           United States Court of Appeals
                      For the First Circuit


No. 16-2227

         DANIEL JUSTINIANO; FRANCISCO MENÉNDEZ; PERSON A,

                      Plaintiffs, Appellants,

                                v.

   SOCIAL SECURITY ADMINISTRATION; NANCY A. BERRYHILL, Acting
      Commissioner of the Social Security Administration,*

                      Defendants, Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Jay A. García-Gregory, U.S. District Judge]


                              Before

                        Howard, Chief Judge,
               Torruella and Barron, Circuit Judges.


     Javier Andrés Colón Volgamore for appellants.
     Thomas Pulham, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Rosa E. Rodríguez-Vélez, United
States Attorney, and Mark B. Stern, Attorney, Appellate Staff,
Civil Division, were on brief, for appellees.




     * Pursuant to Fed. R. App. P. 43(c)(2), Acting Commissioner
of the Social Security Administration Nancy A. Berryhill has been
substituted for former Acting Commissioner of the Social Security
Administration Carolyn W. Colvin as defendant-appellee.
November 21, 2017
           BARRON,    Circuit    Judge.        The        Social    Security

Administration ("SSA") terminated the disability benefits that

Daniel   Justiniano   and   Francisco    Menéndez    --    the   plaintiffs-

appellants -- had been receiving.1         The SSA did so based on a

concern that the medical evidence that supported Justiniano's and

Menéndez's applications for those benefits was fraudulent because

in each case that evidence was traceable to a physician who was

the subject of a federal fraud investigation.

           Justiniano and Menéndez each challenged administratively

the SSA's decision to terminate the benefits for which they had

applied.    Justiniano and Menéndez contended that, among other

things, the SSA, in so deciding, neither adequately notified them

of the evidence of fraud nor provided them with an opportunity to

challenge that evidence.     Justiniano and Menéndez contended that,

in consequence, the SSA violated their constitutional right to due

process of law and their rights under the Social Security Act and

its implementing regulations.

           Before the two men had exhausted the administrative

review process, however, they filed suit in federal court.                In

that suit, they sought various kinds of relief based presumably on

the same grounds as the claims that they had presented to the SSA



     1 The complaint also names "Person A" as a plaintiff. But,
because the plaintiffs do not discuss this third plaintiff in their
appellate brief, neither do we do so here.


                                 - 3 -
in seeking to continue to receive their benefits.           The government

moved to dismiss the suit, and the District Court did so for lack

of subject matter jurisdiction based on the plaintiffs' failure to

have exhausted their administrative remedies.

             Justiniano and Menéndez now appeal that jurisdictional

ruling.    Because they have failed to show that they could not

obtain a restoration of their benefits through the administrative

review process, despite evidence suggesting that they would have

a substantial chance of doing so, we affirm.

                                    I.

             The undisputed facts are drawn from the complaint and

certain documents and affidavits that were filed by the parties

below.    See Aversa v. United States, 99 F.3d 1200, 1209–10 (1st

Cir. 1996).       For several years, Justiniano and Menéndez received

benefits under the Social Security disability insurance program

established by Title II of the Social Security Act, 42 U.S.C.

§§ 401-34.

             In   November   of   2013,    however,   the   SSA   notified

Justiniano and Menéndez that their benefits were being suspended

pending a redetermination of their entitlement to them.           The SSA

was acting pursuant to a provision in the Social Security Act, 42

U.S.C. § 405(u), by which "[t]he Commissioner of Social Security

shall immediately redetermine the entitlement of individuals to

monthly insurance benefits . . . if there is reason to believe


                                   - 4 -
that fraud or similar fault was involved in the application of the

individual for such benefits." Id. § 405(u)(1)(A). Section 405(u)

provides that, during the redetermination process, the SSA "shall

disregard" any evidence in an application for benefits that the

agency has "reason to believe" is fraudulent.            Id. § 405(u)(1)(B).

And, the provision further specifies, the SSA "may terminate" a

claimant's benefits if, after reviewing what evidence is left in

the application for benefits, "there is insufficient evidence to

support [an] entitlement" to benefits.            Id. § 405(u)(3).

          Here,   the    SSA's     notices   to   Justiniano   and   Menéndez

explained that a redetermination of the disability benefits that

each had been receiving was necessary because each of their

applications    for   those      benefits    possibly    contained   medical

evidence from one of several suspects who was under federal

investigation for fraud in connection with the filing of disability

benefits applications.        Those notices indicated, however, that

additional evidence could be presented to the SSA in support of

the disability benefits application.          Medical reports from doctors

whom Justiniano and Menéndez allege they consulted were received

by the agency following those notices.

          Within two months of sending the notices regarding the

suspension of the benefits, the SSA completed the process of

redetermining   the     benefits    for     Justiniano   and   Menéndez   and

separately notified each of them of the termination of the benefits


                                    - 5 -
that they had been receiving.       Each termination notice explained

that the SSA had "disregarded" medical evidence in the benefits

application that had been provided by a physician who had pleaded

guilty in the fraud investigation.         In consequence, each notice

explained that, based on a review of the evidence that remained in

each application for benefits, the applicant was "not disabled"

and thus not entitled to disability benefits.

          Each plaintiff requested reconsideration of the SSA's

decision to terminate benefits.           The SSA then confirmed its

termination decisions in the summer of 2014.           The SSA advised both

Justiniano and Menéndez that they could appeal from the benefits

termination     decisions    by   requesting     a     hearing   before   an

administrative law judge ("ALJ").         Both Justiniano and Menéndez

did so.

          In October of 2015, however, in advance of any hearing

before an ALJ on either Justiniano's or Menéndez's administrative

appeal, they jointly filed this suit in the United States District

Court for the District of Puerto Rico.           Their complaint in that

suit challenges the SSA's termination of their benefits on the

following grounds.

          The    complaint    alleges     that   the    SSA's    termination

decision in each case was made without providing (1) adequate

notice of the evidence of fraud that the SSA relied on in making

its decision to disregard the medical evidence contained in the


                                  - 6 -
plaintiffs' benefits' applications and (2) any opportunity to

challenge the finding of fraud in their individual cases.2                The

plaintiffs also deny in their complaint that any medical evidence

in their benefits applications was fraudulent.             Their complaint

thus alleges that the SSA "reopen[ed]" the plaintiffs' cases "in

bulk" simply by relying on evidence of fraud from "unrelated" cases

that merely happened to contain medical evidence from the same

physicians who provided evidence in the plaintiffs' cases.

