United States District Court, D. New Mexico
Maureen A Sanders Brian L. Moore Sanders & Westbrook, PC
Albuquerque, New Mexico Attorneys for the Plaintiffs.
D. Tierney Acting United States Attorney Manuel Lucero
Assistant United States Attorney District of New Mexico
United States Attorney's Office Albuquerque, New Mexico
and Gregory E. White Special Assistant United States Attorney
Office of General Counsel Social Security Administration
Dallas, Texas Attorneys for the Defendants.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) the
Defendant's Motion to Dismiss Complaint, filed March 15,
2016 (Doc. 8)(“First Motion”); and (ii) the
Defendant's Motion to Dismiss Complaint Against
Administrative Law Judge Miriam Fernandez-Rice, filed April
19, 2016 (Doc. 18)(“Second
Motion”). The Court held a hearing on August 14,
2017. The primary issues are: (i) whether the Social Security
Administration (“SSA”) must provide reasonable
notice of the name of the person who will conduct a
consultative examination or, alternatively, whether it
suffices that the SSA makes that information available upon
request; and (ii) whether Administrative Law Judges
(“ALJs”) are entitled to absolute judicial
immunity when they refer attorneys who appear before them to
the SSA's Office of Disability Adjudication and Review
(“ODAR”) for investigation. The Court concludes
that the SSA needs to make the name of the person who will
conduct a consultative evaluation available only upon request
and that ALJs are entitled to absolute judicial immunity when
making referrals to ODAR for investigation. Consequently, the
Court will grant both the First Motion and the Second Motion.
works with states “to provide and maintain an effective
system for processing claims of those who apply for and who
are receiving” disability benefits. 20 C.F.R. §
404.1603. State agencies generally make initial
“determinations of disability with respect to all
persons in the State.” 20 C.F.R. § 404.1613. In
New Mexico, the Defendant New Mexico Disability Determination
Services (“NMDDS”) makes those determinations.
First Amended Complaint for Writ of Mandamus, For Damages For
Violation of Civil Rights and for Declaratory Judgment ¶
4, at 2, filed January 4, 2016 (Doc.
3)(“Complaint”). See First Motion at 2.
NMDDS must comply with SSA regulations. See 20
C.F.R. § 404.1603(a)(“The State will comply with
our regulations and other written guidelines.”). To
help it make disability determinations, NMDDS may ask someone
applying for disability benefits to have a consultative
examination, i.e., “one or more physical
examinations or tests, ” and NMDDS must give
“reasonable notice of the date, time, and place the
examination or test will be given, and the name of the person
or facility who will do it.” 20 C.F.R. § 404.1517.
An applicant may object to the person that NMDDS designates
to perform the consultative examination and, “if there
is a good reason for the objection, ” NMDDS will
designate someone else. 20 C.F.R. § 404.1519j. Defendant
Daniel Roper is the NMDDS Director. See Complaint
¶ 5, at 2.
Michael Armstrong is an attorney who represents individuals
seeking Social Security benefits, including disability
benefits. See Complaint ¶ 2, at 2. On April 29,
2014, the SSA's Office of General Counsel told Armstrong
that someone had filed an anonymous complaint against
Armstrong alleging that his objections to the consultative
evaluations that NMDDS scheduled for his clients “are
ethical misconduct, . . . cause delay in the processing of
claims, and cause a disruption of proceedings in violation of
20 C.F.R. § 404.1740.” Complaint ¶ 27, at 5.
The anonymous complaint also alleged that
“Armstrong's conduct constituted advisement to his
clients not to comply with Social Security rules and
regulation.” Complaint ¶ 28, at 6. “On July
22, 2014, the Office of General Counsel advised Plaintiff
Armstrong that his actions ‘did not appear to violate
the Rules of Conduct and Standards of Responsibility for
Representatives, ' and identified the formerly anonymous
complainant as Defendant Fernandez-Rice.” Complaint
¶ 30, at 6. ODAR employs Fernandez-Rice as an ALJ.
See Complaint ¶ 7, at 3.
