United States District Court, D. Maryland
Stephanie A. Gallagher, United States Magistrate Judge
November 9, 2018, Plaintiff Barbara L., who proceeds pro
se, petitioned this Court to review an overpayment
assessment by the Social Security Administration
(“SSA”). ECF 1. The SSA filed a Motion to Dismiss
for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1), on the grounds that
Plaintiff did not exhaust her administrative remedies prior
to filing her complaint. ECF 9. Plaintiff opposed the motion.
ECF 13. I find that no hearing is necessary. See
Loc. R. 105.6 (D. Md. 2018). For the reasons explained below,
I will grant the SSA's Motion to Dismiss.
following facts are derived from Plaintiffs complaint and its
attachments, and the allegations are assumed true for the
purposes of this motion. Plaintiffs husband began receiving
Social Security retirement benefits in June, 2011. ECF 1
¶ 6. In accordance with emailed advice she had received
from the SSA, Plaintiff applied for a spousal benefit when
she turned 66 years of age, and voluntarily suspended her own
retirement benefits until age 70. Id. ¶¶
7-8. Plaintiff turned 70 years of age on January 21, 2016.
Id. ¶ 9. At that point, she began receiving her
retirement benefits on her own earnings record, and notified
SSA that she should no longer receive the spousal benefit.
Id. ¶ 9. Despite Plaintiffs repeated requests
that SSA stop sending her the spousal benefit, SSA continued
paying her both types of benefits between January, 2016 and
February, 2017. Id.
March 30, 2017, SSA notified Plaintiff that it had overpaid
her spousal benefits between January, 2012 and February,
2017, for a total overpayment of $27, 366. Id.
¶ 10, Att. 8. The notice stated, in contradiction to the
prior advice Plaintiff had obtained from SSA, that Plaintiff
“should not have received any benefits as a spouse,
” since she had been entitled to collect higher
benefits on her own earnings record. Id.
¶¶ 11-13, Att. 8. The notice advised that the
overpayment amount would be withheld from Plaintiffs upcoming
benefit payments, but stated, “If you request
reconsideration and/or waiver within 30 days, the planned
withholding of your benefit to recover the overpayment will
not take place until your case is reviewed.”
Id. ¶ 15, Att. 8. Although Plaintiff filed a
Request for Reconsideration on April 17, 2017, SSA
immediately began to withhold Plaintiffs monthly
distributions to collect the alleged overpayment.
Id. ¶ 15.
visited a local SSA office to inquire why her benefits were
being withheld. Id. ¶ 16. After originally
claiming not to have a record of the Request for
Reconsideration, SSA conceded that her request had been
timely filed. Id. ¶¶ 16-17. Nevertheless,
on May 3, 2017, SSA sent correspondence to Plaintiff
indicating that her $2, 993 monthly benefits would be
withheld in full from May, 2017 through a portion of January,
2018, to recover the allegedly overpaid benefits.
Id., Att. 12. On November 20, 2017, SSA wrote to
advise Plaintiff that she would begin receiving $2, 814 each
month, representing a withholding of $179 per month, until
her full overpayment amount was paid off in December, 2020.
Id. On March 15, 2018, SSA again wrote to Plaintiff
stating, “[w]e received your request that we review our
decision, ” and noted that she would receive her full
benefit payments from March, 2018, although an overpayment
balance of $5, 708 remained. Id. On July 10, 2018,
SSA wrote and said, “[w]e received your request for an
explanation, ” and again affirmed that Plaintiff would
receive her full payments with no withholding, although a
balance of $5, 708 remained. Id.
29, 2018, Plaintiff wrote to her United States Congressperson
to request assistance with contesting her overpayment
assessment. Id., Att. 13. On September 21, 2018,
Plaintiff received a new “Notice of Change in
Benefits” stating, “Review of your record shows
that the true amount of your overpayment is $8,
692.00.” Id., Att. 14. The letter affirmed
that Plaintiff would continue to receive her full benefits,
without withholdings, and told Plaintiff that she had 60 days
to ask for an appeal and review of this decision.
Id. Shortly thereafter, SSA wrote Plaintiffs
Congressperson to advise that, “A technical expert at
the payment center in Chicago looked at the case and decided
that the overpayment was correct.” Id., Att.
15. On November 9, 2018, Plaintiff filed her Complaint in
this Court, without pursuing any additional administrative
alleges in her Complaint that, in a 2017 publication, SSA
noted that the Bipartisan Budget Act of 2015 had closed a
“loophole” which had “allowed some married
individuals to start receiving spousal benefits at full
retirement age, while letting their own retirement benefit
grow by delaying it.” Id. ¶ 14, Att. 9
https://www.ssa.gov/planners/retire.claiming.html). The SSA
publication acknowledged that the rule closing the loophole
applied only prospectively, not retroactively. Id.