           The    complaint    further   alleges    that   the   termination

notices that the SSA sent to the plaintiffs were "boilerplate"

that neither informed the plaintiffs "what actions (if any) by the

plaintiffs constituted fraud" nor identified "what evidence the

[SSA] relied on to make its decision."        In addition, the complaint

alleges that the plaintiffs were "not allowed to challenge the

decision   that   fraud   or   similar     fault   was   present   in   their

individual cases" and that, during the redetermination process,

"[t]he only evidence that would be received was evidence of [a]

medical nature and only evidence in support of a finding of the



     2 The complaint also alleges that the SSA "failed to provide
the plaintiffs with adequate notice of the intent to terminate
benefits." The government pointed out at oral argument that the
plaintiffs have not developed any argument as to why the SSA's
initial notices of suspension pending a redetermination of
eligibility for benefits provided insufficient notice of the SSA's
intent to terminate benefits. We agree, and we therefore consider
the issue waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).


                                   - 7 -
existence of impairment," thus excluding any "[e]vidence of the

existence or inexistence of fraud."

            On    the     basis    of    these   allegations,   the    complaint

contends that the SSA's benefits termination decisions violated

various legal requirements.             In particular, the complaint alleges

that "[t]he presumption of fraud inherent in the [SSA's] decisions

violates the plaintiffs' Fifth Amendment right to the due process

of law."    In this regard, the complaint asserts that "[t]he basic

[tenets] of due process require that the [SSA] carry the initial

burden of proof of fraud in the specific cases before the cases

can be reopened, the medical determinations revised and benefits

terminated.      Due process further requires adequate notification of

any accusation against the plaintiffs . . . ."

            The complaint also alleges that the SSA's termination

process violated the Social Security Act and its implementing

regulations.      Specifically, the complaint alleges that the SSA had

"reopen[ed]"      the     cases     without      complying   with     20     C.F.R.

§ 404.988(c)(1), which provides that "[a] determination, revised

determination, decision, or revised decision may be reopened . . .

[a]t any time if . . . [i]t was obtained by fraud or similar

fault."    The complaint contends that the regulation’s reference to

the   reopening      of     “[a]    determination”      (singular)         requires

redeterminations to be made "on a case by case basis" based on

evidence of fraud specifically tied to each individual case.


                                         - 8 -
             The     relief    that   the    plaintiffs       seek    in    their    suit

includes       a     declaratory      judgment         that     the        SSA's     bulk

redetermination of their disability benefits violated the federal

Constitution, the Social Security Act, and certain regulations;

actual   and       statutory    damages;     and   a    reinstatement         of    their

benefits.3     The plaintiffs also request payment of benefits that

were not paid during the termination period and an injunction

against billing them for an overpayment of benefits.                       Moreover, in

their complaint, Justiniano and Menéndez seek to assert not only

their own claims but also those of a putative class of similarly

situated people whose disability benefits had been terminated in

connection with the same federal fraud investigation that formed

the basis for the decision to terminate their benefits.

             Before    Justiniano      and    Menéndez    moved       to    have    their

putative class certified, however, the SSA filed a motion to

dismiss. The motion sought dismissal, in part, under Rule 12(b)(6)



     3  A second count in the complaint alleges additional
constitutional, statutory, and regulatory violations based on the
plaintiffs' allegation that the SSA hearing office to which the
plaintiffs' cases had been assigned was not processing their
administrative appeals.    The complaint includes a request for
declaratory and injunctive relief on this count as well. However,
on appeal, although the plaintiffs' statement of facts in their
opening   brief  states   that   the  hearing   office  "received
instructions to not process the cases until SSA provided further
instructions," the plaintiffs' arguments pertain only to their
complaint's first count that the SSA's termination process was
unlawful.   They have thus waived any arguments with respect to
their second count. See Zannino, 895 F.2d at 17.


                                       - 9 -
of the Federal Rules of Civil Procedure on the ground that the

plaintiffs had failed to state a claim upon which relief could be

granted.   The motion also sought dismissal under Rule 12(b)(1) on

the ground that, regardless of the merits of the plaintiffs' legal

claims, the District Court lacked subject matter jurisdiction

under 42 U.S.C. §§ 405(g) and (h) because the plaintiffs had failed

to exhaust the administrative remedies available to them before

filing suit.

           Section 405(g) provides that "[a]ny individual, after

any final decision of the Commissioner of Social Security made

after a hearing to which he was a party . . . may obtain review of

such decision" in federal district court.    And Section 405(h) in

turn states:

           No action against the United States, the
           Commissioner of Social Security, or any
           officer or employee thereof shall be brought
           under   section    1331    [federal   question
           jurisdiction] or 1346 [federal defendant
           jurisdiction] of Title 28 to recover on any
           claim arising under this subchapter [governing
           the Social Security old-age, survivors, and
           disability insurance programs].

           In consequence of these two provisions, a claim for

benefits that "arises under" the Social Security Act must comply

with Section 405(g) in order for a federal district court to have

jurisdiction over that claim. There are generally two requirements

that must be met in order for a claim for benefits that "arises




                              - 10 -
under" the Social Security Act to be in compliance with Section

405(g).

          First, "a claim for benefits shall have been presented

to the Secretary."    Mathews v. Eldridge, 424 U.S. 319, 328 (1976).4

Second, "the administrative remedies prescribed by the Secretary

[must] be exhausted."    Id.    These two requirements together ensure

that an individual seeking federal judicial relief in a case

"arising under" the Social Security Act is doing so, as Section

405(g) requires, "after any final decision of the Commissioner of

Social Security made after a hearing to which he was a party."

