UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) BRIAN HALL, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-1715 (RMC) ) 1 KATHLEEN SEBELIUS, Secretary, ) Department of Health & Human Services,) et al. ) ) Defendants. ) )

MEMORANDUM OPINION

Brian Hall, Lewis Randall, Norman Rogers, John J. Kraus, and Richard K. Armey

are retirees who “do not want to apply for, or want to disenroll from Medicare, Parts A and B . . .

[but] do want to apply for and/or be paid their monthly Social Security benefits to which they are

entitled.” Am. Compl. [Dkt. # 4] ¶ 11. They have filed this lawsuit pursuant to the Medicare Act,

et seq., the Social Security Act,

et seq., and the Administrative

Procedure Act (“APA”),

et seq., alleging that the Social Security Administration’s

(“SSA”) regulations regarding Medicare Part A, as set forth in the SSA’s Program Operations

Manual System (“POMS”) are invalid and operate either to deprive Plaintiffs of their right to Social

Security benefits or to force them to “enroll in” Medicare Part A against their will. Defendants

Kathleen Sebelius, Secretary of the Department of Health and Human Services (“HHS”) — of which

the SSA is a part — and Michael J. Astrue, Commissioner of the SSA, move to dismiss. Dkt. # 12.

1 Pursuant to Federal Rule of Civil Procedure 25(d), Kathleen Sebelius is substituted as Secretary for her predecessor, Michael O. Leavitt, Secretary of the U.S. Department of Health and Human Services. I. FACTS

Pursuant to the relevant provisions of the Social Security Act, “[e]very individual who

has attained age 65 and is entitled to monthly insurance benefits . . . shall be entitled to hospital

insurance benefits under Part A of [the Medicare Act].”

(a). Plaintiff retirees “do

not want to apply for, or want to disenroll from Medicare, Parts A and B . . . [but] do want to apply

for and/or be paid their monthly Social Security benefits to which they are entitled.” Am. Compl.

¶ 11. When Plaintiffs filed their Amended Complaint in December 2008, three of the five plaintiffs

— Mr. Hall, Mr. Kraus, and Mr. Armey — had been receiving monthly Social Security benefits for

several years. See

. Mr. Kraus and Mr. Armey were also participants in the Medicare

Part A insurance program, and Mr. Hall would be required to accept Medicare Part A beginning in

January 2009.

The remaining plaintiffs, Mr. Randall and Mr. Rogers, were eligible for monthly

Social Security benefits at the time the Amended Complaint was filed but had not applied for them,

apparently to avoid being required to accept Medicare Part A. See

. All Plaintiffs argue

that the SSA’s policies, as set forth in the POMS, “are patently contrary to the Social Security Act”

in that they require Plaintiffs to accept Medicare Part A as a condition of receipt of their monthly

Social Security benefits. See

.

The POMS is internal guidance for SSA employees, and interprets the Social Security

Act and other relevant statutes. See SSA’s Policy Information Site - About POMS,

https://secure.ssa.gov/apps10/poms.nsf/aboutpoms (last visited September 28, 2009). According to

a “Disclaimer” on the SSA’s website,

The POMS states only internal SSA guidance. It is not intended to, does not, and may not be relied upon to create any rights enforceable at law by any party in a civil or criminal action. Further, by posting

-2- the POMS, SSA is not thereby limited from exercising its otherwise lawful prerogatives. If the content of the POMS conflicts with the Social Security Act, another relevant statute, SSA regulations, or Social Security Rulings, those authorities have priority over the POMS.

The POMS contains several provisions relating to Medicare Part A (a.k.a. “Health Insurance” or

“HI”). The three challenged herein — POMS HI 00801.002, POMS HI 00801.034, and POMS GN

00206.020 — all state that a claimant who is entitled to monthly benefits may withdraw from

Medicare Part A by withdrawing his application for monthly benefits, but he may not withdraw only

from Medicare Part A while retaining his monthly benefits. For example, POMS 00801.002 states,

under the heading “Policy,” “Individuals entitled to monthly benefits which confer eligibility for HI

may not waive HI Entitlement. The only way to avoid HI Entitlement is through withdrawal of the

monthly benefit application. Withdrawal requires repayment of all RSDI and HI benefit payments.”

