Appeals - Federal - 3rd Circuit - Brief For Appellant - Kirkland 2020

Case: 20-1876 Document: 14-1 Page: 1 Date Filed: 07/13/2020
No. 20-1876
IN THE
United States Court of Appeals

for the Third Circuit
LESLIE SCHALLER,
Plaintiff-Appellant,
v.
SOCIAL SECURITY ADMINISTRATION, ET AL.,

Defendants-Appellees.
______________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 18-CV-1625
BRIEF AND APPENDIX VOL. I (PAGES 1-11)

ON BEHALF OF PLAINTIFF-APPELLANT
MICHAEL A. COMBER MICHAEL F. WILLIAMS, P.C.
S. WESLEY GORMAN SUSAN DAVIES, P.C.
REISINGER COMBER & KATHERINE EPSTEIN
MILLER, LLC PAUL QUINCY
300 Koppers Building KIRKLAND & ELLIS LLP
436 Seventh Avenue 1301 Pennsylvania Avenue NW
Pittsburgh, PA 15219 Washington, DC 20004
(412) 894-1380 (202) 389-5000
mcomber@reisingercomber.com michael.williams@kirkland.com
wgorman@reisingercomber.com susan.davies@kirkland.com
katherine.epstein@kirkland.com
paul.quincy@kirkland.com
Counsel for Plaintiff-Appellant

July 13, 2020
I. INTRODUCTION .........................................................................................1
II. STATEMENT OF THE ISSUES .................................................................3
III. STATEMENT OF JURISDICTION ...........................................................3
IV. STATEMENT OF RELATED CASES .......................................................4
V. STATEMENT OF THE CASE ....................................................................4
VI. STANDARD OF REVIEW ...........................................................................8
VII. SUMMARY OF ARGUMENT.....................................................................9
VIII. ARGUMENT................................................................................................10
A. The District Court Erred By Treating The Government’s Rule
12(b)(1) Motion As A Factual, Rather Than Facial, Challenge. ........10
B. The District Court Erred In Deciding The Government’s Rule

12(b)(1) Motion. ..................................................................................14
C. The District Court Erred In Ruling That Schaller Failed To

Present Her Claim To The SSA. .........................................................16
1. Schaller sufficiently presented her claim because the SSA

notified her that her entitlement to SSI benefits are at risk
of termination. ...........................................................................18
2. The District Court erred in introducing a new, unnecessary

requirement for presentment—a “specific date” of
termination—that conflicts with Third Circuit precedent. .......20
a. A new requirement of a “specific date” of

termination is inconsistent with existing caselaw
that requires mere notification that entitlements are
at risk of termination.......................................................20
b. A requirement of a specific termination date would

undermine the policy underlying presentment by
causing significant hardship without any
recognizable benefit. .......................................................22
i
3. The District Court erred in ruling that Schaller has any

control over the circumstances that will compel her to
move to Guam and lose benefits. ..............................................25
IX. CONCLUSION ............................................................................................26
APPENDIX VOL. I (PAGES 1-11)
COMBINED CERTIFICATIONS
CERTIFICATE OF SERVICE
ii
TABLE OF AUTHORITIES
Page(s)
Cases
U.S. ex rel. Atkinson v. Pa. Shipbuilding Co.,
473 F.3d 506 (3d Cir. 2007) ................................................................................. 8
Berardi v. Swanson Mem’l Lodge No. 48 of the Fraternal Order of

Police,
920 F.2d 198 (3d Cir. 1990) ............................................................................... 15
Bowen v. City of New York,

476 U.S. 467 (1986) ............................................................................................ 17
CNA v. United States,

535 F.3d 132 (3d Cir. 2008) .........................................................................14, 15
Constitution Party of Pa. v. Aichele,

757 F.3d 347 (3d Cir. 2014) .............................................................10, 11, 13, 14
Gould Elecs. Inc. v. United States,

220 F.3d 169 (3d Cir. 2000) ...................................................................10, 11, 13
Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd.,

836 F.3d 261 (3d Cir. 2016) .........................................................................10, 11
In re Horizon Healthcare Servs. Inc. Data Breach Litig.,

846 F.3d 625 (3d Cir. 2017) ................................................................................. 8
Kamal v. J. Crew Grp.,

918 F.3d 102 (3d Cir. 2019) ............................................................................... 11
Kaplan v. Chertoff,
481 F. Supp. 2d 370 (E.D. Pa. 2007) ...........................................................passim
Kuehner v. Schweiker,
717 F.2d 813 (3d Cir. 1983), superseded by statute and vacated,
469 U.S. 977 (1984) ......................................................................................20, 21
Liberty Alliance of the Blind v. Califano,

568 F.2d 333 (3d Cir. 1977) ............................................................................... 22
iii
Lincoln Ben. Life Co. v. AEI Life, LLC,

800 F.3d 99 (3d Cir. 2015) ................................................................................. 15
Lopez v. Heckler,
725 F.2d 1489 (9th Cir. 1984), superseded by statute and vacated,
469 U.S. 1082 (1984) ....................................................................................20, 21
Mathews v. Eldridge,
424 U.S. 319 (1976) ................................................................................16, 21, 22
Merrifield v. United States,

Civ. No. 07-987 (JBS), 2008 WL 906263 (D.N.J. Mar. 31, 2008) .................... 16
Miller v. Anckaitis,
436 F.2d 115 (3d Cir. 1970) ............................................................................... 26
Morrell v. Harris,
505 F. Supp. 1063 (E.D. Pa. 1981) .........................................................16, 23, 24
Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884 (3d Cir. 1977) .............................................................10, 11, 13, 23
Petruska v. Gannon Univ.,

462 F.3d 294 (3d Cir. 2006) ............................................................................... 10
Schaller v. U.S. Soc. Sec. Admin.,

Civil Case No. 18-00044, ECF No. 77 (D. Guam June 19, 2020) ................... 4, 8
In re Schering Plough Corp. Intron,

