Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 1 of 29

1 Reuben Yeroushalmi (SBN 193981)

YEROUSHALMI & YEROUSHALMI
2
An Association of Independent Law Corporations
3 9100 Wilshire Boulevard, Suite 240W
Beverly Hills, California 90212
4 Telephone: 310.623.1926
5
Facsimile: 310.623.1930
Reuben@yeroushalmi.com
6
Attorneys for Petitioner and Plaintiff Elidia Duarte
7

8 UNITED STATES DISTRICT COURT

9
NORTHERN DISTRICT OF CALIFORNIA
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ELIDIA M. DUARTE Case Number: 3:20-cv-00151-JCS
11
Petitioner and Plaintiff, PLAINTIFF ELIDIA DUARTE’S
12
OPPOSITION TO DEFENDANTS’ MOTION
13 TO DIMISS
vs.
14
ANDREW SAUL, Commissioner of the Date: 01/29/21
U.S. Social Security Administration, and Time: 9:30 a.m.
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DOES 1 through 30 Courtroom: F – 15th Floor via Zoom
16 Judge: Hon. Joseph C. Spero
Respondents and defendants.
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1 Table of Contents
2 TABLE OF AUTHORITIES ............................................................................................................... 3
3 ARGUMENT ..................................................................................................................................... 13
4 I. THE RELEVANT STANDARDS FOR A MOTION TO DISMISS ........................................ 14
5 A. The FRCP 12(b)(1) standard: facial attack, factual attack, and conversion into a motion

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for summary judgment. ..............................................................................................................14
i. Defendants’ authorities support this court’s jurisdiction pursuant to the collateral issues
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doctrine. ...................................................................................................................................... 15
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B. THE FRCP 12(b)(6) standard ............................................................................................16
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i. Mrs. Duarte’s Petition and the administrative record attached to it plead facts with
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particularity ................................................................................................................................. 17
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ii. This court should shift the burden onto defendant to prove that Mrs. Duarte did not prevail
12 on the issue of the 2001 alleged overpayments .......................................................................... 17
13 iii. Conversion of an FRCP 12(b)(6) motion into a motion for summary judgment................ 19
14 C. FRCP 12(h)(3) waiver of certain defenses is irrelevant.....................................................19
15 II. THE COURT HAS SUBJECT MATTER JURISDICTION OVER MRS. DUARTE’S CASE,

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PURSUANT TO THE “ENTIRELY COLLATERAL” EXCEPTION ............................................. 19
A. Factor 1: the constitutional challenges. ..............................................................................21
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B. Factor 2: Irreparable Harm.................................................................................................25
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C. Factor 3: Exhaustion of further administrative remedies is futile......................................26
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CONCLUSION .................................................................................................................................. 29
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1 TABLE OF AUTHORITIES
2
Rules
3
POMS GN 03301.020 ........................................................................................................................ 15
4 POMS GN 03910.030 (2011) ............................................................................................................ 25
5 POMS SI 02301.310 .......................................................................................................................... 23
6 POMS SI 04020.020 ............................................................................................................................ 9

7 POMS SI 04030.040 .......................................................................................................................... 22

8
SSR 72-63c ........................................................................................................................................ 24

9 Federal Statutes

10 28 U.S.C. § 1331 ................................................................................................................................ 21

11
28 U.S.C. §1361 ................................................................................................................................. 13
42 U.S.C. § 1383 ................................................................................................................................ 11
12
42 U.S.C. § 404 ............................................................................................................................ 11, 23
13
42 U.S.C. § 405 .................................................................................................................................. 21
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42 U.S.C. §1383 ........................................................................................................................... 23, 25
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5 U.S.C. § 552a ............................................................................................................................ 14, 15
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5 U.S.C. §555 ..................................................................................................................................... 14
17 FRCP 10 ............................................................................................................................................. 17
18 FRCP 12 ................................................................................................................................. 16, 19, 20
19 FRCP. 8 .............................................................................................................................................. 16
20 Federal Regulations
21 20 C.F.R § 416.1402 .......................................................................................................................... 24
22 20 C.F.R. § 404.902 ........................................................................................................................... 24
23 20 C.F.R. § 416.1453 ......................................................................................................................... 22

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20 C.F.R. § 416.1404 ........................................................................................................................... 9
24 C.F.R §§ 416.1500-1506............................................................................................................... 25
25

26 Federal Cases

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Anderson v. Sullivan, 806 F. Supp. 134 (E.D. Tex. Sept. 10, 1992).................................................. 25
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 16
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1 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................. 16

2 Bowen v. City of New York, 456 U.S. 467 (1986).............................................................................. 21
3 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994)................................................................................. 20

4 Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910 (8th Cir. 2015) ............................... 14, 15

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Buckeye Indus., Inc. v. Secretary of Labor, 587 F.2d 231 (5th Cir. 1979) ........................................ 22
Califano v. Sanders, 430 U.S. 99, 109 (1977) ................................................................................... 22
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Conley v. Gibson, 355 U.S. 41 (1957) ............................................................................................... 17
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Davis v. Anthony, Inc., 886 F.3d 674 (8th Cir. 2018) ........................................................................ 14
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Day v. Shalala, 23 F.3d 1052 (6th Cir. 1994) .................................................................................... 21
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Goldberg v. Kelly, 397 U.S. 254 (1970) ............................................................................................ 25
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GOS Operator, LLC v. Sebelius, 843 F.Supp.2d 1218 (S.D. Ala. 2012)..................................... 20, 21
11 Hinton v. Sullivan, 737 F.Supp. 232 (S.D.N.Y. Mar. 28, 1990) (...................................................... 27
12 Iddir v. INS, 301 F.3d 492 (7th Cir. 2002)......................................................................................... 14
13 Johnson v. Shalala, 2 F.3d 918 (9th Cir. 1993) ................................................................................. 16
14 Kildare v. Saenz, 325 F.3d 1078, (9th Cir. 2003) .............................................................................. 16

15
Lugo v. Schweiker, 599 F. Supp. 948 (E.D. Pa. 1984)....................................................................... 24
Murray v. Alaska Airlines, Inc., 400 F. App'x 233, 234 (9th Cir. 2010) ........................................... 18
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Nayab v. Capital One Bank (U.S.), 942 F.3d 480 (9th Cir. 2019) ......................................... 17, 18, 19
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Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991) ............................................................................... 17
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Savage v. Glendale Union High School, 343 F.3d 1036 (9th Cir. 2003)........................................... 15
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Steigerwald v. Comm'r of Soc. Sec., case no. 1:17-CV-1516, 6-7 (N.D. Ohio Jan. 17, 2018) .......... 21
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White v. Lee, 227 F.3d 1214 (9th Cir. 2000)...................................................................................... 15
21 Yick Wo v. Hopkins, 118 U.S. 356 (1886) ......................................................................................... 20
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State Cases
24 Murray v. Alaska Airlines, Inc., 50 Cal.4th 860 (2010)..................................................................... 18
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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

2 Plaintiff and Petitioner, Elidia M. Duarte, hereby respectfully submits her opposition to the
3 defendants’ 11/16/20 Motion to Dismiss.

4 PROCEDURAL STATEMENT

5
Mrs. Duarte is now 83 years old and has Limited English Proficiency. (Administrative
Record (“AR”) 427: 1- 428: 8, 434 ¶ 1). Mrs. Duarte needs the help of an advocate and an
6
interpreter. Id. She is unfamiliar with the Social Security laws. Id. Mrs. Duarte depends on others
7
to help her with government matters. Id. Mrs. Duarte’s experience over the years has been that
8
legal aid offices turn away poor persons seeking assistance. Id. Mrs. Duarte has 3 years of
9
education. (427 ¶1).
10
At the April 22, 1996 disability hearing and at every encounter with the Social Security
11 Administration (“SSA”), Mrs. Duarte has needed and has requested the aid of a Spanish-English
12 interpreter. Id. Mrs. Duarte subsists on Social Security benefits. (AR 428: 8).
13 From January 31, 2015 to October 31, 2015, the Supplemental Security Income (“SSI”)
14 award amount was $151.40. (AR 213-217, 294).

