                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 NIDIA CALDERON,

                 Plaintiff,

         v.
                                                       Civil Action No. 17-494 (RDM)
 NANCY A. BERRYHILL, Deputy
 Commissioner for Operations, performing the
 duties and functions not reserved to the
 Commissioner of Social Security,

                 Defendant.


                                  MEMORANDUM OPINION

       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.




                                                 2
       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



                                                 3
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).




                                                 4
                                         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.     Rule 12(b)(1)

       The SSA contends that the Court should dismiss Calderon’s complaint for lack of

subject-matter jurisdiction—even as amended—because she has failed to exhaust her

administrative remedies. This contention, however, misapprehends the nature of the Social

Security Act’s exhaustion requirement and the Court’s prior opinion. In Calderon II, the Court

analyzed 42 U.S.C. § 405(g), which constitutes the exclusive grant of jurisdiction for courts to

review SSA decisions, and found that § 405(g) limits judicial review to a “final decision.” 2019

WL 95565, at *3. The Court also explained that the “final decision” requirement “‘consists of

two elements, only one of which is purely “jurisdictional” in the sense that it cannot be “waived”

by the Secretary in a particular case.’” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 328



                                                 5
(1976)). “‘The nonwaivable element is the requirement that a claim for benefits shall have been

presented to the Secretary;’” the “‘waivable element is the requirement that the administrative

remedies prescribed by the Secretary be exhausted.’” Id. (emphasis added). Simply put, before

a district court has jurisdiction to review an SSA decision, § 405(g) requires that a claimant

“present” her claim to the SSA, but the “presentment” requirement is not co-extensive with the

exhaustion of administrative remedies.

        After surveying the relevant case law, the Court also observed that there is a split among

lower courts about the meaning of “presentment.” Id. Some courts, for example, have required

only that an SSA claimant file a claim, while others have required both a filing and an initial

decision by the SSA. See id. (collecting cases). Under either approach, however, Calderon has

satisfied § 405(g)’s presentment requirement. Indeed, the “SSA does not contest”—nor could

it—that Calderon’s “amended complaint meets [the] threshold [presentment] requirement,” as

she “has filed a retirement claim and SSA has issued an initial decision.” Dkt. 42 at 4 (citing

Dkt. 41 at 1). As a result, the Court has subject-matter jurisdiction over Calderon’s challenge,

and the SSA’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) must, accordingly, fail. See Cost

v. SSA, 770 F. Supp. 2d 45, 49 (D.D.C. 2011) (citation omitted) (“A motion to dismiss under

Rule 12(b)(1) 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.”).

Having resolved the jurisdictional issue presented, the Court now turns to the motion for

dismissal for failure to state a claim.

B.      Rule 12(b)(6)

        Under Federal Rule of Civil Procedure 12(b)(6), a complaint that fails to “state a claim

upon which relief can be granted” is subject to dismissal. The SSA argues that dismissal is



                                                 6
warranted here because Calderon has failed to exhaust her administrative remedies. That

contention, however, again misunderstands the nature of the SSA exhaustion requirement.

Because Calderon’s amended complaint satisfies § 405(g)’s presentment requirement for the

reasons noted above, the SSA’s remaining exhaustion defense is an affirmative defense, not a

jurisdictional defense. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court clarified that,

when exhaustion is non-jurisdictional, plaintiffs “are not required to specially plead or

demonstrate exhaustion in their complaints.” 549 U.S. at 216. Although Jones was decided in

the context of a different statutory scheme, its logic applies here. Plaintiffs raising claims under

§ 405(g) need only plead and prove the jurisdictional “presentment” requirement. By contrast,

the waivable exhaustion requirement is an affirmative defense that claimants are “free to omit

. . . from their pleadings.” Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011); see also

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (holding that “the defendant bears

the burden of pleading and proving” exhaustion when it is an affirmative defense).

