UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 16-1750 (TJK)

WILLIAM TURNBULL et al.,

Plaintiffs,

v.

NANCY BERRYHILL et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs are a group of dual citizens and lawful permanent residents of the United States 

who at some point also worked in a foreign country. As a result, they are eligible for retirement 

benefits under both the Social Security Act and that foreign country’s laws. And because of that 

eligibility, the Social Security Administration applied (or, for one plaintiff, allegedly will apply) 

the Windfall Elimination Provision to their Social Security benefits, thereby reducing them. 

Plaintiffs allege that applying the WEP to their benefits is unlawful, and they seek to represent a 

class of similarly-situated beneficiaries. Defendants have moved to dismiss for failure to exhaust

and improper venue, or in the alternative, for summary judgment. For the reasons explained 

below, the Court will grant Defendants’ motion. 

Background

A. Statutory and Regulatory Background

The Social Security Act, 42 U.S.C. § 401 et seq., entitles certain persons to retirement 

benefits. One limitation on those benefits is the Windfall Elimination Provision (WEP), “which 

reduces the benefits received by certain individuals who also receive pensions for work that did 

not require them to pay social security taxes.” Hawrelak v. Colvin, 667 F. App’x 161, 162 (7th 
2

Cir. 2016); see also 20 C.F.R. § 404.213. As relevant here, the WEP reduces the Social Security 

benefits of those who receive foreign pensions because they worked in another country. 20 

C.F.R. § 404.213(a)(3). Not all foreign pensions trigger the WEP; only those that are “from 

private employers” or “from social insurance systems that base benefits on earnings but not on 

residence or citizenship.” Id.

The Social Security Administration (SSA) applies the WEP according to the Program 

Operations Manual System (POMS), an internal guidance document for SSA employees. See 

Hall v. Sebelius, 689 F. Supp. 2d 10, 15–16 (D.D.C. 2009). The POMS sets out various policies 

relating to the WEP, including how to calculate the reduction, POMS GN 00307.290; when a 

totalization agreement changes that calculation,1 POMS RS 00605.386; and exceptions to the 

WEP, POMS RS 00605.362. The POMS also identifies six countries whose pension systems are 

partly earnings-based and partly residence-based, such that only part of those pensions should 

factor into a beneficiary’s WEP reduction. See POMS GN 00307.290(C)(6) (noting that Canada, 

Sweden, Norway, Finland, the Netherlands, and Switzerland have these hybrid systems).

If a beneficiary believes that the SSA miscalculated her WEP reduction, she may 

challenge that calculation through an administrative review process. See Ryan v. Bentsen, 12 

F.3d 245, 247 (D.C. Cir. 1993). That process has four steps: (1) an initial determination; (2) 

reconsideration; (3) a hearing before an administrative law judge; and (4) Appeals Council 

review. 20 C.F.R. § 404.900(a)(1)–(4). After those steps are complete—that is, once a

 1 Whether the WEP applies to an individual’s benefits turns in part on whether there is a 

“totalization agreement” between the United States and the foreign country from which she 

receives the foreign pension. See 20 C.F.R. § 404.213(f). “Totalization agreements provide for 

the grant of retirement benefits to persons who split their careers among two or more countries 

and thus lack sufficient periods of covered employment under each country’s retirement system 

to qualify for benefits.” Hawrelak, 667 F. App’x at 163.
3

dissatisfied claimant has exhausted the administrative review process—that person may seek 

review in federal court. Id. § 404.900(a)(5). The judicial review provision of the Social Security 

Act, 42 U.S.C. § 405(g), has both “jurisdictional and non-jurisdictional exhaustion components.” 

Cost v. Social Security Administration, 770 F. Supp. 2d 45, 48 (D.D.C. 2011). “The requirement 

that a plaintiff must first present his claim to the agency is jurisdictional and cannot be waived, 

while the requirement that the plaintiff must complete the agency review process is nonjurisdictional and may be waived.” Id. In other words, the Court has no jurisdiction under 42 

U.S.C. § 405(g) unless “a claim for benefits [has] been presented to the” SSA, but the Court can 

waive exhaustion of the administrative process for equitable reasons. Mathews v. Eldridge, 424 

U.S. 319, 328 (1976).

B. Procedural Background

Plaintiffs are several dozen dual citizens and lawful permanent residents of the United 

States. ECF No. 23 (“Second Am. Compl.”) ¶¶ 2–35. They sued in August 2016 and filed the 

operative Second Amended Complaint in April 2017. ECF No. 23. They challenge the SSA’s 

application of the WEP to their benefits because they receive foreign pensions. Id. ¶¶ 49–57. 

Specifically, they allege that the SSA has an internal, undisclosed policy of applying the WEP to

beneficiaries who receive pensions from 24 countries—in violation of the Social Security Act, its 

regulations, and international agreements between the United States and those countries. Id.