678 F.3d 235 (3d Cir. 2012) ............................................................................... 10
Smith v. Berryhill,
139 S. Ct. 1765 (2019) ........................................................................................ 17
Tucker v. Sebelius,
Civ. No. 01-2230 (RBK), 2010 WL 2761525 (D.N.J. July 12,
2010) .......................................................................................................17, 21, 22
Tucker v. Sec’y. of Health and Human Servs.,

588 F. App’x 110 (3rd Cir. 2014) ....................................................................... 16
Weinberger v. Salfi,
422 U.S. 749 (1975) ......................................................................................16, 23
iv
Statutes
28 U.S.C. § 1291 ........................................................................................................ 3
28 U.S.C. § 1331 ........................................................................................................ 3
42 U.S.C. § 405(g) ............................................................................................passim
Rules
Fed. R. Civ. P. 12(b)(1).....................................................................................passim
v
I. INTRODUCTION
Plaintiff-Appellant Leslie Schaller and her sister Katrina Schaller are adult
twins who suffer from myotonic dystrophy, a progressive and debilitating condition.
Both Leslie and Katrina should receive Supplemental Security Income (“SSI”)
benefits, which are means-tested to provide financial assistance to disabled
Americans just like them. Indeed, Leslie currently receives—and is dependent on—
SSI. But she has one problem: the Social Security Administration (“SSA”) recently
told her that it will eventually terminate her benefits. The reason for the inevitable
termination is its exclusion of the U.S. territory of Guam from the federal SSI
program—an exclusion held unconstitutional just last month by the federal court on
Guam.
Leslie currently receives benefits because she lives in Pennsylvania. But
Katrina, who lives with the Schaller family on Guam, does not. According to the
Social Security Act and its implementing regulations, American citizens living on
Guam are categorically unable to receive SSI, regardless of whether they otherwise
qualify for benefits. Katrina is thus ineligible for SSI under the SSA’s policies.
Leslie, too, faces the inevitable prospect of losing her SSI benefits, because her
progressive medical condition ensures that she will need to move to Guam to be
cared for by her family. In fact, Leslie would even lose her benefits if she visited
her family on Guam for more than thirty days, as she would very much like to do.
In either case, Leslie will lose access to the benefits she depends on.
In June 2019, the SSA confirmed to Leslie that, whether she visits her family
for more than 30 days or moves there permanently for her care, she will lose her
benefits. The SSA’s position is clear and consistent with the Social Security Act,
the implementing regulations, the SSA’s own website, and the position that the SSA
has taken in this and other cases. It is not, however, consistent with the Constitution.
After confirming that the SSA’s policy was unchanged and applied to her,
specifically, Leslie Schaller filed her Supplemental Complaint in the Western
District of Pennsylvania to vindicate her constitutional rights. As Schaller
explained, she will unavoidably travel to Guam for more than thirty days, and the
SSA confirmed—with no opportunity for further review—that she will therefore
lose her SSI benefits under the SSA’s policies.
The District Court, however, erroneously concluded that 42 U.S.C. § 405(g)
bars the federal courts from even confronting the serious constitutional question that
Schaller has raised. Specifically, the District Court held that, to satisfy the § 405(g)
presentment requirement and pursue her claim in federal court, Schaller must first
receive from the SSA the specific date on which her benefits will be terminated. In
doing so, the Court disregarded Schaller’s well-pleaded allegations making clear her
inexorable medical need to move to Guam where her family resides, and the
2
corresponding certainty that—though the precise date remains unknown—her
benefits will be unconstitutionally terminated. The District Court erred in
concluding that it lacked jurisdiction to consider the merits of Schaller’s
constitutional challenge.
II. STATEMENT OF THE ISSUES
1. Whether the District Court improperly characterized the Government’s
Rule 12(b)(1) motion as a factual challenge, rather than a facial
challenge.
2. Whether the District Court erred in relying exclusively on the
Government’s declaration and not permitting Schaller to present
witness testimony in deciding the Rule 12(b)(1) motion.
3. Whether the District Court erred in concluding that Schaller failed to
present a sufficiently concrete claim to the SSA in her June 2019 phone
call.
III. STATEMENT OF JURISDICTION
The District Court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C.
§ 405(g). The District Court entered its final order and judgment on February 27,
2020, and Schaller timely noticed her appeal on April 23, 2020. This Court has
jurisdiction under 28 U.S.C. § 1291.
3
IV. STATEMENT OF RELATED CASES
Plaintiff-Appellant’s twin sister, Katrina Schaller, sued the SSA in the U.S.
Federal District Court of Guam, alleging that the SSA had violated her constitutional
rights by terminating her SSI benefits based on her residency in Guam. See Schaller
v. U.S. Soc. Sec. Admin., Civil Case No. 18-00044, ECF No. 77, at 2–4 (D. Guam
June 19, 2020). The district court agreed with Katrina, “find[ing] that the
discriminatory provisions of the SSI statute and any related implementing
regulations that discriminate on the basis of status as a resident of Guam violate the
Constitution and Organic Act’s guarantees of Equal Protection.” Id. at 20.
V. STATEMENT OF THE CASE
Plaintiff-Appellant Leslie Schaller and her twin sister, Katrina Schaller, both
suffer from myotonic dystrophy, a lifelong, progressive, debilitating medical
condition. Appellant’s Appendix (“App.”) at 71. Leslie lives in Pennsylvania with
the assistance of SSI. App. 74. Katrina lives on Guam, where she does not receive
SSI and instead depends on her older sister, Kim Fegurgur, for her care. App. at 74-
75.
Leslie would like to travel to visit her family, both now, while her condition
still allows her to make a full round-trip, and later, when her condition forces her to
seek permanent care from her family. App. 95. But because of long-standing SSA
policies, she cannot leave Pennsylvania and travel to Guam for an extended period
4
of time without losing the federal benefits that provide her main source of income.
App. 94. Leslie has so far avoided traveling to Guam for an extended period, but
due to her medical condition, will eventually be required to do so. App. 95.
Schaller initiated this action on December 6, 2018 in the Western District of
Pennsylvania, asking the court to enjoin the SSA’s practice of denying SSI to U.S.
citizens residing on Guam. App. 39. In March 2019, the Government moved to
dismiss, arguing that the District Court lacked subject-matter jurisdiction. App. 54.
Schaller requested—and received—a 45-day extension to contact the SSA and
explain her plans to travel and, ultimately, move permanently to Guam. App. 68–
69.
On June 5, 2019, Schaller contacted the SSA at the phone number provided
on the SSA’s website to request SSI coverage. App. 75–76. She told the SSA
operator both that she was planning to take a trip to Guam of at least thirty days for
Thanksgiving through Christmas and that she would inevitably need to move to
Guam in order to receive medical care. Id. She informed the SSA of her planned
travel and requested continued SSI benefits during that time. Id.
The SSA operator told Schaller that she would automatically lose her SSI
benefits when she spent thirty or more days on Guam. Id. The operator also told
her that there was no way to escalate the issue or change the SSA’s determination.
5
Id. The operator even told Schaller that “there is nowhere in Guam she’d be able to
apply” if she went to Guam, lost her SSI benefits, and attempted to re-apply. Id.
Based on the SSA’s confirmation that Schaller would certainly lose her SSI
benefits if she traveled to Guam for an extended period, with no opportunity to
escalate the determination, Schaller filed a Supplemental Complaint describing her
attempts to work with the SSA and provide notice of her upcoming travel. App. 71,
74–76. Schaller reiterated her request that the District Court enjoin the Government
from denying otherwise qualified U.S. citizens from receiving SSI benefits and
declare that the SSI statute at issue unconstitutionally discriminates against Guam
residents. App. 98–99.
The Government again moved to dismiss under Rule 12(b)(1) of the Federal
Rules of Civil Procedure, characterizing its motion as a factual attack. App. 100.
The Government argued, among other things, that Schaller had not satisfied the
statutory standing requirements of 42 U.S.C. § 405(g) because she had not presented
her claim to the Commissioner of Social Security and had not exhausted her
administrative remedies. App. 108–115.
In support of its motion, the Government filed the Declaration of Raenetta L.
Ellison, an SSA official who stated she was familiar with the relevant policies and
with Schaller’s records. App. 127–29. The Declaration confirmed that “a call
relating to Ms. Schaller’s record occurred on June 5, 2019,” but noted that the SSA’s
6
records reflected no “recent payment changes” or “any notices to Ms. Schaller
regarding a future payment change.” Id. The Declaration spoke only to what was
or was not written in Schaller’s file, noting that “Ms. Schaller’s record contains no
information about developing or following up on the possibility that she would be
traveling outside the United States” and contains “no remarks regarding potential
travel outside the United States.” Id. The Government’s Declaration did not
otherwise speak to Schaller’s medical needs or to any procedures for escalating the
determination that Schaller received on June 5, 2019.
On November 26, 2019, following briefing on the Government’s motion to
dismiss, the District Court held a hearing. App. 171. At the hearing, Schaller’s
counsel explained that there was “nothing in the affidavit that was attached as an
exhibit to the United States’ motion to dismiss that directly refutes the issue,” and
that the Declaration did not create a factual dispute. App. 192. But, to the extent
that any factual dispute existed, Schaller’s counsel offered to “resolve the facts” by
presenting the attorney who had been on the phone with Schaller and the SSA as a
witness. App. 191. The District Court responded, “I don’t think we need to go there,
but I appreciate you making that offer.” App. 192.
The District Court granted the Government’s Rule 12(b)(1) motion and
dismissed the case. App. 11. The District Court construed the Government’s motion
as a factual challenge and, relying exclusively on the Government’s Declaration,
7
concluded that “Plaintiff did not provide SSA with sufficient information to rule on
a concrete claim.” App. 9. The District Court elaborated that “Plaintiff’s failure to
furnish dates for a future visit or permanent move to Guam precludes SSA not only
from starting the clock on Plaintiff’s time outside the United States, but ultimately,
from identifying the date on which Plaintiff’s SSI benefits should be suspended.”
Id. The District Court therefore found that “Plaintiff failed to ‘present’ her claim to
SSA” and dismissed the case. App. 10. Schaller timely appealed. App. 1.
On June 19, 2020, in a related case brought by Leslie Schaller’s twin sister,
Katrina, the District of Guam found that “the equal protection guarantees of the Fifth
Amendment forbid the arbitrary denial of SSI benefits to residents of Guam.”
Schaller v. U.S. Soc. Sec. Admin., Civil Case No. 18-00044, ECF No. 77, at 20 (D.
Guam June 19, 2020). The District of Guam thus enjoined the Government “from
enforcing against the Plaintiff such discriminatory provisions of the SSI statute and
any relevant implementing regulations.” Id.
VI. STANDARD OF REVIEW