15
On March 15, 2013, an AC transit bus driver crushed Elidia Duarte’s shoulder on an AC
Transit bus and as a result, Mrs. Duarte suffered severe injuries. (AR 175-183). On April, 28 2014,
16
Mrs. Duarte filed a tort suit against AC Transit, Duarte v. AC Transit, Case No. RG 14723111, for
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the March 15, 2013 injuries. Id. Once a Cal. Code of Civ. Proc. § 998 offer is accepted, a judgment
18
is entered in the plaintiff’s favor as a matter of law. (AR 188). On September 22, 2015, the
19
Alameda County Superior Court entered a “998” judgment in Mrs. Duarte’s favor. (AR 188); Cal.
20
Code of Civ. Proc. §998. After attorney’s fees and costs, Mrs. Duarte netted $25,000. (AR 430:24-
21 431: 2, 492) On October 30, 2015, the Trowbridge Law Firm mailed Mrs. Duarte a $25,000,
22 received around November 5, 2015. (AR 431:2; AR 492). On November18, 2015, Mrs. Duarte
23 visited the Social Security Office in Berkeley California to report the judgment received. (AR
24 431:3-4)

25
From that November 18, 2015 encounter onward, the SSA engaged in a pattern of
irregularities. On November 25, 2015, the SSA made an overpayment determination. (AR 1A).
26
The SSA Admin. alleges that Mrs. Duarte received an overpayment of $302 in October and
27
November 2015. (AR 1A). Elidia Duarte did not receive any SSI benefits for the month of
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1 November 2015 into Golden One Acct. # 11413-02862 (designated for SSA direct deposit) or any
2 other account. (AR 218-219).
3 On December 4, 2015 Mrs. Duarte filed an appeal of an alleged overpayment with the SSA
4 asking that her benefits continue pending appeal and including the defendants’ rules. (AR at 2, 4, 5,

5
6, 8, 9).
The SSA failed to continue Mrs. Duarte’s SSI and Medicaid benefits during the disputed
6
period pending the December 4, 2015 and December 07, 2015 appeals, notwithstanding the SSA
7
admin’s express regulations requiring continuation of benefits pending appeal. (AR at 2, 4, 5, 6,
8
431: 10; ).
9
On December 7, 2015, the administration attempted to try the matter without notice and
10
prejudged the matter at the same time Mrs. Duarte submitted her 12/07/15 appeal. (AR 11-15, 20-
11 22, AR 436 ¶¶ 5, 6, 7) On December 7, 2015, Ms. Delgado admitted that she had pre-judged the
12 matter, “why do you want a conference if I am just going to say the same thing that I said today?”
13 (AR 11-15; 437 ¶ 8 ).
14 Also on December 7, 2015, Mrs. Duarte submitted a FOIA and Privacy Act request,

15
addressed to Ms. Delgado, in furtherance of my discovery. (AR 438 ¶ 9) Ms. Delgado failed to
respond to Mrs. Daurte’s discovery request (including an accounting of SSI sums paid 2015). (Id.;
16
AR 11-15, 17).
17
On December 10, 2015 Elidia Duarte received a Request for Reconsideration Summary
18
dated 12/07/15. (AR 13-14). On December 17, 2015, she objected to the Request for
19
Reconsideration Summary. Id; (AR 438 ¶ 9(a)). In that same 12/17/15 letter, Mrs. Duarte made a
20
discovery request for the identity of the person responsible for making the over- payment
21 determination and requested that the person be made available for the Formal Conference. (AR 14).
22 The documents demanded in her December 17, 2015 request are necessary to narrow the SSA’s
23 contentions and to prepare Mrs. Duarte’s defenses. (AR 438 ¶ 10).
24 On January 09, 2016, Mrs. Duarte again requested records necessary for her, Mrs. Duarte, to

25
present her case, for cessation of all adverse action (e.g. continuation of her benefits), and for a
hearing to be scheduled at the Berkeley office once she, Mrs. Duarte has prepared her case. (AR
26
13-15, 20-22, 438 ¶ 12)
27
On February 05, 2016, the administration sent another letter dated February 03, 2016 to
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1 Elidia Duarte claiming to proceed to a formal conference without Ms. Duarte being present. (AR
2 24-26, 439 ¶ 13).
3 On February 9, 2016, Mrs. Duarte objected to the administration’s 02/03/16 election to

4 foreclose the formal conference (AR 24-26; 439 ¶ 14).

5
On February 12, 2016 the administration improperly denied Mrs. Duarte’s appeals, after
avoiding the procedures for due process and denying a hearing. (AR 29, 438 ¶15).
6
On March 11, 2016 Elidia Duarte filed 2 appeals one of which is for the “Important
7
Information” incorrectly dated March 4, 2016 (received on 03/03/16) purporting to collect by
8
reducing her SSA benefits. However, the subsequent document “Request for hearing by
9
administrative law judge,” makes no reference to that appeal and that collection activity must cease
10
pending appeal. (AR 31-37).
11 On March 22, 2016, Mrs. Duarte objected to the 03/14/16 “Request for Hearing by
12 Administration Law Judge Summary” misleadingly contending that a Formal Conference occurred
13 (none occurred), omitting Mrs. Duarte’s December 17, 2015 document and evidentiary requests,
14 incorrectly framing the issues, erroneously claiming that Mrs. Duarte does not have an advocate,

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and erroneously claiming that Mrs. Duarte does not have evidence. (AR 49-51, 438 ¶16a).
On April 19, 2016, the Berkeley SSA office manager, Mr. Lee, contacted José Duarte and
16
demanded to speak with Mrs. Duarte on the phone to obtain authorization to speak with Mrs.
17
Duarte’s advocate. (AR 39-40, 432 ¶17). That same day, Mr. Lee’s subordinate, Villalpando,
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angrily refused Mrs. Duarte authorization demanding for the first time that Mrs. Duarte complete a
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form for representation. Id. Villalpando then angrily proceeded to try to question Mrs. Duarte
20
without the assistance of an advocate. (AR 39-40). This personal attack caused Mrs. Duarte grief
21 and distress. (AR 432 ¶17).
22 On April 19, 2016, Mrs. Duarte submitted another notice of representation as Villalpando
23 demanded. (AR 42).
24 On May 14, 2016 onwards, Mrs. Duarte complained to Congressperson Barbara Lee

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regarding the SSA’s failure to provide a formal conference, respond to discovery, need for an
interpreter, right to an advocate, and the Administrative Law Judge’s (“ALJ”) irregular handling of
26
the case. (AR 44-45). On October 6, 2016, Mrs. Duarte is informed by José Hernandez from
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Barbara Lee’s office that the local SSA office contends that formal conferences do not exist. (AR
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1 439 ¶ 20)
2 On September 22, 2016, the SSA adjudication office mailed a “Notice of Hearing” to Mrs.
3 Duarte with an attached form HA-504 “acknowledgment of receipt” the purpose of which is to

4 inform and explain a party’s inability to attend a hearing and special needs. (AR 68).

5
On October 11, 2016 Mrs. Duarte filed a notice of representative. (AR 64-67).
On October 13, 2015 Mrs. Duarte submitted form HA-504 (AR 68) with a detailed
6
memorandum of points and authorities (AR 69), declarations, and 50 pages of exhibits A-M
7
explaining why she objected to the inadequacy of the hearing, including but not limited to the
8
SSA’s prejudicial failure to respond to discovery and its continuing refusal to permit her to have an
9
advocate. (AR 68-145, Errata AR 146-147)
10
On October 19, 2016 Mrs. Duarte submitted another appointment of representative. (AR
11 148-155). That same day, Mrs. Duarte objected to the SSA clerk to the ALJ asserting an
12 intimidatory adjudicatory role responsive to Mr. Duarte’s inquiry regarding the status of the
13 10/13/15 motion. (AR 156-165). The ALJ did not rule on the October 13, 2016 motion to compel
14 and remand.

15
On October 21, 2016, Mr. Duarte filed an Amended Objection to Hearing Notice. (AR 166-
227). On October 25, 2016 the ALJ issued an Order to Show Cause. (AR 228-230).
16
On October 28, 2016 Mrs. Duarte wrote to the Defendants regarding the inadequate and
17
evasive answer to her Freedom of Information Act (“FOIA”) requests. (AR 231-234).
18
On November 4, 2016 Mrs. Duarte filed Response to Order to Show Cause reminding the
19
ALJ of the outstanding motions and objecting to the due process violations in the administrative
20
proceedings. (AR 235-258). On December 8, 2016 the Defendants issued a Notice of Hearing. (AR
21 259 A-E).
22 On December 11, 2016, Mrs. Duarte demanded from the Defendants payment of the
23 underpaid SSA and SSI benefits. (AR 260 A-B). The next day, Mrs. Duarte filed Notice of Errata
24 Response to Order to Show Cause. (AR 261-263).