SSA - POMS: HI 00801.002 - Waiver of HI Entitlement by Monthly Beneficiary - 08/30/92,

https://secure.ssa.gov/apps10/poms.nsf/lnx/0600801002!opendocument (last visited September 28,

2009) (emphasis in original). In other words, one must be receiving Social Security benefits to be

“entitled” to Medicare Part A but one cannot escape Medicare Part A without repaying all benefits

received and forgoing Social Security. The other POMS provisions at issue contain similar

language.

Plaintiffs challenge the POMS on the ground that it is the SSA’s policy, as expressed

in the POMS, and not the Social Security Act that prevents Plaintiffs from withdrawing from

Medicare Part A while still receiving Social Security. Defendants have moved to dismiss pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiffs’ understanding of

the POMS and its relation to the statute is flawed and, furthermore, that Plaintiffs lack standing to

-3- bring this claim, have failed to exhaust their administrative remedies, and have identified no final

agency action subject to judicial review. See Defs.’ Mem. In Supp. of Mot. to Dismiss (“Defs.’

Mem.”) [Dkt. # 12] at 1-2.

II. LEGAL STANDARDS

A. Motion to Dismiss

A defendant moving to dismiss pursuant to Rule 12(b)(1) argues that the court lacks

subject matter jurisdiction over a plaintiff’s claims. Federal courts are courts of limited jurisdiction

and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life

Ins. Co. of Am.,

(1994); St. Paul Mercury Indem. Co. v. Red Cab Co.,

(1938). No action of the parties can confer subject matter jurisdiction on a federal court

because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District

of Columbia,

(D.C. Cir. 2003). The party claiming subject matter jurisdiction

bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States,

(D.C. Cir. 2008).

A motion to dismiss pursuant to Rule 12(b)(6) challenges the adequacy of a complaint

on its face, testing whether a plaintiff has properly stated a claim. A sufficient complaint “contains

a short and plain statement of the claim showing that the pleader is entitled to relief” enough “to give

a defendant fair notice of the claims against him.” Ciralsky v. CIA,

(D.C. Cir.

2004) (citing Fed. R. Civ. P. 8(a)). Although a complaint need not include detailed factual

allegations, a plaintiff’s obligation to provide the grounds for his entitlement to relief “requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly,

(2007) (internal citations omitted). The facts

-4- alleged “must be enough to raise a right to relief above the speculative level,”

and a court need

not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast

as factual allegations. Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc.,

, 16 n.4 (D.C.

Cir. 2008).

For both a Rule 12(b)(1) and a Rule 12(b)(6) motion, the Court must treat the

complaint’s factual allegations — including mixed questions of law and fact — as true, drawing all

reasonable inferences in the plaintiff’s favor. Macharia v. United States,

(D.C.

Cir. 2003). In deciding a Rule 12(b)(6) motion, the Court may consider only “the facts alleged in

the complaint, documents attached as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao,

(D.D.C. 2002) (citation omitted). In deciding a Rule 12(b)(1) motion, however, a court

may consider materials outside the pleadings. Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992).

B. “Final Agency Action” and Exhaustion of Administrative Remedies Under the APA

The APA allows courts to review agency actions and to set aside those actions that

are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

. Courts may not, however, review non-final agency actions. Fund for Animals, Inc. v. United

States BLM,

(D.C. Cir. 2006). A final agency action “1) marks the consummation

of the agency’s decision making process — it must not be of a merely tentative or interlocutory

nature, and 2) the action must be one by which rights or obligations have been determined or from

which legal consequences will flow.” Bennett v. Spear,

(1997); Domestic Secs.

v. SEC,

(D.C. Cir. 2003). Therefore, prior to reaching the merits of a plaintiff’s

-5- claims, a court must consider whether the agency’s position is definitive and whether it has a “direct

and immediate effect” on the parties. Indep. Petroleum Ass’n v. Babbitt,

(D.C.

Cir. 2001).

Furthermore, even where there is final agency action, the Court must consider “[t]he

waivable element . . . that the administrative remedies prescribed by the [agency] be exhausted.”

Mathews v. Eldridge,

(1976). The Social Security Act provides:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.

(g). “[I]f plaintiffs make no claim that any of their number exhausted their remedies

. . . , they can secure judicial review only if the exhaustion requirement is excused.” Tataranowicz

v. Sullivan,

(D.C. Cir. 1992). “A court may waive the exhaustion requirements

of § 405(g) when: (1) the issue raised is entirely collateral to a claim for payment; (2) plaintiffs show

they would be irreparably injured were the exhaustion requirement enforced against them; and (3)

exhaustion would be futile.” Triad at Jeffersonville I, LLC v. Leavitt,

(D.D.C.