¶¶ 42–53.

Most Plaintiffs live in the United States. See id. ¶¶ 2–34. Four do not specify their 

residence. Id. ¶¶ 28–31. And two live outside the United States. Id. ¶¶ 4, 35. Collectively, they 

allege that they receive or qualify for foreign pensions from the United Kingdom, the 
4

Netherlands, Switzerland, Canada, Belgium, Norway, Germany, and Greece.2 Id. ¶¶ 2–35. They 

seek to represent all persons similarly situated, defined as those who receive foreign pensions 

from any of twenty-four specified countries and believe the WEP has been erroneously applied 

to their Social Security benefits. Id. ¶¶ 50–51.

With one exception, Plaintiffs allege that they have complied with the jurisdictional 

exhaustion requirement in 42 U.S.C. § 405(g) by filing claims for benefits from the SSA. 

Second Am. Compl. ¶ 104. They admit that when they filed the complaint, they had not 

exhausted administrative remedies, but they argue that the Court should excuse their failure to do 

so.

3

 Id. ¶¶ 106–108; ECF No. 25 (“Pls.’ Opp.”) at 10–27. One plaintiff, Alain Merkel, had not 

presented a claim to the SSA at the time of Defendants’ motion because he had not yet claimed 

benefits. Second Am. Compl. ¶ 34.

Pending before the Court is Defendants’ motion to dismiss the complaint for lack of 

jurisdiction and improper venue, or, in the alternative, for summary judgment. See ECF No. 24. 

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss an 

action for improper venue. “In considering a Rule 12(b)(3) motion, the Court ‘accepts the 

 2 Although two plaintiffs allege that they qualify for benefits from Canada in addition to other 

countries, Plaintiffs do not challenge application of the WEP to Canadian pensions. See Second. 

Am. Compl. ¶¶ 28–29, 50–51. 

3 In the Second Amended Complaint, Plaintiff Alison Barnes alleges that her husband, who is not 

a plaintiff in this case, “fully exhausted his administrative remedies as they related to the 

application of the WEP to the U.S. Social Security retirement benefits of both him and Mrs. 

Barnes.” Second Am. Compl. ¶ 6. But in her declaration, Barnes avers that she “did not pursue 

[her] own agency appeal under her own social security number, as [she] was led to believe from 

[her] husband’s experience that there was no point in doing so.” ECF No. 25-2 at 6. Regardless 

of whether Barnes’s husband exhausted his remedies she presents no evidence that she did so, 

and Plaintiffs do not dispute Defendants’ assertion that no plaintiff had fully exhausted their 

administrative remedies at the time the motion was filed. See ECF No. 24-2 at 4; ECF No. 24-1; 

ECF No. 25 at 10; ECF No. 25-3. 
5

plaintiff’s well-pled factual allegations regarding venue as true, draws all reasonable inferences 

from those allegations in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s 

favor.’” Jalloh v. Underwood, 300 F. Supp. 3d 151, 154 (D.D.C. 2018) (quoting Pendleton v. 

Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008)). But it is the plaintiff’s burden to show that 

venue is proper in her chosen forum. Id.

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriately 

granted when, viewing the evidence in the light most favorable to the non-movants and drawing 

all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” 

Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 

2016).

4

Analysis

In urging dismissal or summary judgment, Defendants make essentially three arguments: 

(1) Plaintiffs failed to exhaust their administrative remedies under § 405(g), no exception to the 

non-jurisdictional exhaustion requirement applies, and no other statute enables the Court to hear 

Plaintiffs’ case; (2) Plaintiffs lack standing to challenge how the SSA applies the WEP to 

claimants who receive pensions from countries from which Plaintiffs do not receive pensions; 

 4 Defendants have styled their arguments related to exhaustion of administrative remedies as 

seeking dismissal, or in the alternative, summary judgment. “When ‘matters outside the 

pleadings are presented to and not excluded by the court’ on a Rule 12(b)(6) motion, ‘the motion 

must be treated as one for summary judgment under Rule 56.’” Cost v. Soc. Sec. Admin., 770 F. 

Supp. 2d 45, 49 (D.D.C. 2011) (quoting Fed. R. Civ. P. 12(d)). Here, both parties have presented 

material outside the pleadings (to which the other party did not object), so the Court will treat 

Defendants’ motion as one for summary judgment. See Calderon v. Berryhill, No. 17-cv-494 

(RDM), 2019 WL 4575605, at *4 (D.D.C. Sept. 20, 2019); Cost, 770 F. Supp. 2d at 49.
6

and (3) the District of Columbia is an improper venue for all but the claims of two plaintiffs. See 

ECF No. 24-2 (“Defs.’ Mot.”) at 1. As explained below, the Court agrees with Defendants, will 

dismiss for improper venue the claims brought by all plaintiffs except two, and grant summary 

judgment for failure to exhaust on those remaining.