25
On December 14, 2016, the Defendants sent a letter to Mr. Duarte acknowledging his FOIA
request and referring him to the local SSA office. (AR 263 A-C). On December 23, 2016, Mrs.
26
Duarte filed an Objection to the December 8, 2016 Hearing Notice and Request for a Stay (AR 264-
27
267).
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1 On December 23, 2016, Jose Duarte contacted the OGIS office and documented its lack of
2 enforcement power over Defendants records. (AR 267 A) On December 28, 2016, Jose Duarte
3 objected to the inadequate and evasive SSI letter. (AR 267 B-H).

4 On January 2, 2017, Elidia Duarte objected to the inadequate and evasive SSI letter. (AR

5
268-276). On January 3, 2017, Mrs. Duarte filed an 8th Appointment of representative (AR 277-
281). On January 6, 2017, Elidia Duarte again demanded from the Defendants payment of the
6
underpaid SSA and SSI benefits. (AR 282-286).
7
On January 7, 2017, Mrs. Duarte received an incorrectly post-marked answer dated
8
December 26, 2016 from the administration regarding Mrs. Duarte’s discovery requests under
9
the FOIA, and Administrative Procedure Act (Exh. I to 01/17/17 Trial Brief, AR 483-486). The
10
December 26, 2016 answer from the SSA information office (AR 483-486) is evasive and non-
11 compliant with the requirements of 5 U.S.C. §552(a) and 554. Mrs. Duartes items 1-8 in her
12 discovery request, “Beginning December 2016. the full monthly Social Security benefit before
13 any deductions is $ 760.80 . . . The date of birth shown on our records is March 11. 1937 . . .”
14 Id.; 20 CFR § 416.1404.

15
On January 9, 2017, Mrs. Duarte filed an amended objection to hearing notice dated
12/08/16, again requesting that all of her issues be heard. (AR 287-318).
16
To date, no one from the SSA has meaningfully responded in writing to Mrs. Duarte’s
17
correspondence nor responded to her discovery requests. (Jose Duarte Decl. ¶ 33, Tr. Brief; AR
18
440: 24- 441: 4).
19
On January 13, 2017, Mrs. Duarte filed 3 motions in limine in anticipation of the
20
01/17/17 hearing informing the ALJ of the risk of surprise and prejudice to her case: 1 (seeking
21 declaratory relief for constitutional violations by the administration), 2 (to admit Mrs. Duarte’s
22 evidence), 3 (to exclude the administration’s evidence for failure to produce the legal and factual
23 bases for their adverse actions). (AR 398-414).
24 On January 13, 2017, defendants represented to the Northern District of California that

25 they would promptly provide administrative remedies to Mrs. Duarte. (Duarte v. Colvin, 3:16-
cv-07142-EMC Doc.# 23, pp. 2: 3-12).
26
On January 13, 2017, the court for Northern District of California ordered that all of
27
Mrs. Duarte’s underpayment and evidentiary issues be heard:
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1 Ms. Duarte also submitted a Freedom of Information Act request for documents related
to her benefits. She asserts that these documents are necessary for her to prepare for her
2
administrative case. Ms. Duarte now further alleges that the SSA failed to pay her all of
3 the benefits to which she was entitled at various times between 2001 and 2009; that the
agency has failed to provide her with a Spanish-language interpreter; and that the agency
4 has denied her right to representation; and that the agency’s various actions have violated
5
her rights under the First and Fifth Amendments to the U.S. Constitution . . . Petitioners
are, however, currently scheduled for a hearing before an ALJ on January 17, 2017. At
6 that hearing, they may raise each of the claims now pending before this court. (Duarte v.
Colvin, 3:16-cv-07142-EMC Order; AR 489: 13-20, 490: 11-13)
7

8 The January 13, 2017 Order from the court required the administration to correct the
9 procedural problems to which Mrs. Duarte objects above. Id. As discussed below, in contempt

10
of the court’s January 13, 2017 Order, Defendants did not promptly provide administrative
remedies to Mrs. Duarte, did not hear all of her issues, did not remedy the procedural
11
irregularities, and delayed the matter for another three (3) years.
12
On January 17, 2017, José Duarte was permitted to view the SSA’s participant file for
13
Elidia Duarte for the first time. (AR 567) That file did not contain any tracing of the unpaid
14
benefits paid or any of the records demanded in discovery. Id. The file was disorganized,
15
containing only a few fragments of documents and missing the majority of documents filed by
16 Elidia Duarte after the November 25, 2015 Notice of Overpayment, as documented in Mrs.
17 Duarte’s objection to the ALJ’s inventory excluding Mrs. Duarte’s appeals, pleadings, and
18 objections. (AR 242: 1- 245: 16) There are no documents which pre-date November 25, 2015
19 in that file, thereby impeaching the December 14, 2016 SSA FOIA office’s assertions that the

20
local office has documents responsive to the discovery request. (AR 263 A).
On January 17, 2017, Mrs. Duarte presented the above stated issues and objections to the
21
ALJ via Mrs. Duarte’s brief and through her advocate. (AR 415-492). At the January 17, 2017
22
hearing, the SSA did not present any evidence or law for the bases for its overpayment
23
determination. At the January 17,2 017 hearing, the ALJ indicated that she would order an
24
accounting for all unpaid benefits and if the bank statements were included with the record, she
25
would rule on the unpaid benefits.
26 However, on March 7, 2017, the ALJ did not rule on the evidentiary issues, the unpaid
27 benefits, or provide tracing of the unpaid benefits:
28 a. SSI: 2001 (495.72), 2004 ($227), 2005 ($25), 2009 ($230), 2013 ($152.40), 2015

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1 ($302.80 undisputed sum). The total SSI benefits not paid and owed to Mrs.
2 Duarte is $1735.72. 42 U.S.C. § 1383(b)(1)(A)
3 b. SSA: 2009 ($447), 2011 ($672), 2012 ($2166), 2013 ($734), 2015 ($758), 2016
4 ($758, undisputed sum). The total SSA benefits not paid and owed to Mrs.

5
Duarte is $6382.80. 42 U.S.C. § 404(a)(1)(B)(i) (Duarte Pet. ¶¶ 25-26; AR 192-
227, 292-317); “Notice of Decision,” Office of Disability Adjudication and
6
Review, AR 496-502).
7
The March 7, 2017 “Notice of Decision” purports to be favorable to Mrs. Duarte by
8
waiving the $302.80 sum from the 11/25/15 “Notice of Overpayment” (AR 1A).
9
On May 9, 2017 Elidia Duarte’s filed an appeal called a Request for Appeals Council
10
Review. (AR 507- 532).
11 On May 26, 2017 Elidia Duarte requested from the Chief, Congressional and Public Affair
12 Branch Office of Disability Adjudication and Review a transcript and recording of the ALJ hearing.
13 (AR 533-535)
14 Between March 10, 2017 and June 20, 2017 Elidia Duarte objected to the SSA admin’s

15
delay in producing the purported administrative record and transcript of the January 17, 2017
administrative hearing. (AR 536-541)
16
The June 28, 2017 Letter from Elidia Duarte to SSA demanded tracing of funds from the
17
SSA to identifiable accounts held by Elidia Duarte for the periods: SSI: 2001, 2004, 2005, 2009,
18
2013, 2015; SSA: 2009, 2011, 2012, 2013, 2015, 2016, 2017. (Duarte Pet. ¶ 80; AR 542). The SSA
19
Administration did not produce any tracing. (Duarte Pet. ¶ 81)
20
On June 28, 2017, Elidia Duarte wrote to the U.S. Treasury demanding tracing of
21 identifiable sums of money from the treasury to identifiable accounts held by Elidia Duarte for the
22 periods: SSI: 2001, 2004, 2005, 2009, 2013, 2015; SSA: 2009, 2011, 2012, 2013, 2015, 2016,
23 2017. (Duarte Pet. ¶ 82; AR 543). The U.S. Treasury did not produce any tracing. (Duarte Pet. ¶
24 82).