This Court exercises plenary review of a district court’s dismissal for lack of
subject matter jurisdiction. See U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473
F.3d 506, 514–15 (3d Cir. 2007) (exercising “plenary review of the jurisdictional
issues” where the district court dismissed the claims following a Rule 12(b)(1)
factual challenge); In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d
8
625, 632 (3d Cir. 2017) (“review of the District Court’s dismissal of a complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) is de novo”).
VII. SUMMARY OF ARGUMENT
A. The District Court erred in construing the Government’s Rule 12(b)(1)
motion as a factual challenge, rather than a facial challenge. A factual challenge
requires a factual dispute, and here there was none. Instead, the Government offered
only supplemental facts that did not contradict Schaller’s allegations. The District
Court should have construed the Government’s motion as a facial challenge and
accepted Schaller’s allegations as true.
B. The District Court erred in relying exclusively on the Government’s
declaration in support of its Rule 12(b)(1) motion. In deciding a facial challenge, a
court must have a sufficient record on which to base its decision, and the plaintiff
must have an opportunity to contest the factual challenge. Here, the District Court
erred by relying exclusively on the Government’s declaration and not permitting
Schaller to present witness testimony.
C. The District Court erred in concluding that Schaller did not satisfy 42
U.S.C. § 405(g)’s jurisdictional requirement of presenting a claim to the SSA before
seeking judicial intervention. Schaller properly presented all relevant facts about
her SSI eligibility during her June 2019 phone call to the SSA, and the District Court
erred in creating new requirements for presentment sufficiency.
9
VIII. ARGUMENT
A. The District Court Erred By Treating The Government’s Rule