5 

A. Venue

The Social Security Act specifies where venue is proper for actions arising under it. 42 

U.S.C. § 405(g). “Such action shall be brought in the district court of the United States for the 

judicial district in which the plaintiff resides, or has his principal place of business, or, if he does 

not reside or have his principal place of business within any such judicial district, in the United 

States District Court for the District of Columbia.” Id. Defendants argue that Plaintiffs have not 

met their burden to show that venue is proper as to all but two plaintiffs, Anthony Jones and 

Evangelos Pezas. Jones and Pezas allege that they reside abroad, but all other plaintiffs allege 

that they reside in the United States outside this District.6 In response, Plaintiffs do not dispute 

Defendants’ characterization of Plaintiffs’ residencies, but argue that an exception to § 405(g) 

applies to claims such as theirs which are “collateral to any claim for benefits,” such that the 

 5 Defendants do not contest Plaintiffs’ standing to pursue claims related to the WEP’s application 

to their own benefits. Defendants’ standing argument is related to Plaintiffs’ attempt to certify a 

class that includes claimants who receive benefits from more countries. But after the close of 

briefing on this motion, the Court granted Plaintiffs an extension of time to move for class 

certification and determined that “it would be more efficient to take up class certification issues 

after the motion to dismiss has been resolved.” Minute Order of July 6, 2017. Because the 

Court will grant Defendants’ motion on other grounds, and it need not resolve any class 

certification issues, it also need not address Defendants’ standing argument. 

6 While four plaintiffs do not specifically allege their residence, see Second Am. Comp’l ¶¶ 28–

31, the Second Amended Complaint lists their addresses as within the United States, and they do 

not dispute Defendants’ asserted statement of undisputed fact that, other than Jones and Pezas, 

Plaintiffs reside in various states. See id. at ¶¶ 1–4; ECF No. 24-1 ¶ 6.
7

general venue statute, 28 U.S.C. § 1391, applies. Vencor Nursing Ctrs., L.P. v. Shalala, 63 

F. Supp. 2d 1, 6 (D.D.C. 1999); see Pls.’ Opp. at 30. 

The Court cannot agree with Plaintiffs. The Vencor court held, with little analysis, that

because the Supreme Court had recognized a collaterality exception to § 405(g)’s exhaustion 

requirement in Mathews v. Eldridge, 424 U.S. 319, 329–31 (1976), § 405(g) as a whole did not 

apply to any collateral claim. 63 F. Supp. 2d at 6 (“In this case, however, § 405(g) and (h) do not 

apply, because this action is collateral to any claim for benefits.”). But in Eldridge, the Supreme 

Court did not hold that other portions of § 405(g) no longer applied. For example, it determined 

that the presentment element of § 405(g) jurisdiction is nonwaivable, and that “the only avenue 

for judicial review” of Eldridge’s claim was § 405(g). 424 U.S. at 327–28. And in cases both 

before and after Eldridge, the Court has held that jurisdiction over a claim arising under the 

Social Security Act, even one which the plaintiff characterizes as procedural or collateral, can be 

obtained only under § 405(g), and not under 28 U.S.C. § 1331.

7

 See Shalala v. Illinois Council 

on Long Term Care, Inc., 529 U.S. 1, 10–15 (2000); Heckler v. Ringer, 466 U.S. 602, 611–21 

(1984); Weinberger v. Salfi, 422 U.S. 749, 756–63 (1975). Thus, because § 405(g) continues to 

apply, there is no exception to its venue provision for suits raising collateral issues. See Integrity 

Social Work Servs., LCSW, LLC v. Azar, No. 20-cv-118 (BAH), 2020 WL 3103913, at *6

(D.D.C. June 11, 2020); Michener v. Saul, No. 18-cv-1657 (RC), 2019 WL 3238582, at *3 

(D.D.C. July 18, 2019) (transferring another putative class action challenging application of the 

WEP for improper venue). And because there is no collaterality exception to 28 U.S.C. 

 7 The only exception to this rule is mandamus jurisdiction under 28 U.S.C. § 1361. Although the 

Supreme Court has declined to address whether mandamus is available in Social Security cases, 

Bowen v. City of New York, 476 U.S. 467, 478 n.9 (1986), the D.C. Circuit has held that it is, see 

Monmouth Med. Ctr. v. Thompson, 257 F.3d 807, 813 (D.C. Cir. 2001). 
8

§ 405(g)’s venue provision, Defendants are correct that this Court is an improper venue for the 

claims of all plaintiffs except Jones and Pezas.