25
Elidia Duarte’s Petition for Mandamus Relief narrates the numerous irregularities at the
SSA Appeals Council between November 15, 2017 and January 30, 2018. (Duarte Pet. ¶¶ 84-88).
26
On August 31, 2018 the SSA Appeals Council Order remanded the matter back to the local
27
adjudication office to re-try the waiver issue. (AR 656-659)
28

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1 On October 5, 2018 Elidia Duarte withdrew without prejudice her acceptance of the ALJ’s
2 03/07/17 waiver of the $302 alleged overpayment in order to restore the status quo and end further
3 delay of resolution of her case (AR 663, AR 666).

4 Mrs. Duarte’s Petition cites to the administrative record documenting her numerous

5
objections submitted between October 5, 2018 and February 12, 2019 to the Appeals Council, ALJ,
and local SSA Field Office regarding the delays in resolution and other irregularities. (Duarte Pet.
6
¶¶ 99-104)
7
On July 16, 2019 Mrs. Duarte objected to the Appeal Council’s 06/10/19 Remand Order,
8
because the issues framed in the June 10, 2019 and November 27, 2019 Orders are incorrect. (AR
9
714-721)
10
On January 07, 2020, because the SSA delayed the matter for more than four (4) years to
11 date, Mrs. Duarte had no choice but to again file a Petition for Writ of Mandate.
12 On February 17, 2020, Mrs. Duarte objected to the ALJ’s June 20, 2019 Order indicating,
13 “The general issues are whether you were overpaid benefits within the meaning of section 1631 [42
14 U.S.C. § 1383] of the Social Security Act and, if so, whether recovery of the overpayment may be

15
waived.” (Exh. J)
On February 18, 2020 and February 19, 2020, Mrs. Duarte submitted an indexed record (AR
16
1-743) to assist the ALJ to overcome the shambles of fragmented documents in what the SSA
17
purports is Elidia Duarte’s case file. (Exh. K, L)
18
On February 19, 2020, the SSA conducted the remanded hearing. (Exh. I pp. 1). On
19
02/19/20, Mrs. Duarte objected to the fragmented record. (Exh. I,TR [00:13:28]). On 02/19/20,
20
the ALJ acknowledged the fragmented record and welcomed Mrs. Duarte’s organized record, as in
21 the SSA’s file the Appeal Council’s June 10, 2019 Remand Order could not be located:
22 José Duarte [00:13:12]
23 Do you think it's a good idea that right now together we read the remand order
24 to see what the limits are of your authority to adjudicate today?

25
ALJ [00:13:22]
26
Okay. Let me...
27

28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 13 of 29

1 José Duarte [00:13:28]

2 And may I suggest making good use of the indexed record that we submitted
3 yesterday. That way it will make it very easy for the ALJ to locate documents.

5
ALJ [00:13:44]
Well, I'm sure it would be with this administrative record [inaudible 00:13:53].
6

7
José Duarte [00:13:56]
8
It would be 656 in our page number document that we submitted.
9

10
ALJ [00:14:03]
11 Let me see if I can see the... I have the ALJ procedures here but I'm not sure
12 whether any... You're right. Generally, these cases are not very well organized.
13 To make it to this point and there's back and forth. It's kind of very difficult. Do
14 you know what the Exhibit number the Appeals Council remand order was?

15
José Duarte [00:14:25]
I could not figure it out by looking at those documents today.
16
Exh. I [00:13:12- 00:14:25]
17
On August 21, 2020 Mrs. Duarte informed the court and defendants of her frail health and
18
need to expedite her case. ( E. Duarte Motion for Trial Preference Doc. #18)
19
On August 25, 2020, Elidia Duarte caused to be lodged with this court the administrative
20
record (AR 1-743) from the SSA matter including declaration and index. (Document #s 20, 20-1,
21 20-2, 20-3).
22 To date more than five (5) year after Mrs. Duarte’s December 4, 2015 appeal, the SSA
23 Administration has not resolved Mrs. Duarte’s case, not paid her continuing SSI benefits pending
24 appeal, and not paid her the unpaid benefits. (Duarte Pet. ¶¶ 25, 26, AR 2-9, 192-227, 292-317).

25
ARGUMENT
28 U.S.C. §1361 provides an aggrieved Plaintiff relief “in the nature of mandamus” more
26
broadly than the APA for official acts or omissions in violation of the U.S. Constitution, acts in
27
excess of jurisdiction, irrespective of whether a statute recognizes an official duty to act, Congress
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 14 of 29

1 vests unlimited discretion in an agency, or a statute precludes judicial review. This court should
2 grant mandamus relief because respondents violated Petitioners’ right to due process post- Mrs.
3 Duarte’s 12/04/15 appeal and separately exceeded their jurisdiction by failing to properly pay Mrs.

4 Duarte’s unpaid SSA and SSI benefits from 2001-2016.

5
Alternatively, the Administrative Procedures Act (“APA”) provides a basis for relief where
the government has acted arbitrarily, acted unconstitutionally or unlawfully, unreasonably delayed
6
action, or fails to act. 5 U.S.C. §555 (b) and 5 U.S.C. §706 (l).
7
The Privacy Act provides broadly for any relief deemed appropriate to enable a person
8
access to their own records and correction of erroneous entries in their file. 5 U.S.C. §552a(g)(1)
9
and (g)(2).
10
This court should grant equitable relief because Mrs. Duarte has 1) a clear right to the relief
11 requested; 2) defendants have a clear duty to perform the act in question; and 3) no other adequate
12 remedy is available. Iddir v. INS, 301 F.3d 492, 499 (7th Cir. 2002).
13 I. THE RELEVANT STANDARDS FOR A MOTION TO DISMISS
14
A. The FRCP 12(b)(1) standard: facial attack, factual attack, and conversion into
15
a motion for summary judgment.
16
A court deciding a motion under Rule 12(b)(1) must distinguish between a "facial attack"' and a
17
"factual attack." Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). A
18 facial attack concerns a failure to allege sufficient facts to support subject matter jurisdiction,
19 whereas a factual attack concerns the veracity of the pled facts supporting subject matter
20 jurisdiction. Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018). In a facial attack, the Court
21 merely needs to look and see if the plaintiffs have sufficiently alleged a basis for subject matter

22
jurisdiction, and accepts all factual allegations in the pleadings as true and views them in the light
most favorable to the nonmoving party. Branson Label, 793 F.3d at 914. In a factual attack, subject
23
matter jurisdiction is challenged in fact, irrespective of the pleadings, and matters outside the
24
pleadings are considered. Id. at 914-15. As indicated in defendants’ Savage case, when a complaint
25
is “considered by the district court under a Rule 12(b)(1) motion to dismiss, [the court assumes] the
26
material facts alleged in the complaint are true. Savage v. Glendale Union High School, 343 F.3d
27
1036, 1039 Fn.1 (9th Cir. 2003).
28 The cases cited by defendants do not stand for the proposition represented by them. White v.

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 15 of 29

1 Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)( With a factual Rule 12(b)(1) attack, however, a court
2 may look beyond the complaint to matters of public record without having to convert the motion
3 into one for summary judgment). In White v. Lee, the court examined public documents published

4 by HUD, “(1) a memorandum issued by . . . Assistant Secretary for FHEO, dated April 3, 1995, and

5
titled ‘Substantive and Procedural Limitations on Filing and Investigating Fair Housing Act
Complaints . . .’ ; (2) a press release . . . dated September 2, 1994, announcing HUD's distribution
6
to employees of "specific guidelines on speech and activities protected by the First Amendment";
7
and (3) a field handbook for FHEO staff dated September 1995 incorporating the substance of the
8
Achtenberg memorandum.” Id.
9
Unlike White v. Lee, in Mrs. Duarte’s case defendants in order to make a factual attack included
10
private records with-the Anderson, Mahoney, and Mosely declarations including some pleadings
11 from Mrs. Duarte’s Request for Appeals Council Review, some document requests, and
12 unauthenticated documents created in anticipation of litigation purportedly contained in her file.
13 (Document #s 26-1, 26-2, 26-3. The documents contained in Mrs. Duarte’s SSA file are private not
14 public records as they are protected by the Privacy Act. 5 U.S.C. § 552a(b); SSA POMS GN

15
03301.020 Privacy Act (“It [The Privacy Act] gives agencies the responsibility of ensuring that
individuals' rights to privacy are protected.”). Therefore, if this court relies upon the declarations
16
and documents attached to those declarations, the court must treat defendants’ motion to dismiss as
17
a motion for summary judgment.
18