Beryl Ann Griego is one of Armstrong's clients who seeks
Social Security disability benefits. See Complaint
¶ 3, at 2. She currently has a claim pending before
NMDDS for disability benefits. See Complaint ¶
39, at 7. NMDDS arranged for a consultative examination for
Griego, scheduled the examination for July 25, 2015, and
provided notice of the examination to Griego on June 16,
2015, but NMDDS did not tell Griego the name of the doctor
who would perform the examination. See Complaint
¶¶ 42-43, at 7. On July 14, 2015, Armstrong
objected to NMDDS' failure to provide the name of the
doctor who would conduct Griego's consultative
examination, because that information was required to
exercise Griego's right to object to the person
designated to perform her examination. See Complaint
¶ 44, at 7-8. Armstrong advised Griego not to attend the
July 25, 2015 examination, and she did not attend.
See Complaint ¶¶ 45-46, at 8. NMDDS then
scheduled two more consultative examinations; it scheduled
one for August 29, 2015, and it scheduled another for
November 28, 2015. Complaint ¶ 47, at 8. NMDDS did not
provide notice of who would conduct either examination,
Armstrong objected to NMDDS's failure to provide that
information, and Griego did not attend either examination.
See Complaint ¶¶ 48-50, at 8. While none
of the three consultative-examination notices listed the name
of the doctor who would conduct the examination, all three
identified the facility that would perform the examination as
“ADVANCED MEDICAL CONSULTANTS SILVERMAN SPINE &
INJURY CENTER, ” and provided its address. Notice of
Disability Examination(s) at 1, dated June 16, 2015, filed
March 15, 2016 (Doc. 8-1)(“June Notice”); Notice
of Disability Examination(s) at 1, dated August 19, 2015,
filed March 15, 2016 (Doc. 8-1)(“August Notice”);
Notice of Disability Examination(s) at 1, dated November 18,
2015, filed March 15, 2016 (Doc. 8-1)(“November
Plaintiffs petition the Court for “a writ of mandamus .
. . ordering Defendant Roper to perform his non-discretionary
duty as Director of [NMDDS] to Social Security disability
applicants with timely notice of the name” of the
person who NMDDS has selected to perform a consultative
evaluation. Complaint ¶ 56, at 9. The Plaintiffs also
seek monetary damages under both 42 U.S.C. § 1983 and
under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388
(1971)(“Bivens”). See Complaint
¶ 1, at 1.
The First Motion to Dismiss.
March 15, 2016, “Defendant, Acting Commissioner of
Social Security, standing in place of the
named-defendant[s]” NMDSS and Roper, in his official
capacity as NMDSS Director, moved to dismiss the Complaint.
First Motion at 1. The Defendants assert that the
“Plaintiffs cannot show that a writ of mandamus is
appropriate or necessary.” First Motion at 3. According
to the Defendants, mandamus relief is inappropriate, because
the “Plaintiffs did not show that any avenues of
relief, much less all, were exhausted to ascertain any
medical provider's name, ” First Motion at 10, and
because, “[h]ad either Ms. Griego or Mr. Armstrong
contacted the NMDSS, the NMDSS could easily have provided the
physician's name, ” First Motion at 12.
See First Motion at 3 (“[T]he NMDDS is fully
amenable to providing the information upon request . . .
.”). According to the Defendants, the Plaintiffs'
failure to inquire about the names of examining physicians
should bar mandamus relief, because “[o]ther courts
have refused to grant a writ of mandamus when, like in the
case at bar, the petitioner presents no evidence that other
adequate non-judicial remedies were sought before filing the
petition.” First Motion at 15-16 (citing Maddalino
v. West, 13 Vet.App. 475 (2000), and Costanza v.
West, 12 Vet.App. 133, 134 (1999)).
Plaintiffs' Response to Defendant's Motion to Dismiss
Complaint, filed April 16, 2016 (Doc. 16)(“First
Response”), the Plaintiffs argue that mandamus relief
is appropriate, because NMDSS has a nondiscretionary
“duty to provide reasonable notice of the names of
medical providers assigned to perform consultative
evaluations, ” First Response at 6, and because NMDSS
has failed to execute that duty, see First Response
at 10-14. According to the Plaintiffs, that nondiscretionary
duty stems from an SSA regulation requiring NMDSS to provide
“reasonable notice . . . of the person or facility who
will” perform a consultative examination, 20 C.F.R.