When venue is improper, the Court “shall dismiss, or if it be in the interest of justice, 

transfer such case to any district or division in which it could have been brought.” 28 U.S.C. 

§ 1406(a). “While as a general matter, a transfer of the case is favored over a dismissal, 

dismissal is appropriate where the plaintiff’s claims have obvious substantive problems.” Lemon 

v. Kramer, 270 F. Supp. 3d 125, 140 (D.D.C. 2017) (cleaned up). Here, the Court will dismiss 

the claims brought by all Plaintiffs except Jones and Pezas for several reasons. First, 28 U.S.C. 

§ 1406(a) provides that a district court may transfer “such case to any district or division in 

which it could have been brought.” There is no district where venue would be proper as to all 

the United States-based plaintiffs, who live variously in “California, Florida, Nevada, North 

Carolina, Texas, Connecticut, and Washington State.” ECF No. 24-1 ¶ 6. Second, Defendants 

ask that the Court dismiss rather than transfer the claims if it finds improper venue, and in 

response, Plaintiffs did not request transfer in such circumstance. Def’s Mot. at 19; Pls.’ Opp. at 

29–31. And finally, as discussed below, “there are ‘substantive problems’ with the [Second 

Amended] Complaint, which, in its current form, would face dismissal.” Lemon, 270 

F. Supp. 3d at 140. For these reasons, transfer of this case is not in the interest of justice, and the 

Court will dismiss the claims of all plaintiffs except Jones and Pezas for improper venue.

B. Administrative Exhaustion

Defendants argue that Plaintiffs failed to exhaust their administrative remedies and that 

no exception to the non-jurisdictional exhaustion requirement applies. Plaintiffs concede that 
9

they have not exhausted the SSA’s administrative procedures, but they argue that the Court 

should excuse this failure.8

 

A court may waive the exhaustion requirement of § 405(g) only if (1) the issue raised in 

the lawsuit is collateral to the matter on appeal; (2) the plaintiffs show that they face irreparable 

injury if the court enforces the requirement against them; or (3) it would be futile to require 

administrative exhaustion. Suarez v. Colvin, 140 F. Supp. 3d 94, 99–100 (D.D.C. 2015).

Plaintiffs argue, and Defendants do not contest, that this test is disjunctive rather than 

conjunctive; that is, a sufficient showing on any of the three prongs will suffice for waiver. Pls.’

Opp. at 11. The case law is not altogether clear on this point. But in Tataranowicz v. Sullivan, 

959 F.2d 268, 274 (D.C. Cir. 1992), the D.C. Circuit held that futility alone can excuse

exhaustion, and in Ryan v. Bentsen, 12 F.3d 245, 248 (D.C. Cir. 1993), it determined that that a 

collateral issue combined with irreparable harm would be sufficient. Many courts in this District 

have considered each ground independently. See, e.g., Am. Hospital Ass’n v. Azar, 385 

F. Supp. 3d 1, 7 (D.D.C. 2019); Suarez, 140 F. Supp. 3d at 100; Nat’l Ass’n for Home Care & 

Hospice, Inc. v. Burwell, 77 F. Supp. 3d 103, 110–112 (D.D.C. 2015); see also Thibeaux v. Soc. 

Sec. Admin., No. 16-5099, 2016 WL 6915553, at *1 (D.C. Cir. Oct. 6, 2016) (per curiam). But 

see Beattie v. Astrue, 845 F. Supp. 2d 184, 192–93 (D.D.C. 2012) (finding that the plaintiff’s 

claims were collateral but declining to excuse exhaustion because he did not show futility or 

irreparable harm); Friedman v. Leavitt, No. 8-cv-586 (RMU), 2008 WL 11389031, at *5 n.3 

 8 Jones and Pezas are the only plaintiffs for whom venue is proper here, but the Court’s 

exhaustion analysis likewise applies to all plaintiffs except Alain Merkel. Merkel has not yet 

presented a claim to the SSA, and so his case is also barred because he has failed to satisfy the 

mandatory, jurisdictional portion of § 405(g)’s exhaustion requirement, to which the Court may 

not make exceptions. See Heckler v. Ringer, 466 U.S. 602, 620–22 (1984); Hall v. Sebelius, 689 

F. Supp. 2d 10, 18 n.2 (D.D.C. 2009).
10

(D.D.C. Dec. 6, 2008) (relying on Ryan to hold that a plaintiff must show either futility or both

collaterality and irreparable harm to excuse exhaustion). Ultimately, the Court need not decide 

whether collaterality or irreparable harm alone warrant waiving the exhaustion requirement, 

because “this Court agrees with the SSA that Plaintiff has failed to allege any possible basis for 

waiver, and thus has not satisfied the applicable standards for waiving non-jurisdictional 

exhaustion.” Suarez, 140 F. Supp. 3d at 100.