12(b)(1) Motion As A Factual, Rather Than Facial, Challenge.
The District Court should have taken the Government’s Rule 12(b)(1) motion
as a facial challenge and construed the alleged facts in Schaller’s favor. In
confronting a Rule 12(b)(1) motion, a court must first determine whether the motion
“presents a ‘facial’ attack or a ‘factual’ attack on the claim at issue, because that
distinction determines how the pleading must be reviewed.” Constitution Party of
Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014) (citing In re Schering Plough
Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). A facial challenge, “which attacks
the complaint on its face without contesting its alleged facts, is like a 12(b)(6) motion
in requiring the court to ‘consider the allegations of the complaint as true.’” Hartig
Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016) (quoting
Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). A factual
challenge, on the other hand, permits a court to “weigh and ‘consider evidence
outside the pleadings’” where the moving party has “filed any answer to the
Complaint or otherwise presented competing facts.” Constitution Party of Pa., 757
F.3d at 358 (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000) and Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 892 n.17 (3d
Cir. 1977)). “[A] 12(b)(1) factual challenge strips the plaintiff of the protections and
10
factual deference” provided on a Rule 12(b)(1) facial challenge. See Hartig Drug
Co., 836 F.3d at 268 (citations omitted).
Here, the District Court improperly treated the Government’s Rule 12(b)(1)
motion as a factual, rather than facial, challenge. The District Court’s treatment of
the Government’s motion to dismiss as a factual attack was error because there was
no factual dispute. That error was not harmless because, by disregarding Schaller’s
allegations, the District Court did not consider key facts concerning subject-matter
jurisdiction.
First, this Circuit has repeatedly held that a “factual attack requires a factual
dispute,” and here there was none. See Constitution Party of Pa., 757 F.3d at 358;
see also Mortensen, 549 F.2d at 892 (“A factual jurisdictional proceeding cannot
occur until plaintiff’s allegations have been controverted.”); Gould Elecs. Inc., 220
F.3d at 177 (only once a “defendant contests any allegations in the pleadings, by
presenting evidence” can the court “determine jurisdiction by weighing the evidence
presented by the parties”). Where defendants claim that there are insufficient facts
alleged to establish jurisdiction—but do not dispute any alleged facts—a Rule
12(b)(1) motion should be treated as a facial challenge. Kamal v. J. Crew Grp., 918
F.3d 102, 109 (3d Cir. 2019) (“The District Court properly determined [the motion
to dismiss] was a facial challenge” because the motion did not dispute facts “but
rather whether the facts as plead[ed] create standing.”). A Rule 12(b)(1) motion can
11
therefore be construed as a factual challenge only where there are disputed facts.
Here, no such dispute existed.
In fact, far from disputing the facts, the parties agreed about the basic facts
underlying Schaller’s presentment claim. Schaller alleged that one of her attorneys
called the SSA on June 5, 2019, informed the operator that Schaller “would need to
move to Guam based on an inexorable medical need,” and was told that Schaller
“would not be able to get SSI benefits in Guam” and “there was no way to escalate
the issue to get a different outcome.” App. 75–76. The Government, in its
declaration, did not dispute any aspect of Schaller’s factual description of the June
2019 call. Instead, the Government conceded that the call had taken place, adding
only that Schaller’s record did not contain “any recent payment changes,” “any
notices . . . regarding a future payment change,” any “information about developing
or following up on” Schaller’s move to Guam, or any “remarks regarding potential
travel outside the United States.” App. 128. But none of these factual statements
contradicted any of Schaller’s allegations, and, if given the chance, Schaller would
not have disputed any of them. Instead, these additional facts are simply irrelevant
to the issue before the Court: whether a claimant has “presented” a claim under
§ 405(g) when she calls the SSA, informs the Administration of an unavoidable
move to Guam, and is told that the move will certainly result in a loss of benefits
with no further opportunity to escalate the issue. The District Court therefore erred
12
in construing the Government’s motion as a factual challenge where there was no
factual dispute. See, e.g., Constitution Party of Pa., 757 F.3d at 358 (requiring a
“factual dispute”); Mortensen, 549 F.2d at 892 (requiring plaintiff’s allegations to
be “controverted”); Gould Elecs. Inc., 220 F.3d at 177 (requiring a defendant to
“contest[] any allegations in the pleadings, by presenting evidence”).
Second, the District Court’s treatment of the Government’s Rule 12(b)(1)
motion as a factual challenge was not harmless error. This Court has previously
rejected arguments that the erroneous treatment of a Rule 12(b)(1) motion as factual
rather than facial was mere “terminology and was harmless.” See Constitution Party
of Pa., 757 F.3d at 359 (reversing dismissal for lack of jurisdiction). Here, as in
Constitution Party of Pennsylvania, the District Court considered the parties’ factual
allegations and chose to credit and emphasize the Government’s, which it would not
have done had it properly treated the Government’s motion as a facial challenge.
See id. (“the District Court rejected some facts as ‘conjectural or hypothetical’ and
declared that it was ‘not persuaded’ by certain allegations . . . none of which could
have occurred if the Court had accepted the allegations in the Complaint and the
supporting declarations as true”).
If the District Court had properly characterized the Government’s motion, it
would have accepted as true Schaller’s allegations concerning the June 2019 phone
call and would have decided based only on those allegations whether Schaller had
13
adequately presented her claim such that the court had subject-matter jurisdiction.
Instead, the District Court’s mischaracterization of the Government’s motion
enabled it to side-step Schaller’s allegations and base its jurisdictional ruling instead
on facts which the Government did not raise in its declaration. App. 9. The District
Court’s error—which closed to Schaller the only remaining forum in which she
could vindicate her claims after the SSA foreclosed any further review in the June
2019 phone call—was far from harmless. This Court should, at minimum, remand
to the District Court to determine whether, on the facts as pleaded, subject-matter
jurisdiction exists.
B. The District Court Erred In Deciding The Government’s Rule