19
i. Defendants’ authorities support this court’s jurisdiction pursuant to the
20
collateral issues doctrine.
21
Defendants’ Kildare case undermines their premise that a federal court can never have subject
22
matter jurisdiction over any matter arising under the Social Security Act or the U.S. Constitution.
23 Kildare’s treatment of the collateral issues doctrine supports this court’s jurisdiction in Mrs.
24 Duarte’s case, “Following City of New York,476 U.S. 467 . . . we adopted a three-part test for
25 determining whether a particular case merits judicial waiver of § 405(g)'s exhaustion requirement.”
26 Id. Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003) citing Johnson v. Shalala, 2 F.3d 918,

27 921 (9th Cir. 1993). "The claim must be . . . collateral to a substantive claim of entitlement
(collaterality) . . . ” Id. Kildare v. Saenz, at F.3d 1082. Indeed, as discussed in Section II of this
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 16 of 29

1 brief, Mrs. Duarte’s complaint satisfied all of the factors for a collateral issues determination of
2 jurisdiction. Now, we turn to the FRCP 12(b)(6) standard.
3

4 B. THE FRCP 12(b)(6) standard

5 To survive an FRCP 12(b)(6) motion to dismiss, a complaint must set forth a short and plain
6 statement of the claim showing that the pleader is entitled to relief. FRCP 8(a)(2). This standard

7
does not require detailed factual allegations, but it demands more than an unadorned accusation.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For the purposes of a motion to dismiss a court must
8
take all the factual allegations in the complaint as true, but is not bound to accept as true a legal
9
conclusion couched as a factual allegation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
10
A complaint must also contain sufficient factual matter, accepted as true, to state a claim for
11
relief that is plausible on its face. Iqbal, 556 U.S. at 678. A claim has facial plausibility when the
12
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
13 defendant is liable for the misconduct alleged. Id. Where the well-pleaded facts do not permit the
14 court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
15 not shown—that the pleader is entitled to relief. Id. at 679. The facts alleged must raise a reasonable
16 expectation that discovery will reveal evidence to substantiate the necessary elements of the

17
plaintiff's claim. Twombly, 550 U.S. at 554. The court must assume the truth of the plaintiff's factual
allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual
18
proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556. “We
19
accept as true all factual allegations in the operative complaint, and we construe them in the light
20
most favorable to Plaintiff as the non-moving party." ” Nayab v. Capital One Bank (U.S.), 942 F.3d
21
480, 487 (9th Cir. 2019).
22
[A] complaint should not be dismissed for failure to state a claim unless it appears beyond
23 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
24 relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Even more to the point, "[a] party does not
25 need to plead specific legal theories in the complaint, as long as the opposing party receives notice
26 as to what is at issue in the lawsuit." Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991)

27
(“Pruitt's complaint included allegations that the Army was discharging her because of her status as
a homosexual. She alleged, for example, that "the defendants do systematically remove
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 17 of 29

1 homosexuals who are similarly situated to the plaintiff from the Armed Services of the United
2 States and the United States Army on the basis of thoughts, speech and status.").
3

4 i. Mrs. Duarte’s Petition and the administrative record attached to it plead

5 facts with particularity

6 Mrs. Duarte’s Petition contains detailed factual statements, incorporated into subsequent

7
paragraphs, supported with citation to its accompanying indexed bates stamped administrative
record, “AR 1-743.” “A later pleading may refer by number to a paragraph in an earlier pleading.”
8
FRCP 10 (b). “A statement in a pleading may be adopted by reference elsewhere in the same
9
pleading or in any other pleading or motion.” FRCP 10 (c ). “A copy of a written instrument that is
10
an exhibit to a pleading is a part of the pleading for all purposes.” Id.
11
Mrs. Duarte’s complaint plead facts in detail and incorporated those detailed facts into: the
12
Bases of Statutory and Constitutional Jurisdiction (pp. 1-3:17), underpaid benefits ¶¶9-26;
13 Petitioner’s Appeals of alleged overpayment, demands for Pay of Underpaid bneefits, and
14 administrative irregularities ¶¶ 27-110; Violation of the right to petition, instruct, and association ¶¶
15 111-119; Violation of Due Process under the V Am. U.S Constit. ¶¶ 120-150; unlawful
16 withholding of records under FOIA, Privacy Act, and the Agency’s own regulations ¶¶ 131-134;

17
Violation of the APA ¶¶135-147; Respondents’ failure to comply with their own published
regulations ¶¶148-150; Statutory and Doctrinal Grounds for relief ¶¶151-157; Respondents’ abuse
18
of discretion ¶¶ 158-167; Respondents’ acts in excess of jurisdiction ¶¶ 168-173; Courts’
19
Jurisdiction- exhaustion of administrative remedies (¶¶ 174-179) and subject matter jurisdiction of
20
the court ¶¶ 180-186; Lodging of the record ¶¶ 187; Requested relief ¶¶ 188-199.
21
The defendants did not identify a single inadequate factual assertion as indicated by
22
Twombly, Iqbal, or Nayab. Respondents ignored the facts in the complaint- that defendants delayed
23 resolution of the overpayment issue for five (5) years (Pet. Writ. ¶36-37; AR 2-9), that Elidia
24 Duarte is at risk of dying prior to resolution of the overpayments case (Pet. Writ. ¶155; 08/21/20 E.
25 Duarte Motion for Trial Preference Doc. #18).
26
ii. This court should shift the burden onto defendant to prove that Mrs. Duarte
27
did not prevail on the issue of the 2001 alleged overpayments
28
This court should order the defendants to produce not multiple level hearsay declarations,

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 18 of 29

1 not unsigned documents created for the litigation, but authenticated photocopies of the alleged
2 denials of Elidia Duarte’s 2001 appeals of the alleged overpayments for 2000. (Exh. A, B, C, D, E,
3 F; AR 462-463, 471-475) Mrs. Duarte prevailed in her 2001 appeals twice and have issue

4 preclusive effect in Mrs. Duarte’s favor. (AR 465, 467-470, 476-481): Murray v. Alaska Airlines,

5
Inc., 400 F. App'x 233, 234 (9th Cir. 2010) citing Murray v. Alaska Airlines, Inc., 50 Cal.4th 860
(2010)
6
. These favorable decisions impeach the Mahoney Declaration attached to defendants’
7
motion to dismiss. Defendants overlook that Mrs. Duarte did not receive SSI benefits in January,
8
April, September, and October of 2001 not just one month as they claim. (AR 292, 297-304).
9
In Nayab, the court explained, “a plaintiff need allege only facts giving rise to a reasonable
10
inference that the defendant obtained his or her credit report in violation of § 1681b(f)(1) to meet
11 their burden of pleading.” Nayab v. Capital One Bank (U.S.), 942 F.3d at 493. “Requiring
12 otherwise would create an often insurmountable legal barrier to the protection of the interests the
13 FCRA sought to protect.” Id. Notably, this question centers around whether the plaintiff must
14 plead facts which establish the defendant’s actual purpose. Id. This question is separate from the

15
question whether Nayab has pleaded facts sufficient to meet her burden of pleading—although the
former informs the analysis of the latter. Id. “Among other considerations, allocations of burdens
16
of production and persuasion may depend on which party—plaintiff or defendant, petitioner or
17
respondent—has made the ‘affirmative allegation’ or ‘presumably has peculiar means of
18
knowledge.’ " Id. at 494.
19
Relatedly, courts have shifted the burden of "establish[ing] a negative" to the defendant
20
where holding otherwise "would impose upon the plaintiffs a difficult, if not an impossible, task" of
21 requiring them to produce evidence that a fact is not the case, though evidence to the contrary
22 "could be readily produced by the defendant." Id. The rationale is simple: when the opposite party
23 must, from the nature of the case, himself be in possession of full and plenary proof to disprove the
24 negative averment, and the other party is not in possession of such proof, then it is manifestly just

25
and reasonable that the party which is in possession of the proof should be required to adduce it; or,
upon his failure to do so, we must presume it does not exist, which of itself establishes a negative
26
Id. Similarly, "the burden of persuasion as to certain elements of a plaintiff’s claim may be shifted
27
to defendants, when such elements can fairly be characterized as affirmative defenses or
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 19 of 29

1 exemptions." Id. Indeed, "the general rule of statutory construction [is] that the burden of proving
2 justification or exemption under a special exception to the prohibitions of a statute generally rests
3 on one who claims its benefits." Id.