          Importantly     for        present    purposes,    although    the

presentment   requirement       is     not     waivable,    the   exhaustion

requirement may be.     Id.    Moreover, in some cases, the exhaustion

requirement is waived by the federal court itself and thus without

the Secretary's consent through what is known as a judicial waiver

of exhaustion. Heckler v. Ringer, 466 U.S. 602, 618 (1984) (citing

Eldridge, 424 U.S. at 330-32).5


     4 The Court's reference to a "claim for benefits" with respect
to the presentment requirement does not necessarily indicate that
the claim pertains to a substantive entitlement to benefits. In
Eldridge itself, for example, the Court found that the presentment
requirement was satisfied because a "claim for benefits" had been
presented to the agency, even though the claim was deemed "entirely
collateral to [the plaintiff's] substantive claim of entitlement."
424 U.S. at 328, 330-31.
     5 The term "waiver" is, arguably, a misnomer insofar as the
court itself -- as opposed to the agency -- would not seem to have
any authority to "waive" a statutory requirement. More precisely,
the judicial waiver doctrine approved by the Supreme Court reflects


                                     - 11 -
          With    respect   to   the   jurisdictional   question,   the

government argued in its motion to dismiss that the plaintiffs'

claims in their complaint "arise under" the Social Security Act.

The government further argued that the plaintiffs had not yet

received "final decisions" from the SSA because although the

plaintiffs presented their claims to the SSA, they failed to

exhaust the administrative appeals process.         Accordingly, the

government contended that the District Court lacked subject matter

jurisdiction.

          The plaintiffs responded below to the motion to dismiss

for lack of subject matter jurisdiction by arguing that the claims

in their complaint did not "arise under" the Act.       The plaintiffs

contend on appeal that they also argued below, in the alternative,

that -- even assuming that their claims did "arise under" the Act

-- the plaintiffs qualified for a judicial waiver of the exhaustion

requirement.     With respect to judicial waiver, the plaintiffs

contend that they asserted that the claims set forth in their

complaint in federal court were "fit for resolution" and "outside

of the Commissioner's discretion," and that "exhaustion of the

current administrative procedure would be futile" and further




an interpretation of Section 405(g) according to which Congress is
understood not to have intended the statutory requirement to apply
in certain types of cases, notwithstanding that the agency contends
otherwise.


                                 - 12 -
delays would result in "undue hardships, dire need and undue

suffering."

            The   plaintiffs       also    argued      that,   insofar     as   the

exhaustion requirement would otherwise bar their claims from being

heard in federal court, the plaintiffs were still entitled to bring

their suit in federal court pursuant to Shalala v. Illinois Council

on Long Term Care, Inc., 529 U.S. 1 (2000).              Illinois Council held

that where Section 405(h) "would not simply channel review through

the agency, but would mean no review at all" by the federal courts

of the agency action, then Section 405(h)'s jurisdictional bar

does not apply.       Id. at 19.

            The District Court granted the government's motion to

dismiss for lack of subject matter jurisdiction (and thus did not

address whether the complaint failed to state a claim).                         The

District Court reasoned that the plaintiffs' claims arose under

the Social Security Act, and thus that the plaintiffs had to meet

the presentment and exhaustion requirements in order to comply

with the requirements of Section 405(g).                   The District Court

concluded     that,    although     the     plaintiffs     complied      with   the

presentment    requirement,       the     plaintiffs    did    not   satisfy    the

exhaustion requirement because the plaintiffs had neither obtained

a decision from an ALJ nor appealed from that decision to the SSA's

Appeals Council.




                                     - 13 -
             As for the possibility of a judicial waiver of the

exhaustion     requirement,     the    District    Court     stated     that    the

plaintiffs     "have   not    asked     the    Court    to   waive    the      . . .

requirement, nor does the Court see a reason to do so."                 Finally,

the District Court ruled that the Illinois Council exception to

Section 405(h)'s jurisdictional bar, encompassing situations where

channeling the claims through the agency would result in "no review

at all," did not apply.       529 U.S. at 19.

             The   plaintiffs     now     appeal       the   District       Court's

jurisdictional ruling.       The plaintiffs bear the burden of proving

subject matter jurisdiction.          Aversa, 99 F.3d at 1209.          Where, as

here, the facts are largely uncontested and the issue is a "nearly

pure" question of law, we review de novo a district court's

decision to grant the motion to dismiss for lack of subject matter

jurisdiction.      Valentín v. Hosp. Bella Vista, 254 F.3d 358, 363

(1st Cir. 2001).

                                        II.

             We begin with the plaintiffs' contention that their

federal court claims do not “arise under” the Social Security Act

and are therefore not subject to the jurisdictional limitations

set forth in Section 405(h).          We do not find this contention to be

persuasive.

             In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme

Court held that a claim for relief in a lawsuit "arise[s] under"


                                      - 14 -
the Social Security Act where "the Social Security Act . . .

provides both the standing and the substantive basis for the

presentation of [the plaintiffs'] . . . contentions."               Id. at 760-

61.    There, the plaintiffs sought the payment of Social Security

survivors insurance benefits that had been denied to them on the

basis of a statutory restriction that they alleged violated their

constitutional rights.         Id. at 753-56.

             The Supreme Court held that the plaintiffs' claims in

their complaint did "arise under" the Social Security Act.                  Id. at

760-61.      The Court explained that the plaintiffs not only sought

the provision of Social Security benefits as relief but also would

have   had    no   standing    or   substantive   basis    for     their   claims

-- including their constitutional claims -- absent the request for

benefits under the Social Security Act.            Id.

             Many years later, in Illinois Council, the Supreme Court

elaborated on its holding from Salfi. In Illinois Council, a group

of nursing homes challenged the process by which the federal

government imposed sanctions on nursing homes that participated in

Medicare for the failure of such nursing homes to meet certain

performance standards.          529 U.S. at 6-7.           The nursing homes

contended,     among   other    things,   that    the    process    the    federal

government used for sanctioning nursing homes violated both the

federal constitutional guarantee of due process of law and the

Medicare statute.      Id. at 7.


                                     - 15 -
            The Court held that both the plaintiffs' constitutional

claims and their statutory claims arose under the Medicare Act.

Id. at 11-15.    The Court explained that Section 405(h)'s phrase

"any claim arising under" the Social Security Act -- or the

Medicare Act, which incorporates Section 405(h) -- clearly covers

            a typical Social Security or Medicare benefits
            case, where an individual seeks a monetary
            benefit from the agency (say, a disability
            payment,   or   payment   for   some   medical
            procedure), the agency denies the benefit, and
            the individual challenges the lawfulness of
            that denial . . . irrespective of whether the
            individual challenges the agency's denial on
            evidentiary,      rule-related,     statutory,
            constitutional, or other legal grounds.