       Of course, “even when failure to exhaust is treated as an affirmative defense, it may be

invoked in a Rule 12(b)(6) motion if the complaint somehow reveals the exhaustion defense on

its face.” Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir. 2007). But that is not the case here.

Rather, Calderon’s complaint provides “scant information about [her] underlying claim,”

Thibeaux v. SSA, No. 12-01588, 2015 WL 12964650 at *5 (D.D.C. Oct. 20, 2015), report and

recommendation adopted, 2016 WL 7839127 (D.D.C. Apr. 18, 2016), and fails to allege facts

sufficient to resolve the SSA’s failure-to-exhaust defense. The SSA’s reliance on documents

outside the pleadings confirm this conclusion. In support of its motion, the SSA offers the

declaration of Michael Sampson, an employee of SSA’s Office of Appellate Operations, and five

exhibits, which together explain the agency’s appellate procedure and provide the relevant SSA



                                                  7
documents for Calderon’s case. See Dkt. 42-1. The SSA repeatedly cites the Sampson

declaration and its exhibits in its motion, while—notably—failing to identify any allegations in

Calderon’s complaint relevant to the exhaustion issue. See, e.g., Dkt. 42 at 3–4 (repeatedly

citing to the Sampson declaration).

       The Court, accordingly, cannot determine whether the SSA is entitled to prevail on its

failure-to-exhaust defense, without “go[ing] beyond the face of the complaint and conduct[ing]

further inquiry.” Kim, 632 F.3d at 719. The Court cannot do so within the four corners of a

motion to dismiss pursuant to Rule 12(b)(6). See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,

1059 (D.C. Cir. 2007) (internal citation and quotation omitted) (“In determining whether a

complaint states a claim, the court may consider the facts alleged in the complaint, documents

attached thereto or incorporated therein, and matters of which it may take judicial notice.”).

B.     Rule 56

       This does not end the inquiry, however, because the SSA requests that, if necessary, the

Court “convert [its motion to dismiss] to a motion for summary judgment.” Dkt. 42 at 5. Before

doing so, the Court must assure itself that Calderon has received fair “notice and an opportunity

to present evidence in support of [her] . . . position[,]” Kim, 632 F.3d at 719, and “that summary

judgment treatment would be fair to both parties,” Tele–Commc'ns of Key W., Inc. v. United

States, 757 F.2d 1330, 1334 (D.C. Cir. 1985); see also Fed. R. Civ. P. 12(d) (requiring that

“parties must be given a reasonable opportunity to present all the material that is pertinent to the

motion” before a Rule 12(b)(6) motion may be treated as a motion for summary judgment).

       Rule 12(d)’s requirements of notice and a reasonable opportunity to present controverting

evidence and argument present no obstacle here. To start, the SSA’s motion expressly requests

that the Court, if necessary, treat the motion as a motion for summary judgment. Dkt. 42 at 5.



                                                  8
As a result, Calderon “had notice that [the SSA’s] motion was, at least potentially, one for

summary judgment.” Colbert v. Potter, 471 F.3d 158, 168 (D.C. Cir. 2006). To be sure, that

notice would have been clearer had the SSA moved, in the alternative, for summary judgment.

See id. The SSA’s request that the Court convert the motion to one for summary judgment was,

however, with one exception, functionally equivalent. That one exception—that the SSA did not

file a statement of materials facts not in dispute—moreover, was cured by the Court’s Minute

Order, filed the day after the SSA filed its motion, requiring the SSA to file a “statement of

material facts as to which the moving party contends there is no genuine issue,” and requiring

Plaintiff to file, along with her opposition, “a separate concise statement of genuine issues”

responding to the SSA’s statement. Minute Order (Feb. 2, 2019). Finally, any doubt about

Calderon’s notice and opportunity to present responsive evidence and argument is put to rest by

the Court’s further order, issued that same day, advising Calderon that the SSA had moved, “in

the alternative, for Summary Judgment,” and advising her of the relevant requirements that Rule

56 imposes on a party opposing summary judgment. Dkt. 43 (Fox/Neal Order). The Court will,

therefore, convert the SSA’s motion into a motion for summary judgment.