§ 404.1517, and from another SSA regulation that permits
people “to object to your being examined by a medical
source we have designated to perform a consultative
examination, ” 20 C.F.R. § 404.1519j. The
Plaintiffs also maintain that the SSA's Program Operation
Manual System (“POMS”) -- “the SSA's
administrative manual that dictates agency procedure at the
initial determination a[n]d reconsideration stages, ”
First Response at 8 n.4 -- indicates that the initial notice
should contain the name of the doctor conducting the
consultative evaluation, because POMS contains a model
appointment notice template, and “[t]hat template
contains a field for ‘Name and Address' of the
medical evaluator, ” First Response at 8.
Plaintiffs also observe that, “[i]n 2011, Plaintiff
Armstrong brought a petition for a writ of mandamus very
similar to this one, ” because the SSA “failed to
timely disclose the names of medical providers assigned to
perform consultative evaluations” for two of his
clients “therefore denying his clients of their rights
to object to those providers under § 404.1519j.”
First Response at 7 (citing Memorandum Opinion and Order,
Albers v. Social Security Administration, No. CIV
11-0092 (D.N.M. 2011)(Johnson, J.)(Doc.
8-10)(“Albers MOO”)). The Plaintiffs
emphasize that the Albers MOO concluded “that
SSA has ‘a nondiscretionary duty . . . under [20
C.F.R.] § 404.1517 to disclose the names of the
[physicians performing consultative evaluations], and by not
doing so, was in violation of its own regulation.'”
First Response at 7 (alterations and omissions made by the
Plaintiffs)(quoting Albers MOO at 5). The Plaintiffs
also note that the Defendants “have already been
ordered that compliance with their regulations requires them
to ‘provide thirty (30) days written notice . . . prior
to the date of any consultative evaluation . . . [including]
the name of the evaluating doctor.'” First Response
at 9-10 (alterations and omissions made by the
Plaintiffs)(quoting Albers MOO at 7).
Plaintiffs acknowledge that the named parties in the case at
bar are different from the parties in Albers;
neither Armstrong nor Griegos were plaintiffs in
Albers and the SSA, not the NMDSS, was the
Albers defendant. See First Response at 8.
The Plaintiffs contend, however, that “[t]he reasoning
that led Judge Johnson to his ruling in Albers
should not be discarded solely on the basis that the parties
have changed.” First Response at 8.
Defendant's Reply to Plaintiffs' Response to
Defendant's Motion to Dismiss Complaint, filed May, 3,
2016 (Doc. 21)(“First Reply”), the Defendants
argue that the Albers MOO is limited to the two
Albers plaintiffs, because the Albers MOO determined
that those plaintiffs had no standing to seek
“prospective injunctive relief which would affect all
notices that DDS sends out to all social security
claimants.” Albers MOO at 6. See
Reply at 5 (quoting Albers MOO at 6). The Defendants
also argue the “Plaintiffs' current attempt to make
30 days as the new court-mandated standard based on
Albers is without foundation, ” Reply at 5,
because the Albers MOO's specific notice
requirements come from a “mutually-agreed draft
Order” that the parties submitted and not from SSA
regulations, Albers MOO at 7. See Reply at
5. Finally, the Defendants respond to the Plaintiffs'
argument based on the POMS model notice template by noting
that “[t]he Agency's POMS are merely internal
guidelines and operating instructions and are not regulatory
requirements.” Reply at 6 (citing Washington
Dep't of Soc. and Health Servs. v. Keffeler, 537
U.S. 371, 385 (2003)).
The Second Motion to Dismiss.
April 19, 2016, “Defendant, Acting Commissioner of
Social Security, standing in place of the named-defendant
Miriam Fernandez-Rice, ” moved the Court to dismiss the
Plaintiffs' claims against Fernandez-Rice. Second Motion
at 1. The Defendants argue that the Court should dismiss
those claims, because Fernandez-Rice “performed her
actions as an administrative judge, and administrative judges
are protected by absolute immunity.” Second Motion at
2. The Defendants also argue that, even if Fernandez-Rice is
not entitled to absolute immunity, at least qualified
immunity protects her and requires the Court to dismiss the
claims against her. See Second Motion at 2.
