490 F.Supp.3d 132
D.D.C.2020Background
- Plaintiffs are dozens of dual citizens and lawful permanent residents who worked abroad and receive (or will receive) foreign pensions; SSA applied the Windfall Elimination Provision (WEP) to reduce their U.S. Social Security benefits.
- Plaintiffs allege SSA has an internal, undisclosed policy applying the WEP to beneficiaries with pensions from 24 countries and seek class relief; they sued in D.C. in 2016 and filed a Second Amended Complaint.
- SSA applies the WEP according to its POMS guidance; whether WEP applies can depend on totalization agreements and whether a foreign pension is earnings‑based.
- Most plaintiffs reside in various U.S. states; only two (Jones and Pezas) allege residence abroad such that venue in D.C. is proper under 42 U.S.C. § 405(g); one plaintiff (Merkel) had not presented a benefits claim to SSA.
- Defendants moved to dismiss for improper venue and failure to exhaust administrative remedies (or for summary judgment). The Court held D.C. venue improper for all but Jones and Pezas, dismissed those other claims, and granted summary judgment for defendants on exhaustion grounds as to the two remaining plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper venue under §405(g) vs. general venue statutes | Plaintiffs invoke a collaterality exception so general venue (28 U.S.C. §1391) governs and D.C. is proper | §405(g) prescribes venue for Social Security actions; no collaterality exception to §405(g)’s venue provision | Court: §405(g) controls; D.C. is improper venue for all plaintiffs except Jones and Pezas; those other claims dismissed |
| Exhaustion of administrative remedies / waiver of non‑jurisdictional exhaustion | Plaintiffs concede lack of exhaustion but urge waiver based on futility, collaterality, and irreparable harm | Defendants: plaintiffs failed to exhaust; exceptions do not apply; administrative remedies are available and have produced favorable results for similar claimants | Court: waiver not shown; summary judgment for defendants for failure to exhaust as to Jones and Pezas; Merkel barred for failing to present a claim (jurisdictional defect) |
| Futility of administrative review | Agency will not contradict its POMS/policy, so administrative appeals would be certain to fail | Futility requires certainty of adverse decision; other claimants have won at ALJ level so futility not established | Court: futility not shown (high threshold unmet; existence of favorable ALJ decisions refutes certainty) |
| Alternative jurisdiction (§1383(c)(3) and mandamus §1361) | Plaintiffs urge these statutes as independent bases for judicial review or relief | §1383(c)(3) incorporates §405(g) (so same limitations); mandamus requires clear right/duty and no other adequate remedy and is unavailable where administrative remedies exist | Court: §1383(c)(3) not available apart from §405(g); mandamus not warranted (no clear right/duty, and plaintiffs failed to exhaust) |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (explains presentment, exhaustion and when courts may waive administrative requirements)
- Heckler v. Ringer, 466 U.S. 602 (Social Security benefit claims must proceed under §405(g); limits collateral exceptions)
- Bowen v. City of New York, 476 U.S. 467 (excused exhaustion in the face of covert, systemic agency policy; example of collateral/futility waiver)
- Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (reinforces exclusivity of §405(g) review for Social Security disputes)
- Ryan v. Bentsen, 12 F.3d 245 (D.C. Cir. discussion of SSA administrative review steps and exhaustion)
- Tataranowicz v. Sullivan, 959 F.2d 268 (D.C. Cir. holding that futility can excuse exhaustion)
- Cost v. Social Security Admin., 770 F. Supp. 2d 45 (distinguishes jurisdictional presentment from non‑jurisdictional exhaustion; D.D.C. precedent)
- Monmouth Medical Center v. Thompson, 257 F.3d 807 (mandamus unavailable where administrative remedies exist/unexhausted)
- Beattie v. Astrue, 845 F. Supp. 2d 184 (D.D.C. discussion of collaterality and irreparable harm in exhaustion context)