1. Futility

Plaintiffs argue that it would be futile to pursue their claims through the administrative 

process, because the agency will not render decisions that contradict its own policy. Pls.’ Opp. at 

12–14. A plaintiff seeking to show futility in this Circuit must meet an “extraordinarily high 

hurdle.” Suarez, 140 F. Supp. 3d at 101. “For exhaustion to be futile, there must be a ‘certainty 

of an adverse decision or indications that pursuit of administrative remedies would be clearly 

useless.’” Cost, 770 F. Supp. 2d at 50 (quoting UDC Chairs Chapter, Am. Ass’n of Univ. 

Professors v. Bd. of Trs. of the Univ. of DC, 56 F.3d 1469, 1475 (D.C. Cir. 1995)). Allegations 

that an adverse decision would be highly likely are insufficient. See Comm’cns Workers of Am. 

V. AT&T Co., 40 F.3d 426, 433 (D.C. Cir. 1994). 

Plaintiffs cannot meet the high bar of futility. Most obviously, this is so because one of 

them has in fact received a favorable decision since Defendants filed their motion. After arguing 

that the WEP was not properly applied to his Social Security benefits on account of his Belgian

pension, Plaintiff William Tran received a fully favorable ALJ decision, and the Appeals Council 

did not revisit it. ECF No. 34.9

 Moreover, other similarly-situated beneficiaries (who are not 

 9 Tran alleges that despite his receipt of a final, favorable decision, the SSA has refused to pay 

him the increased benefits to which he is entitled. ECF No. 35-1. Of course, it would be 

worrisome if SSA failed to ultimately abide by its own administrative process. But that would 
11

plaintiffs here) have also won fully favorable decisions. ECF Nos. 42-3–42-5. That some 

beneficiaries have succeeded in pressing the same arguments Plaintiffs advance in this suit 

shows that administrative exhaustion is not futile. 

Plaintiffs try to salvage their futility argument by arguing that inconsistent agency results 

on the same facts show the need for judicial intervention. See, e.g., ECF No. 34 at 3; ECF No. 

42 at 2. And indeed, Plaintiffs submit evidence of another claimant (not a plaintiff here) who

had his fully favorable decision reversed by the Appeals Council, which directed the ALJ to 

apply the WEP to his Social Security benefits because he receives a Belgian pension, even 

though he receives the same pension as Tran and their claims present the same legal issues. ECF 

No. 42. But inconsistent results—even inexplicably inconsistent results—differ from a 

“certainty of an adverse decision.” Cost, 770 F. Supp. 2d at 50. 

Some courts in this District have also found futility when the plaintiffs challenge as 

contrary to law a generally applicable policy which does not depend on the facts of an individual 

case. See, e.g., Hall, 689 F. Supp. 2d at 24 (citing cases). Plaintiffs try to avail themselves of 

this alleged doctrine by arguing that a POMS provision stating that “SSA assumes that work 

which was covered under a foreign social security system was not covered under U.S. Social 

Security” is such a policy. Pls.’ Opp at 13–14. But even assuming this purported doctrine is 

consistent with D.C. Circuit exhaustion precedent, it does not apply here. For starters, Plaintiffs 

have not shown that the SSA’s administrative process is bound by any similarly clear and 

generally applicable policy that makes their claims futile. Indeed, that other claimants have 

 

not show a certainty of an adverse decision regarding a cause of action in the complaint, since 

Plaintiffs do not allege that the SSA has failed to pay him the benefits which its own 

administrative process has already awarded him. The alleged failure of SSA to immediately 

comply with this favorable decision says nothing about whether Plaintiffs are certain to obtain an 

adverse decision after exhausting their administrative remedies.
12

succeeded on grounds similar to those Plaintiffs argue here shows that, even if such a policy 

exists, its administrative process is not bound by it. In any event, though, Plaintiffs struggle to 

even identify a particular policy at issue. The passage they cite from the POMS is simply a 

general statement, which is followed by more specific guidelines that determine which foreign 

pensions trigger application of the WEP and which do not. See ECF No. 26 (“Defs.’ Reply”) at 

2; POMS GN 00307.290, Evidence of Foreign Pensions and the Windfall Elimination Provision 

(WEP) (June 4, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0200307290. 

For similar reasons, Beeler v. Colvin, No. 1:15-cv-01481-SEB-MJD, 2016 WL 7111646 

(S.D. Ind. Dec. 7, 2016), does not apply here. In that case, Canadian-American plaintiffs 

challenged application of the WEP to their Canadian or Quebecois pensions, and the court found 

that administrative exhaustion would be futile. Id. at *3. But in that case, the POMS had a 

specific provision stating that “[p]ayments made under the Canada Pension Plan (CPP) and 

Quebec Pension Plan (QPP) are earnings-based and are subject to WEP offset.” Id. As the court 

noted, there was no ambiguity or room for interpretation in application of the provision to those 

plaintiffs’ CPP or QPP pensions. Id. This case presents nothing of the sort, especially as to the 

two remaining plaintiffs, Jones and Pezas. See Second Am. Compl. ¶¶ 4, 35.