Plaintiff Armstrong's Response to Defendant Rice's
Motion to Dismiss Complaint, filed May 27, 2016 (Doc.
25)(“Second Response”), Armstrong argues that, by
relying on attached exhibits in support of its factual
allegations, the Second Motion “has presented
‘matters outside the pleadings'” such that,
under rule 12(d) of the Federal Rules of Civil Procedure, the
Second Motion should be converted to a motion for summary
judgment. See Second Response at 3 (quoting
Fed.R.Civ.P. Rule 12(d)). Armstrong also argues that
Fernandez-Rice is not entitled to absolute immunity as a
judge, because “an ALJ referring a suspected violation
of the SSA rules pertaining to a representative's conduct
acts more akin to a ‘complaining witness, ' than
the prosecutor or adjudicator of the suspected
violation.” Second Response at 9. He further argues
that Fernandez-Rice is not entitled to absolute immunity as a
federal official exercising discretion -- vis-à-vis
Armstrong's federal claims -- because such immunity
applies only to state-tort liability such that
“‘only a qualified immunity is available to
federal officials who have violated constitutional or
federal statutory rights.'” Second Response at
8 (quoting Strothman v. Gefreh, 739 F.2d 515, 520
(10th Cir. 1984)).
immunity does not protect Fernandez-Rice, according to
Armstrong, because she violated Armstrong's clearly
established constitutional rights. See Second
Response at 10. Armstrong says that, by the time
Fernandez-Rice reported him to ODAR, the Albers MOO
clearly established that “required notices of
consultative evaluations to SSA applicants were required to
include the name of the individual medical provider who would
be conducting the evaluation.” Second Response at 12.
Armstrong argues that, consequently, clearly established law
indicated that Armstrong's right to “petition the
Government for a redress of grievances” protected his
right to object to inadequate notices. U.S. Const. amend. I.
See Second Response at 11.
brief reply, the Defendants reiterate that Fernandez-Rice is
entitle to absolute immunity as an ALJ, because she
“performed her actions in the scope of her
employment.” Defendant's Reply to Plaintiffs'
Response to Defendant's Motion to Dismiss Complaint
Against Administrative Law Judge Miriam Fernandez-Rice at 4,
filed June 14, 2016 (Doc. 26)(“Second Reply”).
The Defendants again assert that, even if Fernandez-Rice is
not entitled to absolute immunity, qualified immunity
protects her. See Second Reply at 4.
Court held a hearing on August 14, 2017. See
Transcript of Hearing (taken August 14,
2017)(“Tr.”). The Defendants, speaking first,
acknowledged that the Albers MOO addressed the
Plaintiffs' argument that consultative-examination
notices must contain the name of the doctor who will perform
the examination. See Tr. at 7:6-13 (Lucero). The
Defendants noted, however, that “[J]udge Johnson
limited that case to that client and for that determination
of disability only.” Tr. at 8:2-4 (Lucero). The
Mr. Armstrong continues to argue the Albers decision as if
that were the law of the case, that that was what mandates
the way the Social Security Administration will respond to
notices and that it requires New Mexico Disability
Determination Services to act in accordance with that
opinion. It's not. It's pretty clear that [J]udge
Johnson only wanted and only decided that case for that case
only. He didn't want and didn't feel that it was
appropriate for him to decide on prospective remedies down
Defendants then turned to the Second Motion and argued that
absolute immunity protects Fernandez-Rice, because absolute
immunity “has also been found by the Tenth Circuit to
fall to ALJs, just like it falls to magistrate judges,
Bankruptcy judges. All federal judges have absolute immunity.
If they are doing their job and they are rendering decisions,
then they have absolute immunity from suit.” Tr. at
14:3-8 (Lucero). According to the Defendants, Fernandez-Rice
was acting as a judge when she referred Armstrong to ODAR for
investigation, because “[s]he saw something in her
official duty while sitting on a case that required some kind
of investigation. . . . So she was acting within the scope of
her employment as a judge to refer Mr. Armstrong for an
investigation.” Tr. at 14:16-23 (Lucero).
