressed Calderon’s 2011 Supplemental Security Income (“SSI”) claim. Because that claim had nothing to do with this case, the Court again denied the SSA’s motion to dismiss. Calderon I, 322 F.Supp. 3d at 138.

         On January 3, 2019, the SSA filed a third motion, again seeking to dismiss Calderon’s suit for failure to exhaust. Calderon II, 2019 WL 95565, at *1. In addressing that motion, the Court held that, because it was SSA’s third motion to dismiss, the Court would “entertain the motion only to the extent it challenge[d] the Court’s subject-matter jurisdiction.” Id. at *2 (citing Fed.R.Civ.P. 12(g)(2)). Non-jurisdictional defenses were not considered because, as the Court explained, “‘a party that makes a motion under [Rule 12] must not make another motion [to dismiss] raising a defense or objection that was available to the party but omitted from its earlier motion, ’ Fed.R.Civ.P. 12(g)(2), except to the extent such a motion challenges the court’s subject-matter jurisdiction.” Id. (citing Fed.R.Civ.P. 12(h)(3); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1384 & 1393 (3d ed. 2018)).

         After considering the parties’ submissions, the Court concluded that Calderon had not alleged facts or offered evidence sufficient to show that the Court had jurisdiction to consider her suit. Id. at *4. Calderon filed the action on February 2, 2017, three months before filing-i.e., “presenting”-her claim to the SSA on May 24, 2017. Id. Because jurisdiction is determined at the date the complaint is filed, § 405(g)’s jurisdictional “presentment” requirement was not satisfied when Calderon filed her complaint, and, therefore, the Court lacked jurisdiction. Id. In granting the motion to dismiss, the Court left for Calderon the decision whether to amend her complaint to allege that she satisfied § 405(g)’s presentment requirement (as needed for this Court to exercise jurisdiction) or to “wait for a final administrative decision from the Social Security Administration and reinstate her lawsuit at a later date.” Calderon II, 2019 WL 95565, at *5.

         On January 30, 2019, Calderon filed a pleading, Dkt. 41, which the Court deemed an amended complaint. Minute Order (Jan. 30, 2019). The SSA has now filed its fourth motion to dismiss. Dkt. 42. As with its prior motions, SSA seeks dismissal on the ground that the Court lacks subject-matter jurisdiction because Calderon has not exhausted her administrative remedies. Id. at 2. In the alternative, the SSA argues that Calderon has failed to state a claim upon which relief can be granted and moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), id., or requests that the Court, if necessary, “convert [the SSA’s motion] to a motion for summary judgment, ” id. at 5. The day after the SSA filed its motion, the Court entered an order noting that the SSA sought, in the alternative, to treat its motion as a motion for summary judgment and, accordingly, ordered that the SSA file a statement of material facts not in dispute and it also ordered that, in responding to the motion, Calderon file “a separate concise statement of genuine issues” that she contends are in dispute. Minute Order (Feb. 14, 2019). At the same time, the Court advised Calderon that the SSA had moved, in the alternative, for summary judgment and advised her of the requirements of Federal Rule of Civil Procedure 56. Dkt. 43 (Fox/Neal Order).

         II. ANALYSIS

         Because SSA moves to dismiss on several grounds (most of which fail), the Court must “do some procedural untangling” to “reach [the] bottom line” in this case. Osborn v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015). As set out below, the Court holds that dismissal is not appropriate under Rule 12(b)(1) because Calderon has satisfied § 405(g)’s presentment requirement and thus, the Court has subject-matter jurisdiction. Second, the Court holds that dismissal is also improper under Rule 12(b)(6) because the SSA relies almost entirely on materials outside the pleadings. But, finally, the Court concludes that the SSA’s motion should be converted to a motion for summary judgment, as the SSA requested, and that the SSA has carried its burden on summary judgment of demonstrating, based on the undisputed record, that Calderon failed to exhaust her administrative remedies and that her case falls into none of the recognized exceptions to the exhaustion requirement.

         Accordingly, the Court will grant the SSA’s motion for summary judgment.

         A. ...


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