12(b)(1) Motion.
Even if the District Court correctly construed the Government’s Rule 12(b)(1)
motion as a factual challenge, rather than a facial challenge, the District Court
nonetheless erred in finding that Schaller had not satisfied the requirements of
§ 405(g). In considering a factual attack, a court must decide whether a plaintiff’s
claims “comport factually with the jurisdictional prerequisites.” Constitution Party
of Pa., 757 F.3d at 358 (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir.
2008)) (alterations omitted). But all of the District Court’s factual findings rested
on the Government’s declaration, see App. 8–9, and the District Court did not permit
Schaller to offer witness testimony, see App. 191–192, despite one of the three
14
people on the June 2019 call being present in the courtroom. The District Court did
not permit any further jurisdictional discovery or development of the record.
The District Court’s decision to rely exclusively on the Government’s
declaration, and to exclude Schaller from presenting witness testimony, constituted
reversible error. This Circuit has previously indicated that, in deciding factual
challenges, the district court must have a sufficient record on which to base its
decision and the plaintiff must have an opportunity to contest the factual challenge.
See, e.g., Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 111 (3d Cir. 2015)
(“If defendants mount a factual challenge to jurisdiction on remand, however, the
District Court must permit jurisdictional discovery . . . .”); Berardi v. Swanson
Mem’l Lodge No. 48 of the Fraternal Order of Police, 920 F.2d 198, 200–01 (3d
Cir. 1990) (reversing a Rule 12(b)(1) factual dismissal where plaintiff was not given
sufficient opportunity to respond to the theory of dismissal that the court adopted);
CNA, 535 F.3d at 146 (noting that the lower court had given the non-moving party
“ample opportunity to be heard on the jurisdictional issue”). Here, the District Court
concluded that jurisdiction had not been established because Schaller “did not
provide SSA with sufficient information to rule on a concrete claim,” particularly
because she had not “furnish[ed] dates for a future visit or permanent move to
Guam.” App. 9. The District Court further emphasized that “SSA has not sent any
notices to Plaintiff regarding a future termination of her SSI benefits.” Id. The
15
District Court erred in basing these conclusions exclusively on the Government’s
declaration, where they were supplemental—and not contradictory—facts, and
where Schaller had no opportunity to present witness testimony.
Accordingly, even if the District Court properly characterized the
Government’s Rule 12(b)(1) motion as a factual challenge, the District Court
nonetheless erred in dismissing solely on the basis of the Government’s declaration.
C. The District Court Erred In Ruling That Schaller Failed To

Present Her Claim To The SSA.
The Social Security Act provides for judicial review of a claim arising under
the Act only after the claimant has “presented” her claim to the SSA. 42 U.S.C.
§ 405(g)–(h); see also Tucker v. Sec’y. of Health and Human Servs., 588 F. App’x
110, 112 n.1 (3rd Cir. 2014). The presentment requirement ensures that the SSA has
an opportunity to make a decision on the relevant facts before a claimant seeks
judicial review. See Merrifield v. United States, Civ. No. 07-987 (JBS), 2008 WL
906263, at *14 (D.N.J. Mar. 31, 2008) (citing Mathews v. Eldridge, 424 U.S. 319,
328 (1976)).
But Congress created the presentment requirement to function as a funnel, not
a stopper. The presentment requirement allows the SSA an opportunity to collect
relevant facts, apply its expertise, and correct its own errors before judicial review.
See Morrell v. Harris, 505 F. Supp. 1063, 1066 (E.D. Pa. 1981) (quoting Weinberger
v. Salfi, 422 U.S. 749, 765 (1975)). Accordingly, “the presentment requirement has
16
been interpreted ‘liberally,’” both in and out of the Third Circuit, to allow claimants
to address the merits of their claims. See Kaplan v. Chertoff, 481 F. Supp. 2d 370,
381 (E.D. Pa. 2007) (analyzing Third Circuit precedent); accord Tucker v. Sebelius,
Civ. No. 01-2230 (RBK), 2010 WL 2761525, at *6 (D.N.J. July 12, 2010).
Furthermore, the determination of whether an applicant sufficiently presented her
claim to the SSA hinges on the specifics of her claim and her interactions with the
SSA; presentment is “intensely practical” and cannot be made based on a
“‘mechanical application’ of a set of factors.” Smith v. Berryhill, 139 S. Ct. 1765,
1774 (2019) (quoting Bowen v. City of New York, 476 U.S. 467, 484 (1986)).
Where the plaintiff is a current or former recipient of SSI, presentment is met
when the SSA tells the recipient that her “entitlement has been or is at risk of being
terminated.” Kaplan, 481 F. Supp. 2d at 381. Schaller has met this standard, and
she deserves to raise the merits of her claim without having to suffer the
unnecessary—and unconstitutional—loss of her benefits. The Government’s more
onerous interpretation of presentment, adopted by the District Court, would position
her to lose her sole source of income immediately after she loses her physical and
mental capability to maintain her independence. App. 95. Only then would she be
able to commence the years-long process of appealing that denial of benefits.
The District Court ruled that Schaller failed to satisfy presentment based on a
lack of a sufficiently “concrete claim” to the SSA because (1) she “has not, and
17
cannot, point to a specific date when her benefits would be terminated” and (2) “‘any
risk of benefits’ suspension here is within Plaintiff’s control,” not the SSA’s. App.
9–10 (comparing to Kaplan). But both of these determinations were in error and run
afoul of Third Circuit precedent. Presentment does not impose a requirement for a
specific date of termination when a current recipient has been told that the SSA will
certainly terminate her benefits, nor does the “option” of becoming a ward of the
Commonwealth create a meaningful alternative to an otherwise certain outcome.
1. Schaller sufficiently presented her claim because the SSA