2008) (citing Bowen v. City of New York,

(1986)); accord, e.g., Kildare v.

Saenz,

(9th Cir. 2003). In such situations, “a district court may, in its

discretion, excuse exhaustion if ‘the litigant’s interests in immediate judicial review outweigh the

government’s interests in the efficiency or administrative autonomy that the exhaustion doctrine is

designed to further.’” Avocados Plus Inc. v. Veneman,

(D.C. Cir. 2004)

(quoting McCarthy v. Madigan,

(1992)).

-6- III. ANALYSIS

The Government moves to dismiss the Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiffs lack standing to pursue these claims, that the

POMS provisions are not final agency action, and that Plaintiffs failed to exhaust their administrative

remedies. Rule 12(b)(1) applies to lack of standing, while Rule 12(b)(6) applies to non-final agency

action and failure to exhaust. The Court will address each of these arguments in turn.

A. Standing

Defendants challenge Plaintiffs’ standing under Article III of the United States

Constitution. If Plaintiffs cannot meet this constitutional requirement, the Court lacks jurisdiction

to reach the merits of the case. See Steel Co. v. Citizens for a Better Env’t,

(1998);

Grand Council of the Crees v. FERC,

(D.C. Cir. 2000). To have Article III

standing, a plaintiff must establish: “(1) [he] has suffered an ‘injury in fact’ that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs.,

(2000) (citing Lujan v. Defenders of Wildlife,

(1992)).

Plaintiffs Mr. Randall and Mr. Rogers do not have standing to challenge the POMS.

These two plaintiffs have suffered no injury-in-fact as a result of Defendants’ actions because they

have not yet attempted to receive Social Security benefits and, therefore, are not subject to Medicare

Part A. See Am. Compl. ¶¶ 4-5. They allege that they “are aware of the [challenged POMS

provisions] . . . and understand that for them not to enroll in Medicare, Part A, or to disenroll from

-7- Medicare, would cause them to forfeit their Social Security monthly benefits.” Am. Compl. ¶ 26.

However, as they have not applied for any benefits yet, any injury is at this point hypothetical or

speculative, and thus insufficient to establish standing.2 See Friends of the Earth,

;

Nat’l Treasury Employees Union v. United States,

(D.C. Cir. 1996).

Conversely, Messrs. Kraus, Armey, and Hall have applied for and are receiving

monthly Social Security benefits and wish to continue to do so; however, they wish to opt-out of

Medicare Part A. Assuming that the POMS prevent them from declining Medicare Part A while

receiving the monthly benefits to which they are entitled, it appears Plaintiffs have a redressable

injury and, thus, standing to pursue this claim. As the Court found in Iyengar v. Barnhart,

(D.D.C. 2002),

[I]n order [] for plaintiffs to establish their standing to sue, they need not eliminate all doubt as to whether the challenged action . . . caused [their injury]. . . . Rather, plaintiffs must show only (1) a substantial probability that [their injury] was or is being caused by the [defendant’s] policy, and (2) a reasonable likelihood that eliminating that policy will [redress that injury].

See also Defs.’ Mem. at 27-28 (“Assuming plaintiffs could establish . . . that the POMS provisions

(rather than the statute and regulations) were the source of the denial of their claims, it would be fully

within Commissioner’s power to set aside the challenged provisions.”).

2 This Circuit has said that if at least one plaintiff can demonstrate that he has standing, the Court “need not consider the standing of the other plaintiffs to raise that claim.” Mountain States Legal Found. v. Glickman,

(D.C. Cir. 1996). Nonetheless, the claims of Messrs. Randall and Rogers still must be dismissed because they have not met the requirement under the Social Security Act that a claimant “present” his or her claim to the Secretary. See Mathews v. Eldridge,

(1976) (finding that “the requirement that a claim for benefits shall have been presented to the Secretary” is nonwaivable); National Kidney Patients Ass’n v. Sullivan,

(D.C. Cir. 1992).

-8- B. Final Agency Action

Having found that the Court is not deprived of jurisdiction over the claims of Messrs.

Hall, Kraus, and Armey, the Court must determine whether the POMS provisions at issue constitute

final agency action. Non-final agency action is not subject to judicial review under the APA.