Id. at 10.     The Court then acknowledged that the nursing homes

were bringing a slightly different kind of claim -- a claim where

"one who might later seek money or some other benefit from (or

contest the imposition of a penalty by) the agency challenges in

advance . . . the lawfulness of a policy, regulation, or statute

that might later bar recovery of that benefit (or authorize

imposition of the penalty)."      Id.

            Nevertheless,   the   Court    held   that    its    precedent,

including    Salfi,   "foreclose[d]     distinctions     based   upon   the

'potential future' versus the 'actual present' nature of the claim,

the 'general legal' versus the 'fact-specific' nature of the

challenge, the 'collateral' versus 'noncollateral' nature of the




                                  - 16 -
issues, or the 'declaratory' versus 'injunctive' nature of the

relief sought."     Id. at 13-14.   Instead, the Court concluded,

             [c]laims for money, claims for other benefits,
             claims of program eligibility, and claims that
             contest a sanction or remedy may all similarly
             rest      upon     individual      fact-related
             circumstances, may all similarly dispute
             agency policy determinations, or may all
             similarly      involve     the     application,
             interpretation,    or   constitutionality    of
             interrelated     regulations    or    statutory
             provisions. There is no reason to distinguish
             among them in terms of the language or in terms
             of the purposes of § 405(h).

Id. at 14.

             In this case, the plaintiffs' claims that the agency

unlawfully terminated their benefits without adequate notice of

the evidence of fraud or an opportunity to challenge that evidence

are, like the claims in Illinois Council, predicated on the

plaintiffs' potential future entitlement to those benefits.         For

that reason, the plaintiffs' claims here, like those in Illinois

Council, "arise under" the Act because the Act provides "the

standing and the substantive basis" for the claims they bring in

their suit.     Id. at 12 (quoting Salfi, 422 U.S. at 760-61).

             In challenging this conclusion, the plaintiffs contend

that their claims do not "arise under" the Social Security Act

because the claims are based, in part, on their constitutional

right to due process and not merely on the agency's purported

violations of the Act and its implementing regulations.        But Salfi



                                 - 17 -
and Illinois Council make clear that the fact that the plaintiffs

have a constitutional basis for their claims does not change the

fact that those claims "arise under" the Act.    See Ill. Council,

529 U.S. at 11-14; Salfi, 422 U.S. at 760-61.      What matters is

that those claims are predicated on -- and thus "arise under"

-- the plaintiffs' interest in obtaining the benefits to which

they contend they are entitled under the Act.

                               III.

          Because the plaintiffs' claims "arise under" the Social

Security Act, those claims may be heard in federal court only if

the plaintiffs are in compliance with Section 405(g). The District

Court determined, and the parties agree, that although the relevant

claims have been presented to the SSA, the plaintiffs have neither

exhausted their administrative remedies nor obtained a waiver from

the agency.

          Although the plaintiffs contend that they are entitled

to a judicial waiver of the exhaustion requirement, before diving

into that issue, we first consider whether we even need to address

judicial waiver at all.   As we explained above, if the plaintiffs

can show that subjecting their claims to the requirement of Section

405(g) would result in "no review at all," as they contend is the

case, then there is no need for the plaintiffs to show that their

claims qualify for a judicial waiver of exhaustion.   Ill. Council,




                              - 18 -
529 U.S. at 19.        And so we first address the merits of this

alternative ground for reversing the jurisdictional ruling below.

             The plaintiffs contend that the agency's choice to bar

them    from    presenting       evidence      challenging     the      agency's

determination of fraud in their individual cases prohibits them

from developing a full evidentiary record that would allow a

federal     district   court   to    meaningfully    review       the   agency's

decision.    As a result, the plaintiffs argue that, insofar as they

are unable to meet the exhaustion requirement of Section 405(g),

it does not matter because the result would be "no review at all"

of the agency's fraud determination.             They thus assert that the

exception to Section 405(g)'s exhaustion requirement set forth in

Illinois Council applies here.         We do not agree.

             In Illinois Council, the Supreme Court rejected the very

line of reasoning on which the plaintiffs rely.              There, the Court

explained that:

             The fact that the agency might not provide a
             hearing for [a] particular contention . . . is
             beside the point . . . . After the action has
             been so channeled [through the agency], the
             court will consider the contention when it
             later reviews the action.        And a court
             reviewing an agency determination under
             § 405(g) has . . . , where necessary, the
             authority to develop an evidentiary record.

Id.    at   23-24   (citations    omitted).       The   plaintiffs       do   not

satisfactorily      explain    why    the     opportunity    to    develop     an

evidentiary record for the first time in federal district court,


                                     - 19 -
after exhaustion, regarding the agency's determination of fraud,

would be insufficient.       Thus, we reject the plaintiffs' argument

that applying the jurisdictional bar of Section 405(h) would result

in no judicial review at all, because we have no reason to think

that review under Section 405(g) will not offer them an adequate

opportunity to present their claims in federal court following the

exhaustion of the administrative review process.

                                     IV.

           With the "no review at all" exception out of the way, we

now   confront   the    judicial   waiver   of   exhaustion    issue,   which

provides the last route by which the plaintiffs may show that,

notwithstanding their failure to have exhausted their claims in

the   manner     Section    405(g)    otherwise     requires,      there   is

jurisdiction for a federal district court to hear their suit.              The

District Court concluded that the plaintiffs had not sought a

judicial waiver of exhaustion and that, in any event, there was no

reason to grant such a judicial waiver.

           In    challenging   the    District     Court's    jurisdictional

ruling, the plaintiffs take aim at each of the District Court's

determinations regarding their entitlement to a judicial waiver of

exhaustion.      And,    notwithstanding     the    government's    contrary

contention on appeal, the plaintiffs do appear to have made the

judicial waiver argument below in their memorandum in opposition

to the government's motion to dismiss.           In fact, the government's


                                   - 20 -
own reply memorandum to that filing by the plaintiffs recognized

as much, in stating that the "[p]laintiffs . . . assert that the

Act's   administrative   exhaustion   requirement     should   be     waived

because exhaustion would be futile."         Thus, even assuming our

review of a finding as to waiver is only for clear error, we hold

that the District Court clearly erred in deeming the request for

a judicial waiver waived.