notified her that her entitlement to SSI benefits are at risk of
termination.
Presentment allows the SSA to make an initial determination of whether an
individual is eligible for benefits. Where the SSA “previously established [an
individual’s] entitlement to SSI benefits,” but later notifies the claimant that those
same benefits are “at risk” of termination, the claimant has met § 405(g)’s
presentment requirement. See Kaplan, 481 F. Supp. 2d 370, 381 (E.D. Pa. 2007)
(“Plaintiffs here have met the presentment requirement. They have previously
established entitlement to SSI benefits, which entitlement has been or is at risk of
being terminated.” (emphasis added)).
This practical construction of the presentment requirement allows the SSA to
interpret the individual’s claim and stake out a position on that eligibility. It also
18
allows the claimant to begin mounting a challenge to that termination of benefits
before the government cuts off a crucial lifeline.
As the District Court noted, the SSA’s “final decision [on a claimant’s
benefits], therefore, is ‘central to the requisite grant of subject matter jurisdiction.’”
App. 6. It is hard to imagine a more final decision than the decision Schaller received
when she called the SSA—that she will lose SSI benefits in Guam, that “there is
nowhere in Guam she’d be able to apply,” and that “there was no way to escalate the
issue.” App. 75–76. Nor can there be any doubt that, once she was told her benefits
would certainly be terminated without possibility of applying for their continuance,
Schaller had been notified that her “entitlement . . . is at risk of being terminated.”
Kaplan, 481 F. Supp. 2d at 381.
Schaller presented all relevant information to the SSA in this phone call.
Through her attorney, she explained that she is a qualifying recipient of SSI—so the
SSA has already determined her eligibility for benefits—and will, with medical
certainty, spend more than thirty consecutive days in Guam. App. 75–76. This
information was sufficient for the SSA to make a final determination, and the SSA
agent confirmed to Schaller that her benefits will be terminated. Id. The SSA
operator did not require knowledge of a specific date to make this determination, nor
would the SSA’s position on her benefits change even if she had. Id. In doing so,
the SSA made a final decision after hearing all relevant information.
19
2. The District Court erred in introducing a new, unnecessary

requirement for presentment—a “specific date” of termination—
that conflicts with Third Circuit precedent.
A claimant sufficiently presents her claim to the SSA when the agency notifies
her that her benefits are “at risk” of termination. See Kaplan, 481 F. Supp. 2d at
381. No standard has ever required a “specific date” where that termination would
occur. See id. at 381 n.11 (“Even more technical approaches to the presentment
requirement [than the ‘at risk’ requirement] have been liberally applied.”). The
District Court, diverging from prior rulings, erred in concluding that Schaller failed
to satisfy the presentment requirement because “Plaintiff has not, and cannot, point
to a specific date when her benefits will be terminated.” App. 9.
a. A new requirement of a “specific date” of termination is

inconsistent with existing caselaw that requires mere
notification that entitlements are at risk of termination.
The Third Circuit has recognized that a response to the SSA’s notification of
upcoming termination is sufficient to meet presentment, and has never held that the
notification of a specific termination date is required to satisfy the presentment
requirement. See Kuehner v. Schweiker, 717 F.2d 813, 815 (3d Cir. 1983),
superseded by statute and vacated, 469 U.S. 977 (1984); Kaplan, 481 F. Supp. 2d at
381; see also Lopez v. Heckler, 725 F.2d 1489, 1504 (9th Cir. 1984), superseded by
statute and vacated, 469 U.S. 1082 (1984) (“[T]he Secretary errs when she argues
that section 405(g) requires that the claim be presented after a tentative termination
20
decision.”).1 Introduction of a “specific date” requirement would be inconsistent
with the liberally interpreted, intensely practical requirement of presentment. It is
sufficient where, as here, an SSI recipient has presented all facts relevant to her
eligibility to the SSA and the SSA tells her that she is at risk of losing her benefits.
Supreme Court precedent proves that point. In Mathews v. Eldridge, the
Supreme Court concluded a claimant satisfied presentment even though he objected
to a future termination of his benefits prior to any formal agency conclusions,
specific date of termination, or even any SSA involvement. 424 U.S. 319 (1976).
The Eldridge Court examined an SSA review process wherein “a state agency,” not
the SSA itself, “made a tentative determination that [the claimant’s] disability had
ceased [and] proposed termination of benefits.” Id. at 324. The claimant then had
an opportunity to dispute that proposed termination, before the state agency would
make any final recommendation for the federal SSA office to assess and implement.
Id. at 324, 337–38. In Eldridge, the claimant responded at this step, with a response
to a questionnaire and “a letter in response to the [state agency’s] tentative
1
The Supreme Court vacated both Kuehner and Lopez after a new law clarified
the SSA’s obligations as to the merits of the plaintiffs’ claims, unrelated to the
burden of presentment. Kaplan v. Chertoff, 481 F. Supp. 2d 370, 381 n.10 (E.D.
Pa. 2007). Kuehner’s and Lopez’s discussions of presentment continue to carry
precedential weight in this Circuit. See, e.g., id. (citing Kuehner); Tucker v.
Sebelius, Civ. No. 07-2230 (RBK); 2010 WL 2761525, at *6 (D.N.J. July 12,
2010) (citing Lopez).
21
determination.” Id. at 329; see also Liberty Alliance of the Blind v. Califano, 568
F.2d 333, 344 (3d Cir. 1977) (“[T]he plaintiff had presented his claim . . . in response
to the tentative determination that his disability had ceased.”) (interpreting
Eldridge). The Supreme Court determined that this contact satisfied § 405(g)’s
presentment requirement. Eldridge, 424 U.S. at 329.2 Given the Supreme Court’s
recognition of presentment that predated even an SSA determination of eligibility—
much less a specific date for such—the District Court’s specific date requirement is
unmoored from both the statute itself and relevant precedent.
b. A requirement of a specific termination date would