“‘Agency action’ is defined by the APA as ‘the whole or part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof, or failure to act.’” Nat’l Ass’n of Home Builders

v. Norton,

, 13 n.5 (D.C. Cir. 2005) (quoting

(13)). A final agency action

is one that (1) represents the consummation of the agency’s decisionmaking process and (2)

determines rights or obligations or creates legal consequences. See Bennett,

;

Appalachian Power Co. v. EPA,

(D.C. Cir. 2000). The POMS meets both

prongs of this test.

Agency actions that have undergone extensive review are considered definitive where

they mark the consummation of the agency’s decision making process. Appalachian Power Co.,

(finding this condition met where the Environmental Protection Agency’s internal

“Guidance,” in its challenged form, was “unequivocal” in its policy statements and was issued

“follow[ing] a draft circulated four years earlier and another, more extensive draft circulated [prior

to that]”). The POMS is definitive because the SSA issued it only after extensive review. Various

SSA components with specific expertise write each provision of the POMS, which are then subject

to preliminary and final rounds of review. See Office of the Inspector General, Audit Report -

A-13-97-92002, http://www.ssa.gov/oig/ADOBEPDF/audit_htms/97-92002.htm (last visited

September 28, 2009) (“POMS procedures are written by components with expertise in specific

program areas. For example, POMS RM 00205.000, Resolving Social Security Number Problems,

-9- is written by staff in the Division of Entitlement under the Office of Program Benefits Policy. The

Division of Directives Management has responsibility for the preliminary and final review of the

procedures.”). Furthermore, the possibility of future SSA revision of POMS does not affect POMS’

current status as final agency action because “all laws are subject to change” and therefore “[t]he fact

that a law may be altered in the future has nothing to do with whether it is subject to judicial review

at the moment.” Appalachian Power Co.,

(citation omitted).

The POMS remain definitive and mark the consummation of the SSA’s decision-

making process despite being issued without public notice and comment. Interpretive rules, unlike

substantive rules, may constitute final agency action without fulfilling the APA’s requirement of

public notice and comment. See

(b) (an exception to the public notice and comment

requirement exists for “interpretive rules, general statements of policy, or rules of agency

organization, procedure, or practice”); Appalachian Power Co.,

(“‘Interpretative

rules’ and ‘policy statements’ may be rules within the meaning of the APA and the Clean Air Act,

although neither type of ‘rule’ has to be promulgated through notice and comment rulemaking.”).

The POMS provisions are interpretive rules. See Wash. State Dep’t of Soc. & Health Servs. v.

Guardianship Estate of Keffeler,

(2003) (noting that POMS are “administrative

interpretations” and “not products of formal rulemaking”); Power v. Barnhart,

(D.C. Cir. 2002) (treating the POMS as an internal “interpretive document” of the SSA). Therefore,

the POMS is excepted from the requirement of public notice and comment. See, e.g., Powderly v.

Schweiker,

(9th Cir. 1983) (finding Social Security claims manual did not need

to fulfill the general APA requirement for public notice and comment). The SSA’s extensive review

of POMS is sufficiently definitive to fulfill the first condition of final agency action, even in the

-10- absence of public notice and comment.

The POMS also meets the second requirement for final agency action — it determines

rights and creates legal consequences. The Court agrees with Plaintiffs that the POMS, and not the

Social Security Act or the accompanying regulations, created the condition Plaintiffs challenge here.3

The finality of agency actions is interpreted in a “pragmatic” way. Gem County Mosquito Abatement

Dist. v. EPA,

(D.D.C. 2005) (quoting FTC v. Standard Oil Co.,

(1980)). A pragmatic analysis demonstrates the unlikeliness of Defendants’ claim that the

POMS merely mirrors the Social Security Act and regulation, as neither the statute nor the regulation

requires a withdrawal from retirement benefits in order to withdraw from Medicare Part A. The

Social Security Act states, in relevant part, “Every individual who has attained age 65 and is entitled

to monthly insurance benefits [i.e., monthly Social Security benefits] . . . shall be entitled to hospital

insurance benefits under [Medicare Part A].”

(a). Similarly, the federal regulation

does not link withdrawal from Social Security benefits with withdrawal from Medicare Part A;

rather, it only states that individuals are permitted to withdraw from monthly Social Security benefits

if, inter alia, “[a]ll benefits already paid based on the application being withdrawn are repaid or we

are satisfied that they will be repaid.”