2. Collaterality

Next, Plaintiffs argue that the Court should waive exhaustion because their claims that 

the WEP does not apply to their Social Security benefits are collateral to their substantive claims 

for benefits. Pls.’ Opp. at 17–21. Although a precise definition of “collateral” is elusive, “[a] 

claim is collateral if it is not essentially a claim for benefits.” Fitzgerald v. Apfel, 148 F.3d 232, 

234 (3d Cir. 1998) (quoting Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993)); see Heckler v. 

Ringer, 466 U.S. 602, 614 (1984); Arriva Medical LLC v. U.S. Dep’t of Health & Human Servs., 

239 F. Supp. 3d 266, 279 (D.D.C. 2017). That is, a claim is collateral if the plaintiffs challenge 
13

some element of the process that stands apart from the ultimate question of whether they will 

receive benefits in a particular case. For example, claims of procedural irregularities, such as 

claims that the administrative procedure is constitutionally defective, Eldridge, 424 U.S. at 330, 

or that there exists a covert agency-wide policy of failing to follow an acknowledged procedure 

for evaluating disability claims, Bowen v. City of New York, 476 U.S. 467, 483–86 (1986), are 

collateral.

10 On the other hand, a claim that requires for its resolution application of the law to 

particular facts of the plaintiff’s case is not collateral. See id. at 484–85; Friedman, 2008 WL 

11389031, at *4–5. And “[e]ven where a plaintiff does not directly challenge the substance of 

agency action, his claims may still be barred if they are ‘inextricably intertwined with the 

conduct of the very [administrative] proceeding the statute grants the [agency] the power to 

institute and resolve as an initial matter.’” Arriva Medical, 239 F. Supp. 3d at 279 (quoting 

Jarkesy v. S.E.C., 803 F.3d 9, 23 (D.C. Cir. 2015)) (alterations in original)); see also Heckler, 

466 U.S. at 614. 

Plaintiffs make several arguments that their claims are collateral, but none carry the day. 

They try to draw parallels between their case and Tataranowicz and Bowen, arguing that because 

they challenge a policy, rather than (for example) a factual determination, their claim is 

collateral. Pls.’ Opp. at 17–18. But the Tataranowicz court based its decision on the futility 

exception; it explicitly disclaimed reliance on collaterality. 959 F.3d at 275. And in Bowen, the 

plaintiffs’ challenge to the policy at issue there clearly stood apart from their claims for benefits. 

In that case, the plaintiffs challenged an unlawful adoption of a secret agency-wide policy by 

 10 The Bowen Court waived the exhaustion requirement of § 405(g) based on futility and

collaterality. See Bowen, 476 U.S. at 485.
14

which the SSA presumed that mentally disabled claimants whose impairments did not meet or 

equal an impairment listed in agency regulations retained the capacity to do at least unskilled 

work, rather than proceeding to evaluate their capacity.11 476 U.S. at 470–71, 473. The policy 

was an obstacle to obtaining a valid, fair decision on whether the plaintiffs would have a right to 

benefits, and after that obstacle was removed, some plaintiffs would ultimately receive benefits, 

while others would not. See also Harvey v. Colvin, No. 13-cv-1957 (RMC) (DAR), 2015 WL 

4078223, at *7 (D.D.C. July 1, 2015) (“Other Circuits have held such claims to be collateral to a 

substantive claim for benefits when, as here, the plaintiffs ‘would not automatically be entitled to 

receive benefits if they prevail, but only to receive “the procedure they should have been 

accorded in the first place.”’” (quotation omitted)).

 11 In an argument which does not fit neatly into any of the three traditional bases for judicial 

waiver of exhaustion, Plaintiffs also argue that they too challenge a secret, agency-wide policy 

and so, as in Bowen, the Court should excuse them from exhausting their administrative 

remedies. Pls.’ Opp. at 23–24. But for a variety of reasons, the Court declines to carve out a 

new basis for waiver here. The covert nature of the government’s conduct in Bowen was most 

relevant to the Court’s discussion of equitable tolling of the statute of limitations, which is not at 

issue in this case. 476 U.S. at 477–81. And the Court appears to have relied on this ground to 

waive the exhaustion requirement only as to those members of a certified class for whom, at the 

time the lawsuit was filed, it was too late to engage further in the administrative process. Id. at 

482. Plaintiffs here—in particular, Jones and Pezas—do not allege that they are similarly 

situated. Finally, this case does not present similar “secrecy” on the part of the government. 