       A motion for summary judgment requires the movant to show “that there is no genuine

dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the

governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d

689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

When considering a motion for summary judgment, the “evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty Lobby, 477 U.S.



                                                  9
at 255. In the instant motion, the SSA argues that there is no genuine dispute that Calderon has

failed to exhaust her administrative remedies and that, as a result, the agency is entitled to

judgment as a matter of law. See Dkt. 42 at 7.

       Under the Social Security Act, judicial review is available only after a “final decision of

the Commissioner of Social Security made after a hearing to which [the litigant] was a party.”

42 U.S.C. § 405(g). “[T]he term ‘final decision’ is not only left undefined by the Act, but its

meaning is left to the Secretary to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749,

766 (1975). Consistent with this framework, the Secretary has promulgated regulations

establishing a four-step administrative review process, that an aggrieved party must complete to

exhaust her administrative remedies: (1) the aggrieved party must obtain an initial determination;

(2) if that determination is adverse, she must seek reconsideration of that determination; (3) if

she is “dissatisfied with the reconsideration determination,” she must request a hearing before an

ALJ; and (4) if she is “dissatisfied with the decision of the” ALJ, she must seek review by the

SSA Appeals Council. See 20 C.F.R. § 404.900(a)(1)-(4); see also id. § 416.1400(a)(1)–(4).

Only after “complet[ing] the[se] steps” may an aggrieved party “request judicial review by filing

an action in a Federal district court.” 20 C.F.R. § 404.900(a)(5). Although the regulations also

establish a process for obtaining expedited review in a federal district court—where, for

example, the aggrieved party does not dispute the SSA’s findings of fact or its application or

interpretation of controlling law but believes that a part of the law is unconstitutional—Calderon

does not invoke that provision and does not assert the type of challenge contemplated by the

expedited review provision. See id. § 404.900(a)(6).

       The undisputed facts show that Calderon has not completed the SSA’s four-step review

process. The Sampson declaration attests that Calderon has obtained an initial decision, Dkt. 42-



                                                 10
1 at 2 (Decl. ¶ 3(b)); has sought and been denied reconsideration, id. at 3 (Decl. ¶¶ 3(c), (e)); but

has not “requested a hearing” before an ALJ or obtained a decision from an ALJ, id. (Decl.

¶ 3(f)); see also id. at 11 (Def. Ex. 2); id. at 17 (Def. Ex. 4); id. at 28 (Def. Ex. 5). Calderon does

not dispute these facts. The evidence in the record also demonstrates that Calderon received

notice that she had the right to request a hearing to contest the denial of her request for

reconsideration. See id. at 3 (Def. Ex. 5). Despite this notice, she neither claims nor provides

any evidence that she took any steps beyond seeking reconsideration. As a result, the

uncontroverted record establishes that Calderon has failed to exhaust her remedies. This failure

to exhaust is “fatal to [Calderon’s] claims unless the Court determines the exhaustion

requirement should be excused.” Hall v. Sebelius, 689 F. Supp. 2d 10, 23 (D.D.C. 2009).

       As the Court has previously explained, § 405(g) includes both a jurisdictional

“presentment” requirement and a non-jurisdictional “exhaustion” requirement. Calderon II,

2019 WL 95565, at *3 (citing Mathews, 424 U.S. at 328); see also Triad at Jeffersonville I, LLC

v. Leavitt, 563 F. Supp. 2d 1, 16 (D.D.C. 2008). Although the non-jurisdictional exhaustion

requirement is not absolute, waiver is available only in “exceptional circumstances.” UDC

Chair Chapter, Am. Ass’n of Univ. Professors v. Bd. of Trs. of UDC, 56 F.3d 1469, 1475 (D.C.