. Neither the statute nor the regulation

specifies that Plaintiffs must withdraw from and repay retirement benefits in order to withdraw from

Medicare Part A. In contrast, the POMS explicitly states that condition, mandating: “The only way

to avoid [Medicare Part A] is through withdrawal of the monthly [Social Security] benefit

3 This does not conflict with the Court’s earlier holding that under the Social Security Act Plaintiffs are automatically “entitled’ to Medicare Part A, as the earlier issue is distinct from whether an individual must withdraw from retirement benefits in order to withdraw from Medicare Part A. See February 25, 2009 Memorandum Opinion [Dkt. # 13].

-11- application.” POMS HI 00801.002. Thus, it appears that the POMS determines Plaintiffs’ rights

or obligations in this instance and is an action from which legal consequences flow.

Finally, the Court takes into consideration the fact that other courts have reviewed

the POMS and afforded it Skidmore4 deference. Although the POMS does not have the force of law,

which would entitle it to the high level of deference described in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc.,

(1984), most courts have treated the POMS as

interpretive rules entitled to deference at the lower level established in Skidmore v. Swift &

Company. See Wash. State Dept. of Soc. and Health Servs. v. Guardianship Estate of Wash. State

Dept. of Soc. and Health Servs.,

(2003) (POMS may be treated with deference

even though it was not the product of formal rulemaking) (citing Skidmore, 323 U.S. at 139-140

(1944)); Power v. Barnhart,

(POMS is an agency interpretation which “lack[s]

the administrative formality or other attributes that would justify substantial judicial deference under

Chevron . . . and hence . . . [it] would at best qualify for the more limited form of deference accorded

under Skidmore.”) (internal citations omittted); accord Davis v. Secretary of Health and Human

Services,

(6th Cir. 1989) (“Although the POMS is a policy and procedure manual

that employees of the Department of Health & Human Services use in evaluating Social Security

claims and does not have the force and effect of law, it is nevertheless persuasive.”). There would

be no need for a court to specify a particular level of deference for the POMS if the POMS were

unreviewable by the courts; therefore, the courts’ specification of a level of deference presumes that

the POMS is final agency action. Accordingly, the POMS is subject to judicial review.

4 Skidmore v. Swift & Co.,

(2001).

-12- C. Exhaustion of Administrative Remedies

Finally, the Court must consider whether these plaintiffs exhausted their

administrative remedies or whether exhaustion should be excused. There is some uncertainty

regarding whether a failure to exhaust administrative remedies is properly brought in a Rule 12(b)(1)

motion, as a jurisdictional defect, or in a Rule 12(b)(6) motion for failure to state a claim. See

Marcelus v. Corr. Corp. of America/Corr. Treatment Facility,

, 235 n. 4 (D.D.C.

2008) (collecting cases). The recent trend in this District, however, is to treat failure to exhaust as

a failure to state a claim rather than as a jurisdictional deficiency. See, e.g., Marshall v. Honeywell

Tech. Solutions, Inc.,

, 64 n. 6 (D.D.C. 2008); Cruz-Packer v. District of

Columbia,

(D.D.C. 2008); Marcelus,

; but see

Adams v. U.S. Capitol Police Bd.,

(D.D.C. 2008) (“When a plaintiff fails to

exhaust administrative remedies, dismissal under 12(b)(1) is appropriate.”). In particular, this Court

finds dismissal under Rule 12(b)(1) for failure to exhaust is inappropriate here inasmuch as

requirements for exhaustion as specified by the Social Security Act can be tolled or waived due to

equitable considerations.5 See Mathews v. Eldridge,

(finding that there are

5 Defendants erroneously declare that “the Supreme Court has now explicitly recognized [in Shalala v. Illinois Council,

(2000)] th[at] exhaustion requirements under Social Security and Medicare are statutory, and thus not subject to various judicially created ‘exceptions.’” Defs.’ Mem. at 25. The Illinois Council Court discussed the policy reasons for requiring exhaustion, but still found the requirement waivable in some circumstances:

Proceeding through the agency in this way provides the agency the opportunity to reconsider its policies, interpretations, and regulations in light of those challenges. Nor need it waste time, for the agency can waive many of the procedural steps set forth in § 405(g) . . . and a court can deem them waived in certain circumstances[.]

(internal citation omitted).