Unlike in Bowen, where the policy was truly hidden, see id. at 473–74, Plaintiffs assert that the 

Social Security Handbook, a layperson’s guide to SSA policy, discusses the WEP but does not 

say that it applies to the benefits received by some beneficiaries who have foreign pensions. 

Pls.’ Opp. at 24. They concede, however, that the applicable provisions of the POMS are 

available to the public. Id. at 24–26. And unlike in Bowen, the government informed Plaintiffs

that the WEP was in fact applied to their benefits by virtue of their receipt of a foreign pension. 

Although Plaintiffs further argue that the government does not specifically disclose that its 

application of the WEP to them and those similarly situated is unlawful, id. at 25–26, a mere

allegation of unlawful agency action does not excuse administrative exhaustion. See Defs.’ 

Reply at 12. 
15

Here, by contrast, whether the WEP should be applied to Plaintiffs’ benefits is the 

ultimate issue they seek to have decided in their case; their claims to increased benefits entirely 

turn on that question. Thus, their case is much more like Heckler, in which the Supreme Court 

found that the legality of a policy denying coverage for a specific kind of heart surgery was not a 

collateral issue when the plaintiffs’ ultimate goal was payment for that surgery. 446 U.S. at 614. 

There, as here, the challenged policy was “inextricably intertwined” with the plaintiffs’ 

substantive claim for benefits. Id.12 

Plaintiffs also again rely on Beeler, which found that the plaintiffs’ challenge to 

application of the WEP to their benefits based on their Canadian and Quebecois pensions was 

collateral. See Pls.’ Opp. at 18–20. The Beeler court, applying Seventh Circuit precedent, found 

that “the amount of Social Security retirement benefits to which each plaintiff is entitled would 

not be impacted by the outcome of Plaintiffs’ claims in this litigation because that amount has 

already been determined by the SSA with regard to each plaintiff based on his or her individual 

contributions.” 2016 WL 7111646, at *4. The Court finds that reasoning unpersuasive. A 

ruling in the Plaintiffs’ favor on applying the WEP to their claims would increase the amount of 

 12 Plaintiffs try to distinguish Heckler by arguing that there, unlike here, the plaintiffs’ claims 

arose solely under the Social Security Act. In this case, they argue, Plaintiffs’ claims do not 

solely arise under the Act, because the SSA relies on information from foreign governments 

regarding Plaintiffs’ eligibility for and entitlement to foreign pensions when applying the WEP 

and calculating Plaintiffs’ Social Security benefits. Pls.’ Opp. at 20. For starters, it is not at all 

clear why this argument is relevant to collaterality. And even if it were, it is unpersuasive. That 

the calculation of Plaintiffs’ benefits—to which they are entitled under the Social Security Act—

depends in part on information from outside sources does not mean that their claim does not arise 

under the Act, and they cite no authority to support their argument that it does not. See Heckler, 

466 U.S. at 621 (holding that a plaintiff’s claim “arose under” the Act where the ultimate 

outcome he sought was payment under the Act, even when he had not yet presented a claim to 

the SSA, because to hold otherwise would “allow claimants substantially to undercut Congress’

carefully crafted scheme for administering the Medicare Act”). 
16

benefits they receive across the board. Whether the SSA has already calculated the amount they 

would receive without the WEP is of no moment. And that Plaintiffs have already been found to 

be entitled to some benefits does not mean that a suit seeking to increase those benefits is 

collateral.13

In the end, a collaterality analysis is not amendable to a rigid, mechanical test. Cf.

Bowen, 476 U.S. at 484 (stating that “application of the exhaustion doctrine is ‘intensely 

practical’” (quotation omitted)). The ultimate question is whether, at bottom, the plaintiffs’ 

claim is one for substantive benefits, or something else. For all the above reasons, the claim here 

is fundamentally one for benefits.

3. Irreparable Harm

Finally, Plaintiffs argue that they would be irreparably harmed if forced to complete a 

long administrative process before suing, because they are elderly, retired people with limited 

incomes and applying the WEP to their benefits has “a significant impact on Plaintiffs’ standard 

of living at an advanced age.” Pls.’ Opp. at 22. But in this Circuit, an “irreparable harm is an 

imminent injury that is both great and certain to occur, and for which legal remedies are 

inadequate.” Beattie, 845 F. Supp. 2d at 192–93 (citation omitted). Harm is irreparable only 

where retroactive payments would not make the plaintiff whole. See Eldridge, 424 U.S. at 331. 

“To demonstrate irreparable harm, a plaintiff generally must demonstrate more than economic 

distress, even if severe.” Nat’l Ass’n for Home Care & Hospice, Inc. v. Burwell, 77 F. Supp. 3d 

103, 110 (D.D.C. 2015). 