           The   government   nevertheless   argues   that,    if    we   are

"inclined to overlook the forfeiture," we should not reverse the

decision below.      Instead, the government contends, we at most

should remand to the District Court for it to consider the issue

of judicial waiver of exhaustion in the first instance.             But, the

District Court appears to have passed on the merits of that issue

below by concluding that, insofar as the plaintiffs had made a

request for a judicial waiver of exhaustion, it would be denied on

the ground that there was no reason to grant such a judicial waiver

in this case.    In light of that ruling on the merits, we thus do

not see why there is any necessary reason to remand, as the

government agrees that the question whether a request for a

judicial waiver of exhaustion must be granted is a legal one that

we review de novo.    See Wilkerson v. Bowen, 828 F.2d 117, 119 (3d

Cir. 1987).

           We thus turn to the merits of the judicial waiver issue,

so that we may decide whether, on the record developed below, there


                                 - 21 -
is any reason to disturb the District Court's apparent conclusion

that no judicial waiver of exhaustion is warranted.                     We begin by

laying out the precedent that guides us in undertaking that

inquiry.     We then apply that precedent to the facts of the present

case.

                                         A.

             The Supreme Court first recognized that a court may waive

the   exhaustion     requirement    under       Section    405(g)      without   the

Secretary's consent in Eldridge.              There, the Court explained that

judicial    waiver   of   exhaustion      is    proper     "where   a    claimant's

interest in having a particular issue resolved promptly is so great

that deference to the agency's judgment is inappropriate."                       424

U.S. at 330.

             In Eldridge, the plaintiff, without first exhausting his

administrative remedies, had brought a constitutional claim in

federal district court in which he contended that he was entitled

to    an   evidentiary    hearing   prior       to   the   termination      of   his

disability    benefits.      Id.    at   324-25.         The   Court    waived   the

exhaustion requirement in that case for two reasons.                    Id. at 330-

32.

             First, the Court explained that the plaintiff's claim

was "entirely collateral to his substantive claim of entitlement,"

id. at 330, given that it pertained to the process to which he

alleged he was constitutionally entitled, rather than to a claim


                                    - 22 -
to the benefits themselves.             See id. at 333.        The Court reached

that conclusion even though the plaintiff's complaint requested a

reinstatement of benefits pending an evidentiary hearing.                        See id.

at 325.

             Second, the Court concluded that the plaintiff could

show “at least a colorable claim” that an erroneous termination

would irreparably harm him.               Id. at 331.           In reaching that

conclusion,    the     Court    pointed       to   the    plaintiff's      allegation

concerning     "his    physical       condition     and    dependency          upon   the

disability benefits."          Id.

             The Supreme Court next elaborated on the circumstances

in which judicial waiver of the exhaustion requirement under

Section 405(g) is appropriate in Bowen v. City of New York, 476

U.S. 467 (1986).       And, once again, as in Eldridge, the Court found

the conditions for judicial waiver of the exhaustion requirement

satisfied.     See id. at 482-86.

             In City of New York, a class of plaintiffs challenged

the   SSA's    unpublished       policy       of   presuming,       in    determining

eligibility for disability insurance benefits, that people with

certain types of disabilities were capable of performing unskilled

labor.    Id. at 473.      The class alleged that the policy violated

the   Constitution,       the        Social    Security      Act,        and    certain

regulations.     Id.     The district court had certified a class to




                                       - 23 -
challenge the policy and that class included claimants who had not

exhausted their administrative remedies.      Id. at 475.

          The Supreme Court held that the district court did not

err by waiving the exhaustion requirement with respect to those

class members.   Id. at 486.   The Court reasoned, first, that the

plaintiffs' claims were collateral to their substantive claim for

benefits, because "[t]he class members neither sought nor were

awarded benefits in the District Court, but rather challenged the

Secretary's failure to follow the applicable regulations."   Id. at

483.   The Court reasoned, second, that the plaintiffs might be

irreparably injured if forced to exhaust their administrative

remedies because the district court had found that "[t]he ordeal

of having to go through the administrative appeal process may

trigger a severe medical setback."      Id.

          Importantly, however, City of New York explained that

those two factors from Eldridge -- concerning the collateral nature

of the claim and the irreparable harm the plaintiff faces -- are

not the only considerations in assessing whether to permit a

judicial waiver of exhaustion.   After noting Eldridge's admonition

that the exhaustion doctrine is "intensely practical," the Court

in City of New York explained that "[t]he ultimate decision of

whether to waive exhaustion should not be made solely by mechanical

application of the Eldridge factors, but should also be guided by




                               - 24 -
the policies underlying the exhaustion requirement."                 Id. at 484

(quoting Eldridge, 424 U.S. at 331 n.11).

          The    Court   in     City   of    New    York    then   undertook    an

"intensely practical" inquiry in which it determined that the

policies underlying the exhaustion requirement weighed in favor of

immediate review.      Id.    The Court determined in this regard that

the district court had not prematurely interfered with the agency's

processes because, although it took jurisdiction of the case, it

ordered "simply that the claims be reopened at the administrative

level."    Id.    at     485.      The      Court    also    observed   "unique

circumstances" in the case that warranted immediate review.                    Id.

Specifically, the plaintiffs challenged a "systemwide" policy

-- rather than a deviation in the agency's application of its

regulations to individual cases -- that did not depend on the

particular facts of the underlying cases and which policy the

agency seemed unlikely to abandon in light of the "pressure" the

agency placed on state agencies to enforce the policy.                  Id.     In

addition, the Court noted that the agency's policy was "unrevealed"

insofar as the agency had not disclosed it to claimants.                Id.

          Both before and after City of New York, we have explained

more generally that the exhaustion doctrine serves the following

important interests:

          [Exhaustion] allows the agency to develop a
          factual record, to apply its expertise to a
          problem, to exercise its discretion, and to


                                   - 25 -
           correct its own mistakes, all before a court
           will intervene.       Insofar as specialized
           administrative understanding is important,
           the   doctrine   thereby    promotes   accurate
           results, not only at the agency level, but
           also by allowing more informed judicial
           review. By limiting judicial interruption of
           agency proceedings, the doctrine can encourage
           expeditious decision making.        Insofar as
           Congress has provided that an agency will
           decide a matter in the first instance, to
           apply the doctrine normally furthers specific
           Congressional intent.      And, as a general
           matter, the doctrine promotes a sensible
           division of tasks between the agency and the
           court:   litigants    are    discouraged   from
           weakening the position of the agency by
           flouting its processes, while court resources
           are reserved for dealing primarily with those
           matters   which    could    not   be   resolved
           administratively. Thus, the doctrine serves
           the interests of accuracy, efficiency, agency
           autonomy and judicial economy.

