Rothman v. SHHS ( 1994 )

USCA1 Opinion

          December 8, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT





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        No. 94-1484

                                   YURI M. ROTHMAN,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                 ____________________

                                        Before

                        Cyr, Boudin and Stahl, Circuit Judges.
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            Yuri M. Rothman on brief pro se.
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            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,
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        Special Assistant  United States Attorney,  Donna McCarthy,  Assistant
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        Regional  Counsel,  United  States  Department  of  Health  and  Human
        Services,  Randolph  W.  Gaines,   Acting  Chief  Counsel  for  Social
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        Security,  John  M.   Sacchetti,  Chief,   Retirement  Survivors   and
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        Supplemental  Assistance  Litigation  Branch,  and  Mark  S.  Ledford,
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        Attorney, United States  Department of Health  and Human Services,  on
        brief for appellee.


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                 Per Curiam.   Claimant  Yuri Rothman seeks  to challenge
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            various    administrative   determinations    regarding   his

            entitlement to  Social Security disability  benefits.   Given

            the cryptic  nature of  his  submissions, both  below and  on

            appeal,  the  precise issues  being  raised  are not  readily

            decipherable.   To  the  extent claimant  is challenging  the

            finding,  reached by the Administrative  Law Judge (ALJ) in a

            1990 decision,  that  he was  not disabled  between 1979  and

            1984,  this   claim  was  properly  dismissed   for  lack  of

            jurisdiction.   The  Appeals  Council rejected  his  untimely

            request for review  of the ALJ's decision after  finding that

            he had failed to establish the requisite good cause.   As has

            been  widely held, such a dismissal is not a "final decision"

            for  the purposes  of  42 U.S.C.    405(g)  and  thus is  not

            reviewable  in federal court.  See,  e.g., Bacon v. Sullivan,
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            969 F.2d 1517, 1519-21 (3d Cir. 1992) (citing cases).

                 To the extent claimant  is challenging the ALJ's finding

            that  he  was   ineligible  for  disability   benefits  after

            September 1984 due to  the earlier expiration of  his insured

            status,  his  claim was  subject  to  dismissal  on the  same

            ground.   The district  court, in  dismissing this  claim for

            lack of jurisdiction, did so without prejudice--apparently in

            the belief that it was  the subject of pending administrative

            action.  The record reveals, however, that the  ALJ addressed

            this matter in his  1990 decision.  Since the  government has



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            not expressed any concern on the point, we leave the judgment

            as  it stands  and mention  the matter  only for  purposes of

            clarity.

                 Finally, claimant challenges  the determination that  he

            received,  and  was  obligated  to  repay,  some  $24,000  in

            benefits that were "overpaid."  To the extent he is disputing

            the  existence and  amount  of such  overpayment, this  claim

            arguably was subject to dismissal with prejudice as well; the

            record  reveals that  the ALJ  addressed these matters  in an

            intervening 1993 decision from which claimant filed no appeal

            (a  decision which  neither party  apparently brought  to the

            attention  of the district court).   In any  event, given the

            Secretary's  recent  decision  to  waive  repayment  of  such

            benefits, this matter is now moot.

                 The  judgment is  affirmed.   The  motion to  supplement
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            record is allowed.
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