 13 Similarly, the Court disagrees with Plaintiffs’ argument, relying on Beeler and the Seventh 

Circuit’s decision in Marcus v. Sullivan, 926 F.2d 604, 614 (7th Cir. 1991), that any challenge to 

a “system-wide” policy is necessarily collateral. In fact, the Marcus court emphasized that the 

plaintiffs in that case facially challenged a policy which stood “independent of the ultimate 

merits of each plaintiff’s claim for benefits.” Id. 
17

Here, although unfortunate, the hardships that Plaintiffs allege do not meet the high 

standard of irreparability in this Circuit. Plaintiffs frame their suffering as a diminished ability to 

meet the demands of daily life, leading to “a lowered standard of living that cannot be recouped 

years later,” Pls.’ Opp. at 22, but they allege neither the severity nor the irreversibility necessary 

to meet the standard of irreparable harm. Defendants correctly point out that, if it were enough 

to show irreparable harm that an elderly plaintiff was faced with a lower standard of living, then

many Social Security recipients challenging benefits determinations would be excused from the 

administrative review process, and the exception would swallow the rule. Defs.’ Reply at 9–10. 

And while Plaintiffs allude to both medical and financial problems, they do not allege that the 

WEP makes them unable to pay for or access any currently-necessary medical treatment. And 

although several have submitted declarations attesting to the more specific harms they either 

have suffered or may suffer, Jones and Pezas, the only remaining plaintiffs for whom venue is 

proper, have not done so.14

* * *

Because Plaintiffs do not meet any of the criteria for judicial waiver of the exhaustion 

requirement in 42 U.S.C. § 405(g), the Court will grant Defendants’ motion for summary 

judgment for failure to exhaust as to the two remaining plaintiffs, Jones and Pezas. 

 14 Only two plaintiffs come close to meeting the standard based on their declarations, but they 

both come up short. The first states that due to blocked arteries in her legs, “it could be in the 

future [she] might need major surgery if [she is] not to lose the use of [her] legs,” and that there 

is “no way” she could afford the required surgery. ECF No. 35-4 ¶ 3. But while inability to 

afford such a procedure is a sufficiently “great,” harm, she does not say that it is “imminent” or 

indicate that it is “certain”—as opposed to merely possible—that she will need it. Beattie, 845 F. 

Supp. 2d at 192–93. The second states that she had lived part-time in Florida, where the climate

helped her lung condition, but that her expenses forced her to sell her home there, and that at age 

65 she now has “the lungs of an 80 year old.” ECF No. 35-5 ¶¶ 2–5. Again, while unfortunate, 

her representations do not show she would suffer “irreparable harm” by following the 

administrative process here.
18

C. Other Bases for Judicial Review

Plaintiffs offer two bases other than 42 U.S.C. § 405(g) for this Court to hear their case: 

42 U.S.C. § 1383(c)(3) and 28 U.S.C. § 1361. Neither is available. 42 U.S.C. § 1383(c)(3) 

provides for judicial review of certain benefits decisions “as provided in section 405(g) of this 

title to the same extent as the Commissioner’s final determinations under section 405 of this 

title.” Because judicial review of Plaintiffs’ claims is not appropriate under § 405(g), neither is it 

under § 1383(c)(3). Turning to 28 U.S.C. § 1361, mandamus jurisdiction, Plaintiffs have not met 

the extraordinarily high bar mandamus requires. “A court may grant mandamus relief only if: 

(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is 

no other adequate remedy available to plaintiff.” Lovitky v. Trump, 949 F.3d 753, 759 (D.C. Cir. 

2020) (quoting Baptist Mem’l Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010)). Plaintiffs

meet none of the requirements. First, they have not shown a clear right to relief or a clear 

nondiscretionary duty on the part of Defendants. Indeed, they essentially fail to argue the point, 

claiming only that Defendants have a “clear nondiscretionary duty to the Plaintiffs not to violate 

the law.” Pls.’ Opp. at 27. But it is far from clear that application of the WEP to Plaintiffs’ 

pensions in fact violates the law, and Plaintiffs do not show that it does. This question “merges 

with the merits” of the case, Lovitky, 949 F.3d at 759 (quotation omitted), and Plaintiffs, 

conceding that “[t]here is no argument at this stage about the merits,” Pls.’ Opp. at 9, do not 

address them. In addition, mandamus is not available here because Plaintiffs have not exhausted 

administrative remedies and are not excused from doing so. See Monmouth Med. Ctr. v. 

Thompson, 257 F.3d 807, 813 (D.C. Cir. 2001). 
19

Conclusion

For all of these reasons, the Court will grant Defendants’ Motion to Dismiss or, in the 

Alternative, for Summary Judgment (ECF No. 24). A separate order will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: September 29, 2020