Cir. 1995) (internal quotation and citation omitted)). “A court may waive the exhaustion

requirements of § 405(g) when (1) the issue raised is entirely collateral to a claim for payment;

(2) plaintiffs show they would be irreparably injured were the exhaustion requirement enforced

against them;” or where “(3) exhaustion would be futile.” Triad at Jeffersonville I, LLC, 563 F.

Supp. 2d at 16 (citing Bowen v. City of New York, 476 U.S. 467, 483–85 (1986)). Under those

circumstances, a court may waive the requirement, but only if the “‘litigant’s interests in

immediate judicial review outweigh the government’s interests in the efficiency or



                                                  11
administrative autonomy that the exhaustion doctrine is designed to further.’” Am. Hosp. Ass’n

v. Azar, 348 F. Supp. 3d 62, 75 (D.D.C. 2018) (quoting Avocados Plus Inc. v. Veneman, 370

F.3d 1243, 1247 (D.C. Cir. 2004)).

       Calderon fails to offer any basis to conclude that her failure to exhaust should be excused

on the present record. Her claim is not collateral to a claim for payment; rather, she seeks to

adjust the payments that she is receiving—and will in the future receive—from the SSA. She

has failed to offer any evidence or argument suggesting that time is of the essence and that,

absent immediate judicial review, she will sustain an irreparable loss. Nor has she offered any

basis to conclude that exhaustion would have been futile. Notably, “[t]he futility exception only

applies where exhaustion would be ‘clearly useless,’ such as where the agency ‘has indicated

that it does not have jurisdiction over the dispute, or because it has evidenced a strong stand on

the issue in question and an unwillingness to reconsider the issue.’” Lazaridis v. SSA, 856 F.

Supp. 2d 93, 98 (D.D.C. 2012) (quoting Randolph-Sheppard Vendors v. Weinberger, 795 F.2d

90, 105–06 (D.C. Cir. 1986)). Here, however, nothing in the record suggests that exhaustion

“would be futile because the Secretary’s procedures are infirm, or because the Secretary has

adopted a clandestine policy.” Abbey v. Sullivan, 978 F.2d 37, 45 (2d Cir. 1992). And

disregarding the exhaustion requirement merely because the agency decided on reconsideration

that its initial determination was “correct and proper,” Dkt. 42-1 at 36, Def. Ex. 5, would

undermine the statutory and regulatory goal of ensuring that aggrieved parties obtain a

considered and final determination from the SSA before filing suit.

         Finally, the Court notes that the SSA’s February 13, 2019 denial granted Calderon sixty

days to request a hearing, subject to extension only upon a showing of good cause. Id. at 28

(Def. Ex. 5); see also 20 C.F.R. § 404.933(b)(1) (providing that a claimant has “60 days after the



                                                 12
date [she] receive[s] notice” to request a hearing). The notice also indicated that this 60-day

deadline began to run five days after the date on the notice, meaning that Calderon had until

April 19, 2019 to request a hearing. There is no evidence that she has done so, and, therefore,

Calderon may be unable to obtain a hearing absent a showing of good cause. Although the Court

recognizes that it might now be too late for Calderon to seek a hearing before an ALJ,1 “one

cannot avoid an exhaustion requirement merely by delaying beyond the time that an

administrative proceeding must be brought,” Steadman v. Governor, U.S. Soldiers’ & Airmen’s

Home, 918 F.2d 963, 968 (D.C. Cir. 1990). “Were the rule otherwise, an exhaustion requirement

could be circumvented all too easily.” Id.

                                         CONCLUSION

       For the foregoing reasons, the Court will grant the SSA’s motion for summary judgment,

Dkt. 42.

       A separate order will issue.

                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
                                                      United States District Judge

Date: September 20, 2019




1
  The Court notes that, under SSA regulations, good cause exists when “within 60 days of
receiving the [reconsideration decision] . . . [the claimant] filed a civil suit.” 20 C.F.R. §
404.911(b)(5). The Court expresses no view on whether that or any other basis might exist for
extending the 60-day requirement in this case.
                                                13