4 Defendants are in exclusive possession of the documents purporting to be alleged denials of

5
Mrs. Duarte’s 2001 appeals. (Exh. I Tr. [00:13:12- 00:14:25]). Mrs. Duarte repeatedly demanded
the records surrounding the 2001 Notices of Overpayment. (Exh. D, F). Thus, burden shifting is
6
proper.
7

8 iii. Conversion of an FRCP 12(b)(6) motion into a motion for summary

9 judgment.

10 When converting an FRCP 12(b)(6) motion to one for summary judgment, “all parties must
11 be given reasonable opportunity to present all material made pertinent to such a motion by Rule

12
56.” FRCP 12(b). The court may consider the full text of documents referred to in the complaint
without converting the motion to a motion for summary judgment, provided that the document is
13
central to the plaintiff’s claim and no party questions the authenticity of the document. Branch v.
14
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).The defendant’s Commissioner Saul and the SSA
15
Administration included the Mosely and Mahoney Declarations with exhibits attacking the merits of
16
Mrs. Duarte’s Petition for Writ of Mandamus. (Document # 26-2 and 26-3). Mrs. Duarte will
17
separately file objections to those declarations and documents. (Exh. G, H). Therefore, this court
18 should convert the defendants’ motion to dismiss to a motion for summary judgment and provide
19 Mrs. Duarte the opportunity to present material to confront defendants’ motion and present her own
20 motion for SMJ.
21

22 C. FRCP 12(h)(3) waiver of certain defenses is irrelevant

23 The Defendants’ reference to “(h)(3)” waiver of certain defenses in their motion to dismiss

24 is irrelevant as Mrs. Duarte is the Petitioner and not the defendant.

II. THE COURT HAS SUBJECT MATTER JURISDICTION OVER MRS. DUARTE’S
25
CASE, PURSUANT TO THE “ENTIRELY COLLATERAL” EXCEPTION
26
Mrs. Duarte’s claims in her Petition for Mandamus Relief are collateral to the overpayment
27
issues being litigated before the SSA Administration: that administrative delay and the due process
28
violation implicated in the delay, that the Administration unconstitutionally withheld SSI benefits

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 20 of 29

1 pending appeal, as for the unpaid benefits there is nothing to appeal and no remedies to exhaust,
2 and Elidia Duarte will suffer irreparable harm without a waiver and mandamus relief from this
3 Court. Any enactment granting arbitrary discretion to or any practice arbitrarily enforcing an

4 enactment to deny a fundamental right is unconstitutional. Yick Wo v. Hopkins, 118 U.S. 356, 363

5
(1886).
“In Eldridge, the Supreme Court explained that § 405(g)'s requirement that there be a final
6
decision by the Secretary after a hearing as a condition to federal jurisdiction actually consists of a
7
waivable and a nonwaivable element. " GOS Operator, LLC v. Sebelius, 843 F.Supp.2d 1218, 1229
8
(2012) (S.D. Ala. 2012). "The waivable element is the requirement that the administrative remedies
9
prescribed by the Secretary be exhausted.” Id. citing Mathews v. Eldridge, 424 U.S. at 328. The
10
nonwaivable element is the requirement that a claim for benefits shall have been presented to the
11 Secretary." Id. citing Matthews v. Eldridge, 424 U.S. at 328. Eldridge did not declare 42 U.S.C. §
12 405(g) inapplicable or recognize 28 U.S.C. § 1331 jurisdiction over the claimant's claims. GOS
13 Operator, LLC v. Sebelius, 843 F.Supp.2d at 1229. Rather than declaring an exception to the
14 channeling requirement, the Eldridge Court instead found that the § 405(g) "final decision"

15
requirement would be deemed satisfied as to a constitutional claim alleging a right to a pre-
termination hearing where: (i) "Eldridge's constitutional challenge is entirely collateral to his
16
substantive claim of entitlement"; (ii) Eldridge's constitutional claim "rests on the proposition that
17
full relief cannot be obtained at a post deprivation hearing"; and (iii) Eldridge had raised "at least a
18
colorable claim that ... an erroneous termination would damage him in a way not recompensable
19
through retroactive payments." Id. GOS Operator, LLC v. Sebelius, at 1229 citing Matthews v.
20
Eldridge, 424 U.S. at 330-31. In so doing, Eldridge hinged on "the core principle that statutorily
21 created finality requirements should, if possible, be construed so as not to cause crucial collateral
22 claims to be lost and potentially irreparable injuries to be suffered." Id. GOS Operator, LLC v.
23 Sebelius, at 1229 citing Matthews v. Eldridge, 424 U.S. at 331.
24 In Bowen v. City of New York, the Supreme Court identified three relevant factors for

25
deciding whether a court should waive an exhaustion requirement: "(1) are the claims at issue
collateral to the underlying decisions as to eligibility for entitlements; (2) would claimants be
26
irreparably harmed were the exhaustion requirement enforced against them; and (3) would
27
exhaustion of administrative remedies be futile." Day v. Shalala, 23 F.3d 1052, 1059-60 (6th Cir.
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 21 of 29

1 1994) citing Bowen v. City of New York, 456 U.S. 467, 482-86 (1986).
2 Elidia Duarte’s Petition plead and proved the presentment element for the overpayment as
3 she appealed at every stage: 12/04/15 and 12/07/15 request for a formal conference (Duarte Pet. ¶¶

4 35, 36, AR 2-9); 05/09/17 Request for Appeals Council Review. (Duarte Pet. ¶ 77, AR 507- 532).

5
Those same appeals demanded payment of continuing benefits pending appeal. (Duarte Pet. ¶ ¶36,
37, AR 2-9).
6
Elidia Duarte’s Petition plead and proved the presentment element for the unpaid benefits
7
and Steigerwald v. Comm'r of Soc. Sec., case no. 1:17-CV-1516, 6-7 (N.D. Ohio Jan. 17, 2018)
8
(“Steigerwald's attorneys' subsequent letter to SSA regarding benefits withheld because of
9
attorneys' fees satisfies the presentment requirement.). Elidia Duarte demanded, via pleadings and
10
letters to the SSA Administration Field Office (FO), ALJ, and Appeals Council, tracing and
11 payment of the unpaid benefits. (Duarte Pet. ¶¶80, 86, 94, 99, 100, 106)(AR 57:25, 167: 27- 168:
12 7, 260A, 282-286, 415-419, 415-419:9, 424: 4-25, 503, 511-512, 562:8- 563: 23, 614:10-616:20,
13 664, 667, 714).
14 While Mrs. Duarte was not required to present her substantive and due process issues to the

15
SSA, because ALJ’s have no jurisdiction over constitutional matters, Mrs. Duarte did so in each of
the above instances to the FO, ALJ, and Appeals Council. Califano v. Sanders, 430 U.S. 99, 109
16
(1977) ("Constitutional questions obviously are unsuited to resolution in administrative hearing
17
procedures and, therefore, access to the courts is essential to the decision of such questions.");
18
Buckeye Indus., Inc. v. Secretary of Labor, 587 F.2d 231, 235 (5th Cir. 1979) ("No administrative
19
tribunal of the United States has the authority to declare unconstitutional the Act which it is called
20
upon to administer.").
21 Presentment is satisfied. We now turn to the Eldridge and Bowen factors.
22
A. Factor 1: the constitutional challenges.
23
For the first factor, Mrs. Duarte’s Petition challenges the constitutionality of the
24
administrative process, as its indefinite delay threatens to deprive her of any remedy prior to her
25
death. (Duarte Pet. ¶ 165).
26
That the SSA administration has delayed resolution of the overpayment matter beyond the
27
90 day time limit is collateral for which immediate mandamus relief is available. In Title XVI SSI
28 overpayment matters, the “The administrative law judge must issue the hearing decision no later

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 22 of 29

1 than 90 days after the request for hearing is filed.” 20 C.F.R. § 416.1453; POMS SI
2 04030.040B.5.a https://secure.ssa.gov/poms.nsf/lnx/0504030040#b5a The Petition plead that, via
3 Respondents' delay, the government does not have statutory authority “to penalize [Mrs. Duarte] by

4 delaying past the point of remediation, i.e. after the second purported ALJ hearing and after

5
Petitioner’s death as she is 82 years old and the matter has been delayed for 4 years in the case of
the alleged overpayment (AR 1A) and 18 years in the case of the underpaid benefits.” Duarte Pet.
6
¶ 165.
7
Next, there is no appeal or exhaustion requirement for continuing SSI benefits pending
8
resolution of the appeal. 20 CFR § 416.1336 (b); POMS SI 02220.010 §(A)(5) (If a recipient
9
reports an event which will cause his/her payment amount to be reduced, suspended, or terminated
10
he/she has the right to request continuation of the prior payment. Such requests must be within 10
11 days from receipt of the advance notice); POMS SI 02301.310(A)(1)(Qualifying for Goldberg
12 Kelly (GK) Payment Continuation). Mrs. Duarte’s Petition pleads:
13 35. On or about 11/30/15 Mrs. Duarte received a notice of overpayment from
14 the SSA Admin. dated 11/25/15.