Plaintiffs then began by noting that, while the briefing on
the First Motion only addresses whether mandamus relief would
be appropriate, the Complaint requests not just mandamus
relief but also declaratory and injunctive relief.
See Tr. at 19:19-20:1 (Sanders). Consequently, the
Plaintiffs indicate that deciding the mandamus issue in the
Defendants' favor would not “dispose of this case
entirely.” Tr. at 20:1-4 (Sanders). The Plaintiffs then
articulated their view that “[t]he primary issue in
this case comes back to the Albers decision, which . . . is
dispositive of at least the declaratory judgment and mandamus
and injunctive relief requests that we have made.” Tr.
at 20:5-9 (Sanders). The Plaintiffs then indicated that they
sought a declaratory judgment to “expand the ruling in
Albers to apply to all those seeking benefits under Social
Security disability, ” because the reasoning of the
Albers MOO applied beyond the facts of that
particular case. Tr. at 20:14-19 (Sanders).
statement prompted the Court to inquire whether the
Plaintiffs viewed the Albers MOO as persuasive or
binding authority. See Tr. at 20:20-25 (Court). The
Plaintiffs replied that “there is an argument that . .
. defendants are collaterally estopped from making arguments
regarding what is sufficient notice under these
regulations.” Tr. at 21:2-10 (Moore). The Plaintiffs
maintained, however, that, even if the Albers MOO is
not binding authority, its reasoning “is at least
highly persuasive.” Tr. at 21:10-11 (Moore).
Plaintiffs later turned to the absolute-immunity issue.
See Tr. at 44:2-6 (Moore). They argued that, while
ALJs are entitled to absolute immunity, that absolute
immunity applies only to their judicial acts. See
Tr. at 44:6-45:4 (Moore). It follows, according to the
Plaintiffs, that Fernandez-Rice is not entitled to absolute
immunity, because “she merely referred the case to the
prosecuting agency” and “had [not] been assigned
to oversee the hearing about whether Mr. Armstrong had
violated SSA's code of ethics.” Tr. at 45:9-12
(Moore). The Court then challenged the Plaintiffs by
inquiring whether, under their understanding of judicial
immunity, a Magistrate Judge's referrals could subject
the Magistrate Judge to suit. See Tr. at
16-21(Court). The Plaintiffs replied that the key distinction
between ALJs and Magistrate Judges is that Magistrate Judges
“have some power to sanction attorneys for improper
conduct. They have that power in and of themselves, or at
least to make those recommendations, ” while ALJs do
not. Tr. at 45:22-46:4(Moore). According to the Plaintiffs, a
Magistrate Judge referral is an extension of the Magistrate
Judge's judicial power, whereas ALJs do not have a
judicial power to discipline attorneys. See Tr. at
qualified immunity, the Plaintiffs began to argue that
Fernandez-Rice referred Armstrong to ODAR for exercising a
right that the Albers MOO clearly established, but
the Court interrupted and suggested that only the United
States Court of Appeals for the Tenth Circuit or the Supreme
Court of the United States can make clearly established law.
See Tr. at 48:4-16 (Moore, Court). The Plaintiffs
contended that district court opinions could clearly
establish law if “no reasonable officer in the position
of the defendant would [think] that the conduct is
constitutional.” Tr. at 48:17-21 (Moore).
brief recess, the Court indicated that it wanted to revisit
the Plaintiffs' contention that, even if they failed on
the mandamus issue, they might still have a claim for
declaratory or injunctive relief. See Tr. at
55:19-56:1 (Court). The Plaintiffs said that they might have
a claim for declaratory or injunctive relief if the Court
concludes that the Defendants have a duty to provide notice
of the names of the doctors who will conduct consultative
examination even if the Court concludes that mandamus relief
is not appropriate, because it concludes that the duty is
discretionary and not ministerial. See Tr. at
56:2-17 (Moore). The Plaintiffs conceded, however, that,
“[i]f the court . . . found that [the] Albers decision
was mistaken, and that the regulations do not require . . .
the timely notice of the names of the providers, then that
would be dispositive of the declaratory judgment, and the
injunctive relief.” Tr. at 56:17-23 (Moore).