undermine the policy underlying presentment by causing
significant hardship without any recognizable benefit.
The non-waivable element of § 405(g), presentment, “is the requirement that
a claim for benefits shall have been presented to the Secretary” because “some
decision by the Secretary is clearly required by the statute.” Eldridge, 424 U.S. at
328; see Kaplan, 481 F. Supp. 2d at 381. In other words, the presentment
requirement exists to “give the agency first crack at resolving the dispute.” Tucker,
2010 WL 2761525, at *6. But the Government (and the decision below) asks for
more—that an SSI recipient receive a formal notification with a date certain for a
2
This manner of presentment was an “even more technical approach[] to the
presentment requirement” than the “at risk” approach outlined in Kaplan. See
Kaplan, 481 F. Supp. 2d at 381 n.11.
22
loss of benefits. This approach has no statutory basis; indeed, it would undermine
the equitable principles underlying the presentment requirement by making
prolonged loss of disability benefits a prerequisite to judicial review.
That hardship is irreconcilable with the purpose of § 405(g), which is to
“prevent premature interference with agency processes, so that the agency may
function efficiently and so that it may have an opportunity to correct its own errors,
to afford the parties and the courts the benefit of its experience and expertise, and to
compile a record which is adequate for judicial review.” Morrell v. Harris, 505 F.
Supp. 1063, 1066 (E.D. Pa. 1981) (quoting Weinberger v. Salfi, 422 U.S. at 765).
Each goal has been met here, and none is served by a bright-line formal notice
requirement. Where the agency has spoken with finality, imposing hardship on an
SSI recipient or applicant accomplishes nothing.
First, a “specific date” requirement does not create a better record for review.
The SSA’s policy concerning SSI on Guam is set. If Schaller moved to (or visited)
Guam, lost benefits, and re-applied for SSI, the decision would be based on the same
set of facts that were placed before the SSA here. The SSA operator demonstrated
the sufficiency of Schaller’s presentment by confirming, after the operator received
all evidence she deemed necessary, that Schaller’s benefits will be terminated. App.
75–76. No specific date would help the agency—or this Court—assess Schaller’s
SSI eligibility.
23
Second, the agency has already spoken on this issue and would not benefit
from an “opportunity to correct its own errors.” Morrell, 505 F. Supp. at 1066. The
SSA’s policy on eligibility for SSI on Guam is clear, as the SSA operator told
Schaller on the phone. And forcing Schaller to lose her benefits, reapply, and then
be denied again does not change that. “The purpose of the presentation requirement
is to obtain a decision from the agency. . . . Where the plaintiff has received an
answer, it would be an exercise in futility to require her to return to the agency
merely to repeat the question.” Morrell, 505 F. Supp. at 1068.
Third, requiring formal notification of upcoming termination would waste
agency and court resources. Such a requirement would serve only to delay this case,
and would require the SSA and the courts to re-process an already-judiciable matter.
The Government’s interpretation is thus not only in conflict with the statute’s text
and purpose, it also creates waste and inequity. Section 405(g) creates no such
formal requirement, and this Court should reject it.
§ 405(g) requires a claimant to present all relevant facts to the agency, so that
the agency can make a determination of eligibility before the claimant asks a court
to step in. It does not require that same claimant, after providing the agency all
relevant information, to receive confirmation that she will lose her benefits, sit on
that information until her medical condition deteriorates, lose her benefits exactly as
the SSA told her she would, and only then begin the years-long process of
24
litigation. Such a procedure would not only warp the purpose of the presentment
requirement and introduce a long-term bar to legally ripe proceedings, but would
also run counter to the humanitarian purpose of SSI in protecting society’s most
vulnerable members.
3. The District Court erred in ruling that Schaller has any control
over the circumstances that will compel her to move to Guam
and lose benefits.
In ruling that Schaller did not present a “concrete claim” to the SSA, the
District Court relied in part on its conclusion that “any risk of benefits’ suspension
here is within Plaintiff’s control.” App. 9–10. This mischaracterizes the facts as
pleaded in the Supplemental Complaint; Schaller will move to Guam as a matter of
medical certainty. App. 75–76. She informed the SSA of this fact during her June
2019 phone call. Id. Her family lives in Guam, where her older sister and
brother-in-law, both medical professionals, already care for her twin sister, Katrina.
App. 74–75. Schaller “will ultimately be forced to move to Guam to live
permanently among family caretakers, or she will become a ward of the
Commonwealth of Pennsylvania.” App. 95.
The District Court erred in treating this as a meaningful decision within
Schaller’s control. Plainly stated, the sole alternative to moving to Guam, life as a
public ward, is no alternative at all. And the Third Circuit has recognized as much:
something is “an actual necessity” where it is “the only practical alternative to
25
welfare.” Miller v. Anckaitis, 436 F.2d 115, 120 (3d Cir. 1970) (“One cannot ignore
the facts of present-day . . . existence.”). As such, the District Court erred in
determining that Schaller had “control” over her permanent move to live with her
family in Guam or that the possibility of life as a public ward created uncertainty in
her claim for benefits. As a matter of law, Schaller has satisfied the § 405(g)
presentment requirement and the District Court has subject-matter jurisdiction over
her constitutional claims.
IX. CONCLUSION
For the above reasons, this Court should reverse.
Dated: July 13, 2020 Respectfully submitted,
/s/ Michael F. Williams, P.C.