-13- “conditions which must be satisfied in order to obtain judicial review under § 405(g)[,] . . . only one

of which is purely ‘jurisdictional’ in the sense that it cannot be ‘waived’ by the Secretary . . . . The

waivable element is the requirement that the administrative remedies prescribed by the Secretary be

exhausted. . . .”); Triad at Jeffersonville I, 563 F. Supp. 2d at16 (“The Supreme Court has repeatedly

held that the exhaustion requirements described in § 405(g) may be waived[.]”).

For the remaining Plaintiffs to have exhausted their administrative remedies under

the Social Security Act or the Medicare Act, they must have received (1) an initial determination,

(2) reconsideration, (3) a hearing before an administrative law judge and, finally, (4) Appeals

Council review.

(a)(1). “When you have completed the steps of the

administrative review process listed in paragraphs (a)(1) through (a)(4) of this section, we will have

made our final decision. If you are dissatisfied with our final decision, you may request judicial

review by filing an action in a Federal district court.”

§ 404.900(a)(5); see City of New York,

(“Proceeding through these three stages [of reconsideration, hearing, and Appeals

Council] exhausts the claimant’s administrative remedies.”).

To the extent the remaining Plaintiffs have engaged in the administrative process at

all, none has gotten so far as to receive a hearing before an administrative law judge. Specifically,

at the time of the filing of this action, Mr. Armey was receiving Social Security benefits but had not

taken any additional action towards the SSA; Mr. Hall had telephoned the SSA to inquire about the

policy and request withdrawal from solely Medicare Part A; and Mr. Kraus had written to his

Congresswoman and, separately, requested in a February 8, 2006 letter that the SSA provide him

with a hearing before an administrative law judge. See Am. Compl ¶¶ 24-29. Thus, all three

-14- Plaintiffs have received initial determinations,6 and Mr. Hall and Mr. Kraus have sought

reconsideration by telephone and letter, respectively. See

(a) (“If you are

dissatisfied with the initial determination, you may request that we reconsider it. In addition, a

person who shows in writing that his or her rights may be adversely affected by the initial

determination may request a reconsideration.”). Mr. Hall’s request to withdraw from only Medicare

Part A was denied over the phone and Mr. Kraus “was informed on December 21, 2005, that . . .

‘There are no provisions in the law allowing for a waiver of Medicare entitlement.’” Am. Compl.

¶ 27. Mr. Kraus then sought an administrative hearing, but received no response from the SSA for

approximately three years.

Thus, no Plaintiff has fully exhausted his administrative remedies,

as none has received an administrative hearing nor an Appeals Council review.

Plaintiffs argue that there are no administrative remedies available to them because

the administrative procedure cited above “relate[s] to initial determinations of Social Security and

Medicare ‘entitlement’ to benefits and . . . the amount of benefits under Medicare,” rather than to

Plaintiffs’ desire to “not enroll in, or disenroll from, Medicare Part A.” Pls.’ Mem. in Opp’n to Defs.’

Mot. to Dismiss (“Pls.’ Opp’n”) [Dkt. # 15] at 23. However, this “distinction” merely represents two

sides of the same coin, as, pursuant to the very POMS provisions Plaintiffs challenge, Medicare Part

A is directly linked to Social Security benefits. Should Plaintiffs need guidance in beginning the

administrative process,

provides a list of forms “for use by the public to request

a withdrawal of an application, a reconsideration of an initial determination, a hearing, [or] a review

of an administrative law judge’s decision.” Alternatively, Plaintiffs might seek administrative review

6

(“[I]nitial determinations include, but are not limited to, determinations about (a) Your entitlement or your continuing entitlement to benefits . . . .”).

-15- in a more informal manner, by writing to the SSA and requesting to withdraw from Medicare Part A

but keep their Social Security benefits, as Mr. Kraus did. The fact that Mr. Kraus sought and received

reconsideration and sought an administrative hearing — though Defendants had not given him one

as of the filing of these motions — belies Plaintiffs’ argument that there are no administrative

remedies available to them.

Thus, Plaintiffs’ failure to exhaust their remedies is fatal to their claims unless the

Court determines the exhaustion requirement should be excused.7 “In this circuit, the exhaustion

requirement may be waived only in the most exceptional circumstances.” UDC Chairs Chapter, Am.