Doyle v. Sec'y of Health & Human Servs., 848 F.2d 296, 300 (1st

Cir. 1988); Wilson v. Sec'y of Health & Human Servs., 671 F.2d

673, 677-78 (1st Cir. 1982).6

           Doyle is our only post-City of New York precedent that

squarely addresses the circumstances in which it may be proper to

permit a judicial waiver of exhaustion under Section 405(g).

There, we concluded, in dicta, that City of New York establishes

that


       6Although Wilson predates City of New York, there
-- consistent with what City of New York would later require -- we
applied the two Eldridge factors in our waiver analysis and also
considered whether the interests underwriting the exhaustion
requirement would be served by insisting on exhaustion in that
case. See Wilson, 671 F.2d at 677-79.


                                - 26 -
           when a plaintiff attacks the lawfulness of an
           important 'systemwide' agency policy (say, a
           constitutional    challenge   to    a   policy
           disqualifying a large class of potential
           Social Security recipients), the Supreme Court
           has held that the agency must waive its
           exhaustion requirements. In that sort of case
           exhaustion serves little purpose; the agency's
           policy is well-established and unlikely to
           change; agency expertise is not particularly
           likely to help the court; and, at the same
           time, to insist upon exhaustion of agency
           procedures might well physically harm a
           plaintiff needing benefits.

848 F.2d at 300 (citing City of New York, 476 U.S. at 482-87).

           In Doyle itself, however, we did not ultimately permit

a judicial waiver of exhaustion.         Id.   There, a physician who had

been sanctioned with a ban from treating Medicare patients claimed

that the sanctioning body had not properly applied the factors

that, by regulation, it was required to consider in recommending

such a sanction to the agency.        Id. at 299.   In declining to waive

the exhaustion requirement for the physician, we pointed to three

features of the case.       See id. at 300.

           We   noted   that   the    plaintiff   was    not    challenging   a

systemwide policy, as had been the case in City of New York.              Id.

Rather,   the   plaintiff    was   challenging    only   how    the   relevant

regulatory factors were weighed in his particular case.

           We also explained that there was no reason to think that

the agency had a "closed mind" on the matter.             Id.    We explained




                                     - 27 -
in that regard that it was not a "long-standing policy that [was]

under attack."   Id. at 300-01.

          Finally, we reasoned that the court would benefit from

the exercise of agency expertise that would be brought to bear

through the playing out of the full administrative review process,

as well as from the complete administrative record that would be

developed through that process.       Id. at 300.    We noted that such

a process would permit the agency to bring its expertise to bear

on the issues of both how the regulatory factors ought to be

weighed under the agency's own regulation and whether any deviation

from the norm had prejudiced the physician.         Id.

                                  B.

          It is against this legal background that we must assess

whether the plaintiffs in this case are entitled to have the

exhaustion requirement waived judicially.     As in Eldridge and City

of New York, their claims are collateral to the claim for benefits,

and we may assume that they have sufficiently alleged irreparable

harm.7   However,   the   practical    considerations     underlying   the




     7Because neither factor was present in Wilson, that precedent
does not control here, despite the government's reliance on it.
See 671 F.2d at 679 ("[T]his case neither involves a
'constitutional challenge entirely collateral to . . . [a]
substantive claim of entitlement' . . . nor some special 'damage'
caused by failure to give a predetermination hearing 'not
recompensable through retroactive payments.'" (quoting Eldridge,
424 U.S. at 330, 331)).    Rather, there, the plaintiff sought a
one-time refund payment of $173.47, rather than claiming that she


                               - 28 -
exhaustion requirement that we identified in Doyle would be served

by applying that requirement -- rather than its exception -- in

the circumstances of this case.          Accordingly, we conclude that the

District     Court   correctly     concluded     that    a   waiver      of   that

requirement was not warranted.

                                         1.

             We   start   with   the     issue   whether     the   claims     that

Justiniano    and    Menéndez    bring    in   federal   court     are   entirely

collateral to the claim for benefits that would be the subject of

the administrative appeals process that they seek to bypass. Their

federal court complaint alleges that the SSA applied an unlawful

presumption in the agency's eligibility determination process in

terminating their benefits.        That presumption was that the medical

evidence in the plaintiffs' applications was fraudulent simply

because the evidence was provided by a physician who had been

convicted of fraud with respect to other, "unrelated" applications

for disability benefits.

             Given the nature of that contention, a win for the

plaintiffs in federal court would not necessarily entitle them to

benefits. Rather, a win in federal court would necessarily provide

them with only the process for having determined their eligibility

for benefits to which they claim they are legally entitled.


was entitled to particular process rights going forward, without
which there would be a risk of irreparable harm. Id. at 674-77.


                                    - 29 -
Accordingly, their claims in federal court are entirely collateral

to their claim for benefits, just as were the claims in federal

court that were at issue in Eldridge and City of New York.8

          Of    course,   the   plaintiffs   have   asked,   among    other

relief, for a reinstatement of benefits. But that feature of their

suit does not require -- as the government contends -- a different

conclusion regarding whether their claims are collateral to a

substantive claim of entitlement to those benefits.              Like in

Eldridge, 424 U.S. at 325, the plaintiffs have simply sought a

reinstatement    of   benefits    pending    the    completion   of     the

redetermination process to which they claim they are entitled.


     8 We reject the government's contention that, on this factor,
the case is instead more like Ringer. The plaintiffs in Ringer
sought a declaration that a particular surgical procedure was
reimbursable under the Medicare Act and an injunction compelling
such reimbursement. 466 U.S. at 610-11. The Court held that, at
bottom, the plaintiffs' claims were not wholly collateral to a
claim for benefits. Id. at 618. The Court so held even though
-- in its separate analysis of the presentment requirement -- it
observed that "[a]rguably" the plaintiffs raised procedural
objections both to the agency's "decision to issue a generally
applicable rule rather than to allow individual adjudication" and
to the agency's alleged failure to comply with the Administrative
Procedure Act in issuing that rule. Id. at 614. But, "ALJs were
consistently ruling in favor of individual . . . claimants" in
individual adjudication before ALJs who were not bound by the rule.
Id. at 607-08. Ringer is therefore unlike Eldridge or City of New
York, in which there was no similarly foregone conclusion that the
plaintiffs would obtain the benefits they sought if their
procedural challenges succeeded. And, on that score, the case at
hand is more like Eldridge and City of New York, rather than
Ringer, given that there is no dispute that the policy the
plaintiffs challenge on "procedural" grounds here is hardly the
only impediment to their establishing their entitlement to
benefits.