rebuttal, the Defendants attacked the idea that the
Albers MOO has collateral estoppel effect, because
“Judge Johnson was pretty darned clear that this only
-- that case only applied to Albers.” Tr. at 68:18-21
(Lucero). The Court suggested that there might be a doctrine
that “makes it very difficult to estop the federal
government, ” Tr. at 70:8-9 (Court), and the
Defendants' counsel agreed that, “when I started
working for the government they said, the United States
can't be collaterally estopped, ” Tr. at 70:16-18
(Lucero). The Court later indicated that a Supreme Court case
held that non-mutual, offensive collateral estoppel does not
apply to the federal government, and the Court indicated that
it would likely treat the Albers MOO as persuasive
authority. See Tr. at 82:17-84:2 (Court)(citing
United States v. Mendoza, 464 U.S. 154 (1984)).
REGARDING MOTIONS TO DISMISS UNDER RULE
12(b)(6) authorizes a court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a
Rule 12(b)(6) motion tests the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994)(Brorby, J.). The
complaint's sufficiency is a question of law, and, when
considering a rule 12(b)(6) motion, a court must accept as
true all well-pled factual allegations in the complaint, view
those allegations in the light most favorable to the
non-moving party, and draw all reasonable inferences in the
plaintiff's favor. See Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322
(2007)(“[O]nly if a reasonable person could not draw .
. . an inference [of plausibility] from the alleged facts
would the defendant prevail on a motion to dismiss.”);
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)(Briscoe, J.)(“[F]or purposes of resolving a
Rule 12(b)(6) motion, we accept as true all well-pled factual
allegations in a complaint and view these allegations in the
light most favorable to the plaintiff.”)(citing
Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
complaint need not set forth detailed factual allegations,
yet a “pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of
action” is insufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. at 678. “Factual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp v. Twombly, 550 U.S. at
555 (citation omitted).
survive a motion to dismiss, a plaintiff's complaint must
allege facts that, if assumed to be true, state a claim to
relief that is plausible on its face. See Bell Atl. Corp.
v. Twombly, 550 U.S. at 570; Mink v. Knox, 613
F.3d 995, 1000 (10th Cir. 2010)(Seymour, J.). “A claim
has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus,
the mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is
insufficient; the complainant must give the court reason to
believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.” Ridge
at Red Hawk, LLC v. Schneider, 493 F.3d at 1177
(emphasis omitted). The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to
the scope of the allegations in a complaint: if they are so
general that they encompass a wide swath of conduct, much of
it innocent, then the plaintiffs “have not nudged their
claims across the line from conceivable to plausible.”
The allegations must be enough that, if assumed to be true,
the plaintiff plausibly (not just speculatively) has a claim
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
at 570)(citations omitted).
affirmative defenses must generally be pled in the
defendant's answer, not argued on a motion to dismiss,
see Fed.R.Civ.P. 8(c), there are two exceptions: (i)
cases where the defendant asserts an immunity defense,
see Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39,
1141 (D.N.M. 2012)(Browning, J.)(citing Pearson v.
Callahan, 555 U.S. 223 (2009), and Robbins v.
Oklahoma, 519 F.3d 1242 (10th Cir. 2008)); and (ii)
cases where the facts establishing an affirmative defense are
apparent on the complaint's face, see Miller v. Shell
Oil Co., 345 F.2d 891, 893 (10th Cir.
1965)(Hill, J.)(“Under Rule 12(b), a defendant may
raise an affirmative defense by a motion to dismiss for the
failure to state a claim. If the defense appears plainly on
the face of the complaint itself, the motion may be disposed
of under this rule.”).
on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). Without converting a motion to
dismiss into a motion for summary judgment, a court can
consider a document that is “referred to in the
complaint and is central to the plaintiff's claim”
even though the plaintiff “does not incorporate by
reference or attach a document to its complaint” if the
defendant “submit[s] an indisputably authentic copy to
the court to be considered on a motion to dismiss.”
GFF Corp. v. Associated Wholesale Grocers, Inc., 130
F.3d 1381, 1384 (10th Cir. 1997)(Kelly, J.). See Genesee
Cty. Emps.' Retirement Sys. v. Thornburg Mortg. Secs.
Trust 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M.