15
36. On 12/04/15 Mrs. Duarte visited the Berkeley SSA Admin office and filed
an appeal following an 11/25/15 SSA admin. notice alleging overpayment. She
16
asked that her SSI benefits for the disputed period and that her medical benefits
17
continue pending appeal. Mrs. Duarte also requested a formal conference.
18
37. The SSA failed to continue her benefits during the disputed period
19
pending the 12/04 and 12/07 appeals.
20
38. On 12/07/15 Mrs. Duarte and Jose Duarte returned to the Berkeley SSA admin office
21 to submit an amended appeal and to request benefit continuation.
22

23 (AR 1A, 2, 4, 5, 6).

24 Attached to the Petition are the appeals showing that on 12/04/15 and 12/07/15, Elidia

25
Duarte provided the government with its own POMS manual’s interpretation of the regulations
directing them to provide continuing SSI benefits pending appeal. (AR 5, 6, 7, 8, 9). Mrs.
26
Duarte’s Petition for Writ of Mandamus plead and proved her immediate right to a judicial order
27
directing the government to pay her the continuing benefits due to her from 11/01/15 to the present.
28

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1 The unpaid SSA and SSI benefits are vested and matured property rights subject to
2 substantive and procedural due process protection, and not subject to any requirement of exhaustion
3 of administrative remedies. Ford v. Shalala, 87 F. Supp. 2d 163, 175 (E.D.N.Y. 1999).

4 Section 1383 of the Act provides for a present right to correction of underpayments, after

5
eligibility was determined as it was for Elidia Duarte 2001-2015, “ . . . with respect to payment to a
person of less than the correct amount, the Commissioner of Social Security shall make payment
6
of the balance of the amount due such underpaid person . . .”. 42 U.S.C. §1383(b)(1)(A); C.F. 42
7
U.S.C. §404(a)(1)(B)(i)(same). Act. When a recipient is not paid all that is due him or her under
8
the Act, the missed payments are termed an underpayment. Lugo v. Schweiker, 599 F. Supp. 948,
9
949 (E.D. Pa. 1984).
10
Defendants’ regulation only provide for noticed hearings for disputes arising from
11 calculation of the sum of the award of benefits. 20 C.F.R. § 404.902 (c ), (d) (The amount of your
12 benefit and recomputation); 20 C.F.R § 416.1402 (n)(calculation of the amount of change in your
13 federally administered State supplementary payment amount). Sections 404.902 and 416.1402 do
14 not apply to Mrs. Duarte’s unpaid benefits, because the regulations limit their procedures for denial

15
of applications for benefits and challenges to the computation sum of the benefit but not to the
agency’s failure to make the payments at all. SSR 72-63c.
16
https://www.ssa.gov/OP_Home/rulings/di/04/SSR72-63-di-04.html
17
In 1996, the Administration determined Mrs. Duarte to be totally and permanently disabled
18
and awarded SSA Disability benefits. (AR 736). On 05/30/96, the Administration determined Mrs.
19
Duarte to be eligible for and awarded Mrs. Duarte SSI benefits. (AR 448, 467-470). The SSA and
20
SSI awards are final determinations, which the Administration did not appeal.
21 The Petition pleads:
22

23 129. Respondents intentionally and with deliberate indifference failed to act

24 upon Mr. Duarte's express requests (attaching and citing the relevant laws) for

25 payment of the underpaid benefits, intentionally violated their own rules, delayed
needlessly, and acted contrary to Petitioner's right to property.
26
130. Therefore, Respondents acted in bad faith and violated the Petitioner' right
27
to procedural and substantive due process.
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 24 of 29

2 The administrative record attached to the Petition includes the worksheet showing the months and
3 years of unpaid benefits, the bank statements, the demands for payment made to the SSA Field

4 Offices, and the pleadings submitted to the ALJ’s and Appeals Council demanding payment of the

5
unpaid benefits. (Duarte Pet. ¶¶9-26). Each of the paragraphs in Mrs. Duarte’s Petition cites to
the documents in the administrative record supporting the factual statements. Id. For example,
6
Mrs. Duarte’s Petition pleads:
7
24. However, the administration did not correct the underpayment of SSI
8
benefits for 2001. Between 01/01/01 and 12/07/15, Mrs. Duarte was not aware
9
that she had been underpaid her SSA and SSI benefits. (Elidia Duarte decl. ¶ 1
10
M, AR 430: 21-23).
11 25. The administration failed to properly pay and is owing benefits to Mrs.
12 Duarte as follows (Exh. D, E to 10/21/16 Amended Objection to Hearing Notice,
13 AR 184-227, and Exh. A, B to 01/09/17 Amended Objection to Hearing Notice,
14 AR 291-315):

15
a. SSI: 2001 (495.72), 2004 ($227), 2005 ($25), 2009 ($230), 2013
($152.40), 2015 ($302.80 undisputed sum). The total SSI benefits not
16
paid and owed to Mrs. Duarte is $1735.72. 42 U.S.C. §1383(b)(1)(A)
17
b. SSA: 2009 ($447), 2011 ($672), 2012 ($2166), 2013 ($734), 2015
18
($758), 2016 ($758, undisputed sum). The total SSA benefits not paid and
19
owed to Mrs. Duarte is $6382.80. 42 U.S.C. 404(a)(1)(B)(i)
20
(AR 192-227, 292-317) (Elidia Duarte decl. ¶ 1 A, C, AR 428: 1-20)
21 26. The above sums to date have not been paid to Mrs. Duarte. (Elidia Duarte
22 decl. ¶1 ( C)(ii); AR 428: 18-20).
23

24 Mrs. Duarte’s petition requested mandamus relief directing immediate payment of those

25
unpaid benefits, alternatively an order directing tracing of the unpaid benefits, and any
other relief that the court deems just (e.g. continuing supervision to ensure that the relief
26
is provided within 60 days). (Duarte Pet. ¶¶ 127, 162, 188, 199).
27
Mrs. Duarte has a constitutional right to representation in the administrative
28

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 25 of 29

1 matter. Goldberg v. Kelly, 397 U.S. 254 (1970). The government’s regulations admit
2 that Mrs. Duarte has a right to representation. See 24 C.F.R §§ 416.1500-1506; POMS
3 GN 03910.030 (2011) Advising Claimants Regarding Right to Representation (SSA is

4 required to inform claimants of their right to be represented, if they choose, by an

5
attorney or non-attorney at each step of the administrative review process). Therefore,
Mrs. Duarte has a constitutional right to the representative of her choice. The Petition
6
satisfied the first factor for the collateral exception.
7

9 B. Factor 2: Irreparable Harm

10 For the second factor examples of irreparability are where the plaintiff's life expectancy was
11 short, or the plaintiff faced life-threatening medical ailments. Anderson v. Sullivan, 806 F. Supp.

