19-2653
   Dunn v. Commissioner of Social Security


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the Second Circuit,
   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
   City of New York, on the 26th day of October, two thousand twenty.

   PRESENT:
                    REENA RAGGI,
                    RICHARD J. SULLIVAN,
                    JOSEPH F. BIANCO,
                         Circuit Judges.
   _____________________________________

   NICOLE L. DUNN,

                                   Plaintiff-Appellant,

                   v.                                                   No. 19-2653

   COMMISSIONER OF SOCIAL SECURITY,

                         Defendant-Appellee.
   _____________________________________

   For Appellant:                                    PAULINE T. MUTO (Timothy W. Hoover,
                                                     on the brief), Hodgson Russ LLP,
                                                     Buffalo, NY.
For Appellee:                            JASON P. PECK, Special Assistant United
                                         States Attorney (Ellen E. Sovern, Office of
                                         the General Counsel, Social Security
                                         Administration, on the brief), for
                                         Antoinette T. Bacon, Acting United
                                         States Attorney for the Northern
                                         District of New York, Syracuse, NY.




      Appeal from the United States District Court for the Northern District of

New York (Gary L. Sharpe, Judge).

      UPON      DUE     CONSIDERATION,          IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

      Plaintiff-Appellant Nicole Dunn appeals from a judgment of the district

court dismissing her challenge to an administrative law judge’s denial of her claim

for Social Security benefits because she failed to exhaust her administrative

remedies before seeking federal judicial review. In the district court, Defendant-

Appellee Commissioner of Social Security moved to dismiss Dunn’s challenge

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the ground

that Dunn had not received a final decision from the agency. The district court

granted the motion in light of Dunn’s failure to exhaust but did not indicate

whether dismissal was pursuant to Rule 12(b)(1) or 12(b)(6). On appeal, Dunn

argues that the district court considered materials outside the pleadings – namely,

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documents from the administrative record attached via declaration to the

Commissioner’s motion – and implicitly converted the motion to dismiss into one

for summary judgment, while failing to give Dunn notice of the conversion and of

the nature and consequences of summary judgment.            We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal, to

which we refer only as necessary to explain our decision.

      We review de novo a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6). Jaghory v. New York State Dep't of Educ., 

, 329 (2d Cir. 1997).     The same standard of review applies to grants of

summary judgment.         Fischer v. Forrest, 

, 219 (2d Cir. 2020).

Moreover, we have noted in other statutory contexts that de novo review is

appropriate for dismissals based on a failure to exhaust administrative remedies,

even where the district court has not expressly articulated “whether such motion

is properly brought for failure to state a claim, lack of subject matter jurisdiction,

or on some other procedural basis.” Nichols v. Prudential Ins. Co. of Am., 

, 105 (2d Cir. 2005).

      As a preliminary matter, we construe the district court’s decision to dismiss

as falling under Rule 12(b)(6) rather than Rule 12(b)(1). This is because the failure

to obtain a final decision is a waivable – and thus non-jurisdictional – requirement

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under 42 U.S.C. § 405(g). See Smith v. Berryhill, 

, 1773–74 (2019)

(explaining that, unlike the section’s jurisdictional requirement that claims be

presented to the agency, the requirement that a claimant exhaust administrative

remedies generally prescribed by the agency is waivable); Arbaugh v. Y&H Corp.,

, 514 (2006) (noting that subject matter jurisdiction “can never be

forfeited or waived” (internal quotation marks omitted)).

      Dunn     argues   that   the   district   court   necessarily   converted   the

Commissioner’s Rule 12(b)(6) dismissal motion into a summary judgment motion

because it considered materials outside the pleadings. See Dunn’s Br. at 1, 11–12.

But a district court may consider certain materials on a motion to dismiss,

including documents attached to the pleading or incorporated by reference, which

are “deemed part of the pleading.” Roth v. Jennings, 

, 509 (2d Cir.

2007). Moreover, “reversal for lack of conversion is not required unless there is

reason to believe that . . . extrinsic evidence actually affected the district court’s

decision and thus was not at least implicitly excluded.” Amaker v. Weiner, 

, 51 (2d Cir. 1999); see also Kramer v. Time Warner Inc., 

, 773 (2d

Cir.1991) (stating that where a reference to a fact outside the pleadings was “not a

ground for the decision” it did “not run afoul of the rule that a district court must




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confine itself to the four corners of the complaint when deciding a motion to

dismiss under Rule 12(b)(6)”).

      Here, the district court did not need to rely on any materials other than

Dunn’s pleading – a one-page “Form Complaint for Appeal of a Decision by the

Commissioner of Social Security” with an attachment – to determine that she failed

to exhaust her administrative remedies.         Although the form document she

submitted contained boilerplate language indicating that she appealed from a

“final decision,” Dunn failed to attach a final decision. In fact, the only document

she did attach – a letter from the Appeals Council indicating that her claim was

still under review – supported the clear inference that Dunn had not exhausted her

remedies.   While the district court’s order made one passing reference to the

Commissioner’s declaration for the proposition that Dunn had not received a final

decision, there is little “reason to believe that [such] evidence actually affected”

the outcome. 

. After all, Dunn’s lack of exhaustion was

apparent from her own submission, and she did not appear to contest that point.

See

(explaining that this Court “strictly enforce[s] the conversion

requirement . . . where there is a legitimate possibility that the district court relied

on inappropriate material” and noting that this Court has reversed dismissal

where the district court relied on information “contained only” in extrinsic

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materials (emphasis added)). And Dunn presented no facts in her pleadings to

suggest that waiver of the exhaustion requirement was warranted. Because the

district court could properly dismiss under Rule 12(b)(6) on the face of Dunn’s

pleadings without considering the administrative record, it was not required to

convert the motion, nor did it purport to do so. Thus, the district court did not

need to provide notice of conversion or inform Dunn of the nature and

consequences of summary judgment.

      We have considered all of Dunn’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the district court’s judgment.

                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




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