                                 - 30 -
They    are   in   no     way   seeking    to   adjudicate        their    substantive

eligibility for benefits in their federal suit.

              Finally, the government is also wrong to contend that

the plaintiffs' claims in federal court are not entirely collateral

to their claim for benefits because the plaintiffs assert that the

SSA     violated    the    Social    Security        Act    and   its     implementing

regulations.       The Court made clear in City of New York that a claim

does not lose its status as being entirely collateral to a claim

for benefits just because that entirely collateral claim asserts

a   violation      of    the    Social    Security    Act    or    its    implementing

regulations.       476 U.S. at 483.

                                           2.

              The plaintiffs also have arguably presented a colorable

claim that they will be irreparably harmed absent a judicial waiver

of exhaustion.          They allege that they depended on the disability

benefits for income to pay, among other things, for medical care

and water and electric services, and that they have now become

dependent on family members to pay for such services.                            Thus,

because they allege that they are no longer financially self-

sufficient as a result of the loss of income from their disability

benefits, they may be unable to access those essential services

during the time it would take them to exhaust the administrative

remedies available to them, seemingly resulting in irreparable

harm.


                                         - 31 -
          The Court's observation in Illinois Council that an

"occasional individual, delay-related hardship" may be an expected

price of Section 405(h)'s exhaustion requirement, 529 U.S. at 13,

does not appear to undermine the conclusion that Justiniano and

Menéndez face irreparable harm, as the government contends it does.

In Illinois Council, the Court was justifying the presentment

requirement, which the parties agree is satisfied in this case,

not the irreparable harm showing in the context of a judicial

waiver of exhaustion.     Moreover, the risk of forgoing access to

essential medical, water, and electric services is hardly the type

of "occasional individual, delay-related hardship" that we think

the Court had in mind in justifying a routine feature of the

administrative process.     Id.   Therefore, with respect to the

judicial waiver analysis, we may assume that retroactive payment

would not be a sufficient remedy for the harm the plaintiffs may

incur in the meantime, if their claims are ultimately successful.

          Moreover, to the extent that a showing of irreparable

harm must necessarily rest on a showing of at least a colorable

claim of ultimate success on the merits, the plaintiffs arguably

have made that showing, too.      In the very cases to which the

government points as having recently presented similar challenges

to the SSA’s redetermination procedures, we note that the plaintiff

in at least one of those cases succeeded on her constitutional




                               - 32 -
claim.    See Hicks v. Colvin, 214 F. Supp. 3d 627, 633-46 (E.D. Ky.

2016).

                                     3.

             Nevertheless,   we   still   must   consider    the    practical

considerations that bear on waiving the exhaustion requirement

judicially.    We must do so in order to assess whether the policies

underlying the exhaustion requirement would be undermined by so

waiving    that   requirement.         And,   although      some    practical

considerations weigh in favor of the plaintiffs' request for a

judicial waiver of that requirement, ultimately the plaintiffs

fail to carry their burden to show that a judicial waiver of

exhaustion is warranted.

             In trying to make the case that there is no practical

reason to require exhaustion, the plaintiffs argue that, like in

City of New York, they challenge a "systemwide" agency policy and

thus not a case-specific agency decision that necessarily may be

properly evaluated only after the agency has had a full opportunity

to assess it.     476 U.S. at 485.     To be sure, the plaintiffs' suit

challenges only how the systemwide policy has been applied to

applications for benefits cases that have been affected by a

particular    fraud   investigation.       But   hundreds    of    disability

benefits cases have been affected by the application of that

systemwide policy to that fraud investigation, and the legal basis

for the challenge itself is applicable to the systemwide policy


                                  - 33 -
rather than to the policy's specific application to the particular

fraud investigation.        In addition, the government does not dispute

the   plaintiffs'        contention     that    they   challenge      a   systemwide

policy.

             Relatedly, the plaintiffs argue that exhaustion would be

"futile"     because       the     policies        underlying   the       exhaustion

requirement would not, in fact, be served here for an additional

reason.    Specifically, the plaintiffs point out that, since this

litigation began, the agency has formalized the policy that they

challenge.       The agency has done so in both its internal manual for

adjudicating       benefits      claims    --    the   Hearings,      Appeals,    and

Litigation Law Manual ("HALLEX"), § I-1-3-25 -- and two Social

Security Rulings.          See SSR 16-1p, 81 Fed. Reg. 13436 (Mar. 14,

2016); SSR 16-2p, 81 Fed. Reg. 13439 (Mar. 14, 2016).                            Those

rulings (albeit not the manual) are binding on the agency.                        See

Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990); Schweiker v.

Hansen,    450    U.S.    785,    789     (1981)    (per   curiam).       Thus,   the

plaintiffs contend that, unlike in Doyle, there is good reason to

think that the agency has "a closed mind on these matters" at this

point.    848 F.2d at 300.9


      9On this score, this case is unlike Wilson.       There, the
agency had not taken "a final position" on the plaintiff's
challenge to a policy whereby, under the agency's interpretation
of its regulations, representative payees for recipients of
supplemental security income benefits were liable for overpayments
of benefits. 671 F.2d at 678. The policy was included in the