MICHAEL A. COMBER, #81951 MICHAEL F. WILLIAMS, P.C.
S. WESLEY GORMAN SUSAN DAVIES, P.C.
REISINGER COMBER & KATHERINE EPSTEIN
MILLER, LLC PAUL QUINCY
300 Koppers Building KIRKLAND & ELLIS LLP
436 Seventh Avenue 1301 Pennsylvania Avenue NW
Pittsburgh, PA 15219 Washington, DC 20004
Tel: (412) 894-1380 (202) 389-5000
mcomber@reisingercomber.com michael.williams@kirkland.com
wgorman@reisingercomber.com susan.davies@kirkland.com
katherine.epstein@kirkland.com
paul.quincy@kirkland.com
COUNSEL FOR PLAINTIFF-APPELLANT
26
United States District Court For the Western District of Pennsylvania

Docket Entry 043 Dated July 18, 2019 - Plaintiff’s Motion for Extension of
Time to Respond and Attachments .................................................................................... 130

Docket Entry 045 Dated September 09, 2019 - Plaintiff’s Opposition to
Defendant’s Motion to Dismiss Supplemental Complaint ................................................ 133

Docket Entry 046 Dated September 23, 2019 - Reply Brief In Support of
Defendant’s Motion to Dismiss Supplemental Complaint ................................................ 161

Docket Entry 047 Dated September 23, 2019 - Defendants’ Motion Requesting
Oral Argument and Attachments ....................................................................................... 168

Docket Entry 055 Dated January 24, 2020 - Official Transcript of Proceedings
Held on 11-26-2019 before Judge Patricia Dodge ............................................................. 171
ii
Case:
Case20-1876 Document:Document
2:18-cv-01625-PLD 14-1 Page:
58 35 Date Filed:Page
Filed 04/23/20 07/13/2020
1 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
LESLIE SCHALLER, )
)
Plaintiff, )
) Civil Action No. 2:18-CV-01625-PLD
v. )
)
SOCIAL SECURITY ADMINISTRATION )
et al., , )
)
Defendants. )
NOTICE OF APPEAL TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT
NOTICE IS HEREBY GIVEN that Plaintiff, Leslie Schaller, appeals to the United States
Court of Appeals for the Third Circuit from the Order (Dkt. 57) entered in this action on
February 27, 2020.
Dated: April 23, 2020 Respectfully submitted,
By: /s/ Michael A. Comber

Michael Comber
PA ID No. 81951
MComber@reisingercomber.com
REISINGER COMBER &
MILLER, LLC
300 Koppers Building
436 Seventh Ave.
Pittsburgh, PA 15219
Telephone: +1 412-894-1380
Facsimile: +1 412-291-2109
Michael F. Williams, P.C.,

Susan M. Davies, P.C.
Elizabeth S. Dalmut
Admitted pro hac vice
MWilliams@kirkland.com
App.001
Case:
2:18-cv-01625-PLD 14-1 Page:
Filed 04/23/20 07/13/2020
2 of 2
Susan.Davies@kirkland.com
Elizabeth.Dalmut@kirkland.com
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: +1 202 389 5000
Facsimile: +1 202 389 5200
ATTORNEYS FOR PLAINTIFF

LESLIE SCHALLER
App.002
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2:18-cv-01625-PLD 14-1 Page:
Filed 02/27/20 07/13/2020
1 of 8
App.003
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App.011
CERTIFICATE OF SERVICE
I hereby certify that, on July 13, 2020, an electronic copy of the foregoing Brief
and Appendix Vol. I and II for Plaintiff-Appellant was filed with the Clerk of
Court using the ECF system and thereby served upon all counsel appearing in this
case.
s/ Michael F. Williams, P.C.

Michael F. Williams, P.C.

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Case: 20-1876 Document: 14-1 Page: 1 Date Filed: 07/13/2020

United States Court of Appeals

SOCIAL SECURITY ADMINISTRATION, ET AL.,

BRIEF AND APPENDIX VOL. I (PAGES 1-11)

Counsel for Plaintiff-Appellant

II. STATEMENT OF THE ISSUES .................................................................3

III. STATEMENT OF JURISDICTION ...........................................................3

IV. STATEMENT OF RELATED CASES .......................................................4

V. STATEMENT OF THE CASE ....................................................................4

VI. STANDARD OF REVIEW ...........................................................................8

VII. SUMMARY OF ARGUMENT.....................................................................9

B. The District Court Erred In Deciding The Government’s Rule

C. The District Court Erred In Ruling That Schaller Failed To

1. Schaller sufficiently presented her claim because the SSA

2. The District Court erred in introducing a new, unnecessary

a. A new requirement of a “specific date” of

b. A requirement of a specific termination date would

3. The District Court erred in ruling that Schaller has any

IX. CONCLUSION ............................................................................................26

APPENDIX VOL. I (PAGES 1-11)

Berardi v. Swanson Mem’l Lodge No. 48 of the Fraternal Order of

Bowen v. City of New York,

CNA v. United States,

Constitution Party of Pa. v. Aichele,

Gould Elecs. Inc. v. United States,

Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd.,

In re Horizon Healthcare Servs. Inc. Data Breach Litig.,

Kamal v. J. Crew Grp.,

Liberty Alliance of the Blind v. Califano,

Lincoln Ben. Life Co. v. AEI Life, LLC,

Merrifield v. United States,

Mortensen v. First Fed. Sav. & Loan Ass’n,

Petruska v. Gannon Univ.,

Schaller v. U.S. Soc. Sec. Admin.,

In re Schering Plough Corp. Intron,

Tucker v. Sec’y. of Health and Human Servs.,

28 U.S.C. § 1331 ........................................................................................................ 3

42 U.S.C. § 405(g) ............................................................................................passim

benefits, which are means-tested to provide financial assistance to disabled

Leslie currently receives benefits because she lives in Pennsylvania. But

specifically, Leslie Schaller filed her Supplemental Complaint in the Western

District of Pennsylvania to vindicate her constitutional rights. As Schaller

SSA confirmed—with no opportunity for further review—that she will therefore

lose her SSI benefits under the SSA’s policies.

The District Court, however, erroneously concluded that 42 U.S.C. § 405(g)

corresponding certainty that—though the precise date remains unknown—her

benefits will be unconstitutionally terminated. The District Court erred in

concluding that it lacked jurisdiction to consider the merits of Schaller’s

II. STATEMENT OF THE ISSUES

1. Whether the District Court improperly characterized the Government’s

Rule 12(b)(1) motion as a factual challenge, rather than a facial

2. Whether the District Court erred in relying exclusively on the

Government’s declaration and not permitting Schaller to present

witness testimony in deciding the Rule 12(b)(1) motion.

3. Whether the District Court erred in concluding that Schaller failed to

III. STATEMENT OF JURISDICTION

jurisdiction under 28 U.S.C. § 1291.