¶ 14, Att. 9 (“If you voluntarily suspended
benefits prior to April 30, 2016, you may remain in voluntary
suspense status, and the new law will not affect
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) governs motions to dismiss
for lack of subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). While the plaintiff bears the burden of proving
that a court has jurisdiction over the claim or controversy
at issue, a Rule 12(b)(1) motion should be granted
“only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law.” Ferdinand-Davenport v.
Children's Guild, 742 F.Supp.2d 772, 777 (D. Md.
2010) (quoting Evans v. B.F. Perkins Co., a Div. of
Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir.
1999)). In a motion to dismiss for lack of subject matter
jurisdiction, the pleadings should be regarded as “mere
evidence on the issue, ” and courts may “consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Evans, 166 F.3d at 647 (quoting Richmond,
Fredericksburg & Potomac R.R. v. Unites States, 945
F.2d 765, 768 (4th Cir. 1991)).
plaintiff carries the burden of establishing subject matter
jurisdiction. See Lovern v. Edwards, 190 F.3d 648,
654 (4th Cir. 1999) (citing Thomson v. Gaskill, 315
U.S. 442, 446 (1942); Goldsmith v. Mayor of Balt.,
845 F.2d 61, 63-64 (4th Cir. 1988)). However, a pro se
plaintiff's complaint should not be dismissed
“unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1987) (quoting Haines v.
Kerner, 404 U.S. 519, 521 (1972)) (quotation and
citation omitted). Pro se filings, “however
unskillfully pleaded, must be liberally construed.”
Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir.
1994) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928
(4th Cir. 1977)). Where a plaintiff has failed to exhaust
administrative remedies before bringing a claim, the action
should be dismissed under Rule 12(b)(1). See
Khoury v. Meserve, 268 F.Supp.2d 600, 607 (D. Md.
2003), aff'd, 85 Fed.Appx. 960 (4th Cir. 2004).
argues that this Court lacks jurisdiction over
Plaintiff's appeal because she failed to exhaust her
administrative remedies before filing suit, and is not
therefore appealing from a final decision of the
Commissioner. ECF 9. The SSA, as an agency of the United
States Government, enjoys immunity from suit absent express
waiver. See F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994). The applicable waiver of immunity in this case is
found in the Social Security Act, which provides the
statutory basis for Plaintiff's appeal. ECF 1. That Act
provides, in relevant part, 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 a review of such decision by a civil
action[.]” 42 U.S.C. § 405(g). In Plaintiff's
case, no hearing was ever held. Plaintiff's Request for
Reconsideration of the March 30, 2017, Notice of Change in
Benefits remains pending, and Plaintiff has not filed a
Request for Reconsideration of the September 21, 2018, Notice
of Change in Benefits, instead opting to file her complaint
in this Court.
contends that “the actions SSA took on
[Plaintiff's] claim for reimbursement constituted a
‘final decision . . . made after a hearing,
'” while also acknowledging that Plaintiff has only
received initial overpayment determinations, and has filed
one petition for reconsideration which remains unresolved.
ECF 13 at 6. The term “final decision” is
undefined in the Act, and its meaning is left, instead,
“to the [Commissioner] to flesh out by
regulation.” Weinberger v. Salfi, 422 U.S.
749, 766 (1975). Social Security regulations provide that a
claimant must complete a four-step administrative review
process to obtain a judicially reviewable final decision. 20
C.F.R. § 404.900(a). First, an individual claiming
entitlement to benefits receives an initial determination. 20
C.F.R. § 404.902. If the claimant is not satisfied with
the determination, the claimant may request the SSA to
reconsider the decision. 20 C.F.R. § 404.907. After the
second step, reconsideration, if the claimant is still not
satisfied with the determination, the claimant may request a
hearing before an Administrative Law Judge
(“ALJ”). Id.; 20 C.F.R. § 404.929.
The claimant must request a hearing within sixty (60) days
after the claimant receives notice of the previous
determination or decision, unless the Commissioner grants a
written request for more time. 20 C.F.R. § 404.933(b).
Finally, if the claimant is not satisfied with the ALJ's
determination at the third step of the review, the claimant
may request review by the Appeals Council (“AC”).
20 C.F.R. § 404.967. The AC may deny the request for
review and allow the ALJ's decision to stand as the final
decision of the Commissioner, or it may grant the request for
review and issue its own decision. 20 C.F.R. § 404.981.
In either event, the claimant may then seek judicial review
of the ...