12
134, 138 (E.D. Tex. Sept. 10, 1992) (“Plaintiff is infected with HIV, the virus that causes AIDS; his
life expectancy is probably rather short. The need for a speedy resolution in a case such as this is
13
obvious if the plaintiff, rather than his estate, is to obtain the benefit of a favorable decision.
14
Remitting plaintiff to his administrative remedies may exhaust more than the administrative
15
remedies provided by the SSA; it may exhaust most of plaintiff's remaining life span.").
16
On August 21, 2020 Mrs. Duarte’s request for trial preference filed with this court, put the
17
court on notice of the risk of death due to Mrs. Duarte’s frail health and her limited remaining life
18 probability. (Document #18). Mrs. Duarte incorporates by reference her 08/21/20 request for trial
19 preference. Mrs. Duarte is 83, and her medical diagnoses are: suffering from cancer (in remission),
20 hypothyroidism, hypertension, extensive spinal surgery, shoulder surgery, osteoporosis, post-
21 traumatic stress disorder, and a 5/28/20 recent knee fracture due to a fall- necessitate a preferential

22
trial setting. (Exh. A and E. Duarte decl. ¶1: 26-28 attached to 08/21/20 request for preference).
On 07/30/20 Elidia Duarte’s treating physician provided expert witness testimony supporting the
23
immediate resolution of her case, “With her underlying conditions I feel her cases should be
24
addressed immediately, and placed in preferential order to be reviewed and resolved immediately.”
25
(Exh. A attached to 08/21/20 request for preference).
26
According to the SSA’s actuarial table, the SSA knows that Mrs. Duarte’s life expectancy is
27
8 years and that the probability that that she will survive to age 85 is 5%. (Exh. B, pp. 2 attached
28 to 08/21/20 request for preference). The probability that Mrs. Duarte will live to 90 years of age is

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 26 of 29

1 less than 1%. (Exh. B, pp. 2 attached to 08/21/20 request for preference).
2 The 06/14/19 and 07/08/20 deaths due to natural causes of Mrs. Duarte’s older and younger
3 brothers make the specter that Mrs. Duarte will die prior to resolution of her case palpable and the

4 need for resolution of her case urgent. (Exh. C [death certifícate Quirino Miranda], D [death

5
certifícate Rodrigo Miranda] attached to 08/21/20 request for preference).
The SSA Administration’s own actuarial data are admissions that it knows that the SSA’s
6
delay has deleterious health consequences for the beneficiaries; the federal courts are aware that the
7
Administration has used delay in resolving cases related to need based assistance to gain leverage
8
over the beneficiaries via deprivation of the necessities of life. Id. and Exh. B, pp. 2 attached to
9
08/21/20 request for preference); Ford v. Shalala, 87 F. Supp. at 177.
10
On 08/31/18 the SSA Appeals Council Order remanded the matter back to the local
11 adjudication office, i.e. after 5 years, Mrs. Duarte’s administrative case is still at the initial stage.
12 (AR 656). At this rate, it will take the SSA another 5 years to finally render some final Appeals
13 Council decision. Thus, according to all of the medical and SSA actuarial data, Mrs. Duarte will
14 not likely survive further administrative delay. Mrs. Duarte’s Petition indicates:

15
29. The Social Security Administration has a policy and practice of
immediately ceasing SSI and Medi-Cal benefits and starting collection efforts by
16
offsetting SSA benefits to gain legal leverage over the beneficiaries as vividly
17
shown in Mrs. Duarte’s case.
18

19
155. . . . Elidia Duarte is 82 years old. Respondents are delaying adjudication
20
of her claims in the hope that she may die to prior to resolution of her case and the
21 value of a recovery minimized because she has a seven (7) year life expectancy.
22

23 Mrs. Duarte’s Petition plead the risk of death posed by the SSA’s witting delay. Mrs. Duarte’s
24 Petition satisfied the second factor threat of irreparable harm factor.

25
C. Factor 3: Exhaustion of further administrative remedies is futile
26
For the third factor, upon continued delay, waiver of exhaustion of administrative remedies
27
by the court may become proper. Hinton v. Sullivan, 737 F.Supp. 232, 242 (S.D.N.Y. Mar. 28,
28 1990) (finding that where a plaintiff's "repeated requests for hearings and appeals go unheeded" and

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 27 of 29

1 the administrative process is dragged out for an exorbitant amount of time, waiver of exhaustion of
2 remedies is appropriate). In Hinton the court reacted with indignation, “We find it both ironic and
3 troubling that after over four years of ignoring plaintiff's repeated objections to the reductions for

4 his ‘reported’ in-kind support, the defendant now takes the position that he must first exhaust his

5
administrative remedies before he objects to this reduction.” Id. at 238. The Petition pleads:
Given her advanced age, 82, and the agencies delay as addressed below, Elidia
6
Duarte requests preference and priority be assigned to her case. (Pet. 5: 5-6)
7

8
165. Respondents' delay whether wittingly or unwittingly threatens to penalize
9
Petitioner by delaying past the point of remediation, i.e. after the second
10
purported ALJ hearing and after Petitioner’s death as she is 82 years old and the
11 matter has been delayed for 4 years in the case of the alleged overpayment (AR
12 1A) and 18 years in the case of the underpaid benefits.
13

14

15
In Elidia Duarte’s case like Hinton, more than five (5) years have elapsed, without resolution by the
SSA. The Petition pleads that on 12/04/15 and 12/07/15, Elidia Duarte appealed the 11/25/20
16
Notice of Overpayment. Since 2015, Elidia Duarte demanded payment of the unpaid benefits. On
17
05/09/17 filed, Eldia Duarte requested review of all of her issues to the Appeals Council. (AR 507-
18
524) Rather than adjudicate the matter, on 08/31/18 the SSA admin’s Appeals Council Order
19
remanded the matter back to the local adjudication office. The Appeals Council’s remand order
20
lacks any mention of the unpaid benefits and puts the case back at square one. (AR 656-659).
21 Mrs. Duarte’s Petition pleads, “At all relevant times, Mrs. Duarte was retired, disabled, and
22 eligible for Social Security (“SSA”) and Supplemental Security Income (“SSI”) benefits.” (Duarte
23 Pet. ¶1). “Mrs. Duarte was harmed by respondents’ acts and omissions, including financial
24 deprivation, pain, suffering, emotional anguish, and fear.” Id.

25
On 02/19/20, at the latest ALJ hearing Mrs. Duarte testified under oath as to the privations
to her health and well-being suffered due to the suspension of the SSI benefits arising from the
26
alleged overpayment and the unpaid benefits:
27
José Duarte [00:26:27]
28

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PLAINTIFF ELIDIA DUARTE’S OPPOSITION TO DEFENDANTS’ MOTION TO DIMISS

 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 28 of 29

1 Mrs. Duarte, would you please tell us about what the effects...
2 ***
3 José Duarte [00:26:36]

4 ...with the delays and the resolutions of your case have caused you?

5
***
6
Elidia Duarte [00:27:05]
7
[speaking Spanish 00:27:05-00:27:06]
8

9
Interpreter Ernest Villafranca [00:27:07]
10
Yeah, the withdrawal of the acceptance in January of 2017, your honor. The judge
11 waived the overpayment of 2015 and I accepted it. In October 5, 2018 I withdrew
12 my acceptance without prejudice to avoid any further delays on my case. Number
13 two, I am suffering for the years of the benefits that I have not received from the
14 government and I have long suffering. I need dentures which costs thousands of

15
dollars that Medicare is not covering. Many times I have been unable to buy food.
I haven't been able to attend my physical therapy sessions due to not having
16
enough money to pay for transportation. I pay the electricity with hardship. I can't
17
go to the senior center again because I don't have enough money for
18
transportation. There have been many benefits that I have not received that the
19
government is owing me which $1735.72 from SSI since 2001. The government
20
is owing me $6382.80 from payments of Social Security for the elderly since
21 2009. I'm tired of the delays in my case. The government is waiting for me to die.
22 (Exh. I)
23 The administration’s delay in resolving Mrs. Duarte’s case has caused and continues to
24 cause Mrs. Duarte privation. Id. The Petition satisfied the third and final element. Therefore, this

25
court may deem any administrative remedies exhausted. This court has subject matter jurisdiction
to hear Mrs. Duarte’s case and provide remedies.
26

27

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 Case 3:20-cv-00151-JCS Document 30 Filed 01/08/21 Page 29 of 29

1 CONCLUSION
2 Mrs. Duarte’s petition establishes this court’s jurisdiction under the collateral issues
3 doctrine. Burden shifting is proper. Because Defendants argued the merits of the case and attached

4 declarations and exhibits to make factual arguments, this court should convert defendants’ Motion

5
to dismiss to a motion for summary judgment. Thus, this Court should deny Defendants’ Motion to
dismiss.
6

8
Dated: January 7, 2021 Respectfully submitted,
9
_____________________
10
REUBEN YEROUSHALMI,
11 Attorney for Plaintiff and Petitioner,
Elidia Duarte
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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PLAINTIFF ELIDIA DUARTE’S OPPOSITION TO DEFENDANTS’ MOTION TO DIMISS