Ass’n of Univ. Professors v. Bd. of Tr. of UDC Chairs Chapter, Am. Ass’n of Univ. Professors,

(D.C. Cir. 1995). One such circumstance is where Plaintiffs can demonstrate

exhaustion would be futile. See

The futility exception only applies where exhaustion would be

“clearly useless,” such as where the agency “has indicated that it does not have jurisdiction over the

dispute, or because it has evidenced a strong stand on the issue in question and an unwillingness to

reconsider the issue.” Randolph-Sheppard Vendors v. Weinberger,

(D.C. Cir.

1986). Even then, “where an agency has articulated a very clear position on the issue which it has

7 In Mr. Kraus’s case it appears that blame for his failure to exhaust administrative remedies lies with the SSA, not with himself. Mr. Kraus received a reconsideration by letter dated December 21, 2005. See Am. Compl. ¶ 27. He was required to request an administrative hearing in writing within 60 days of receiving that letter, see

, which he did. See Am. Compl. ¶ 27. However, the SSA never processed that request. In their reply brief, Defendants state that Mr. Kraus’s request “may have unfortunately been misplaced after being signed for by an SSA employee.” Defs.’ Reply [Dkt. # 18] at 12. At the time of the filing of Defendants’ reply, “SSA [had] forwarded plaintiff Kraus’ request to the appropriate office within DHHS for appropriate processing.”

. Given this history, even if the Court were to find exhaustion not excusable on other grounds, the requirement would be excused for Mr. Kraus on the basis of the SSA’s delay. See, e.g., Angel v. Pan Am. World Airways, Inc.,

(D.D.C. 1981) (finding exhaustion futile where plaintiff’s complaint had been pending before the agency for approximately three years with no action).

-16- demonstrated it would be unwilling to reconsider, we require the certainty of an adverse decision or

indications that pursuit of administrative remedies would be clearly useless.” UDC Chairs Chapter,

56. F.3d at 1475 (emphasis added).

This Circuit has therefore found that

[w]hen an agency has committed itself not to change its rules unless judicially compelled to do so, has made known that its general views are contrary to those of the complainant, and has never given an inkling that it would consider a matter afresh, and when the regulations in question have received careful attention within and outside the agency, a complainant need not make a pro forma request that the agency redo its system.

Etelson v. OPM,

(D.C. Cir. 1982). Similarly, exhaustion may be excused where

“an agency has adopted a policy or pursued a practice of general applicability that is contrary to the

law[.]” DL v. District of Columbia,

(D.D.C. 2006) (citations omitted). For

example, courts have recognized the futility of exhaustion where plaintiffs “do not challenge an

individual . . . decision by [the agency] where agency expertise would be important” but instead

challenge the agency’s “policy, pattern, and practice” or “systemic failure to comply with” federal

law. See

; see also Tataranowicz v. Sullivan,

(D.D.C. 1990), rev’d on

other grounds,

(D.C. Cir. 1992) (“[W]here a claimant alleges more than deviation from

applicable regulations and instead asserts a ‘systemwide . . . policy that [is] inconsistent in critically

important ways with established regulations’ and which does not depend on the particular facts of

the claimant’s case, the exhaustion requirement may be excused.”).

In the present case, Plaintiffs bring just such a challenge. They challenge the SSA’s

policy, as stated in the POMS, requiring individuals wishing to withdraw from Medicare Part A also

to withdraw their application for monthly Social Security benefits and repay any benefits previously

-17- received. As previously discussed, this policy is not found in the Social Security Act or federal

regulations, as Defendants allege, but was apparently created by the SSA and expressed in its POMS.

As Plaintiffs note, there are no facts unique to any of their claims that would allow the SSA to reach

a particular decision for one Plaintiff and a different decision for another, or that should be put on the

record to later assist this Court. See Pls.’ Mem. at 29; D.L.,

(concluding that

“requiring exhaustion here would be futile because, given the nature of the claims presented, agency

expertise would provide no benefit to the judicial resolution of this case.”). Therefore, exhaustion

of remedies is futile for Messrs. Hall, Kraus, and Armey and will be excused.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss [Dkt. # 12] will be

granted with respect to Plaintiffs Mr. Randall and Mr. Rogers, and denied with respect to Mr. Hall,

Mr. Kraus, and Mr. Armey. In light of this decision, pursuant to the Court’s February 18, 2009,

Minute Order, Defendants shall file an opposition to Plaintiffs’ motion for summary judgment [Dkt.

# 15] no later than October 30, 2009. A memorializing Order accompanies this Memorandum

Opinion.

Date: September 29, 2009 /s/ ROSEMARY M. COLLYER United States District Judge

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