                                        - 34 -
             The government, again, does not suggest otherwise.          And

we can see why.         Both parties agree that, under the agency's

formalized    policy,    the   administrative   appeal   process   in    the

plaintiffs' cases would be limited to reviewing the remaining

medical evidence that the agency has not disregarded as potentially

fraudulent.10     For that reason, administrative review would not

appear to provide any occasion for an ALJ or the SSA's Appeals

Council to bring expertise to bear on the interpretation of the

implementing regulations that the plaintiffs seek to challenge in

federal court.    Rather, an administrative adjudicator would simply

apply those administrative rulings to the case at hand.11               As a


agency's Claims Manual, but the agency had not otherwise bound
itself to the policy.    Id. at 675.    Thus, we observed that
completion of the administrative process "might have led to a
narrowing interpretation of the regulations or their revision."
Id. at 678.
     10 The reason is that the fraud investigation in this case
originated in the SSA’s Office of Inspector General, and the agency
"will not administratively review information provided by SSA’s
Office of the Inspector General . . . regarding its reason to
believe that fraud was involved in the individual’s application
for benefits.” SSR 16-1p, 81 Fed. Reg. at 13438; see also HALLEX,
§ I-1-3-25.
     11We indicated, in dicta, in McDonald v. Secretary of Health
& Human Services, 834 F.2d 1085 (1st Cir. 1987), that we were "not
necessarily persuaded" that "there was nothing to be gained from
permitting the compilation of a detailed factual record, or from
agency expertise" through exhaustion, id. at 1091, where the
plaintiffs challenged an agency policy that had been formalized in
a Social Security ruling. Id. at 1087. We were commenting on the
plaintiffs' argument that they did not need to administratively
exhaust their claim that what is known as "step 2" in the
sequential evaluation used by the Secretary of Health and Human
Services to determine eligibility for disability insurance


                                  - 35 -
result, on this score, this case is more like City of New York, in

which the Supreme Court reasoned that a federal agency was unlikely

to change an unpublished policy because it had been pressuring

state agencies to enforce it.    476 U.S. at 485.12

          Nevertheless, we conclude that, in the circumstances of

this case, plaintiffs have failed to meet the burden of showing

that exhaustion would not provide sufficient practical benefit.

We explained in Wilson that the exhaustion doctrine "encourage[s]

expeditious decision making" and that, accordingly, an agency


benefits violated the Social Security Act. See id. However, we
provided no explanation for why agency expertise might be helpful
in that context, and "we expressly [made] no determination of this
[issue] one way or the other" because we resolved the appeal on
other grounds. Id. at 1091. In any event, even if there were an
opportunity in the administrative appeals process for the agency
to bring its expertise to bear on Justiniano and Menéndez's
regulatory claim, as McDonald might suggest, the same would not be
true with respect to the plaintiffs' constitutional claim. And,
McDonald did not involve a constitutional claim. Id.
     12The government does seek to distinguish this case from City
of New York with respect to practical considerations on the ground
that this case does not involve "a claim of a covert policy which,
because of its secrecy, undermined the efficacy of normal
administrative and judicial review processes." McDonald, 834 F.2d
at 1091 (citing City of New York, 476 U.S. 467). But Doyle did
not indicate that a policy must be covert in order for a judicial
waiver to be permissible. In fact, Doyle suggested otherwise in
the passage that we quoted above about when a judicial waiver of
the exhaustion requirement must be granted.      See supra at 27
(quoting Doyle, 848 F.2d at 300). Nor can we see why the rule
should be otherwise. The mere fact that the agency has not hidden
the policy under challenge from view in the early stages of the
administrative process does not mean that the policies underlying
the exhaustion requirement would be served by requiring
exhaustion. That determination must be made with reference to the
particular facts at hand in a given case.


                                - 36 -
should be given "a chance to rectify a litigant's problems and

save judicial time and effort."       671 F.2d at 678.      In this regard,

the government points out that the administrative proceedings will

provide each plaintiff with an evidentiary hearing on the remaining

medical evidence in their records and that, in seemingly comparable

cases, a substantial number of claimants succeeded in obtaining a

reinstatement    of    benefits,   notwithstanding    the    exclusion   of

evidence deemed by the SSA to be fraudulent.         The government thus

suggests that the exhaustion of the administrative appeals process

may provide the plaintiffs with a restoration of their benefits

and, in that way, would not be "futile."13

          More        specifically,   the   government       submitted    a

declaration by a senior SSA official with its motion to dismiss

that described the process by which the SSA is reviewing the



     13 We note that in City of New York, the Court observed that
the government "correctly assert[ed] that, had class members
exhausted administrative remedies, some might have received
benefits despite the illegal policy. . . .     Such observations,
however, merely serve to remind us why exhaustion is the rule in
the vast majority of cases; they do not aid the Court in deciding
when exhaustion should be excused." 476 U.S. at 485-86. We do
not read this passage to indicate that, contrary to our view in
Wilson, 671 F.2d at 678, the likelihood of the agency process
mooting out the plaintiffs' claim -- either by disqualifying the
plaintiff from receiving benefits for an unrelated reason or by
granting benefits to the plaintiff -- has no role to play in the
analysis of whether judicial waiver of the exhaustion requirement
is warranted. Rather, we read it to mean that the mere possibility
of the agency process mooting out the plaintiffs' claim does not
in and of itself counsel in favor of or against judicial waiver of
exhaustion, but that the relative probability of it might.


                                   - 37 -
benefits     termination    decisions    connected     to    the   same    fraud

investigation at issue in this case.            The declaration indicated

that, of the more than 2,000 administrative appeals, 423 hearings

had been held and the claimants received favorable decisions in

145 cases.    The government also states in its appellate brief that

of a narrower group of 1,280 individuals who, like the plaintiffs,

originally had benefits awarded by the Puerto Rico Disability

Determination Services (as opposed to by an ALJ on review of an

unfavorable DDS decision), 100 hearings had been held, 56 decisions

had been issued, and 43 of those decisions were favorable to the

claimants.      That means, as the government points out, that a

"majority" of the issued decisions have been favorable among this

narrower group.

             Of course, we do not know the exact posture of the cases

in which claimants obtained a reinstatement of benefits through

their administrative appeals.         And the plaintiffs did argue below

that their administrative appeals were assigned to a different

administrative    hearing    office     than   the   one    from   which   these

statistics are drawn.        But the plaintiffs bear the burden of

showing that they are entitled to a judicial waiver of exhaustion,

and they have made no argument that they would not be able to

obtain the benefits to which they claim they are entitled through

the normal course of their administrative appeals.             Given that, as

the case comes to us, the plaintiffs' chances of obtaining benefits


                                  - 38 -
through the administrative process appear to be substantial, we do

not see how we could waive the requirement that would give the

agency an opportunity "to rectify" the problem by giving them the

benefits that were terminated.   Id.   Thus, we hold that judicial

waiver of the exhaustion requirement is not warranted on these

facts.

                                 V.

          For the foregoing reasons, the judgment of the District

Court is affirmed.




                             - 39 -
