Griffin v. Astrue , 300 F. App'x 615 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 28, 2008
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
CHARLES JAMES GRIFFIN, JR.,
Plaintiff-Appellant,
v. No. 08-1054
(D.C. No. 1:07-cv-00176-JLK)
MICHAEL J. ASTRUE, Commissioner (D. Colo.)
of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.
Charles James Griffin, Jr., proceeding pro se, appeals from the district
court’s dismissal of his action for lack of subject matter jurisdiction due to
Mr. Griffin’s failure to exhaust his administrative remedies. The Commissioner
of Social Security has filed a motion to dismiss the appeal, asserting that upon
further factual review, the agency has determined that a remand for further
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
administrative proceedings is appropriate. Mr. Griffin, whose pro se filings are
entitled to a liberal construction, see Wheeler v. Comm’r, 528 F.3d 773, 781
(10th Cir. 2008), has objected to the motion to dismiss. Exercising jurisdiction
under 28 U.S.C. § 1291, we grant the motion to dismiss, subject to the
Commissioner’s agreement, as stated in his motion, to consider Mr. Griffin’s
filing of this action as a timely filed request for a hearing before an administrative
law judge (ALJ), and to remand the matter to an ALJ for a hearing.
Background
In 1993, the Commissioner determined that Mr. Griffin was entitled to
disability insurance benefits (DIB) under Title II of the Social Security Act.
Those benefits were later reduced by an offset for state workers’ compensation
benefits. Mr. Griffin filed a request for reconsideration, which was denied by a
Notice of Reconsideration dated December 11, 2006 (Notice). In the Notice, the
Commissioner advised Mr. Griffin that he had the right to appeal the decision by
requesting a hearing before an ALJ within sixty days of the date he received the
Notice.
Mr. Griffin did not request a hearing before an ALJ; instead, he filed this
action on January 24, 2007, naming the Commissioner and three individual
employees of the Social Security Administration (SSA) in their official capacity.
The Commissioner moved to dismiss the official-capacity claims against the
individual defendants on the ground that Mr. Griffin’s claims were really against
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the United States in the form of the Commissioner. The Commissioner also
moved to dismiss the action for lack of subject matter jurisdiction.
The district court granted the motion for the reasons stated in it, dismissing
the official-capacity claims and the case. Mr. Griffin asked the court to
reconsider its dismissal of the case or, in the alternative, to consider his request as
a notice of appeal. The district court denied the motion to reconsider but
considered the request to be Mr. Griffin’s notice of appeal. Mr. Griffin thereafter
filed an additional notice of appeal.
Analysis
By statute, federal courts have jurisdiction to review “any final decision of
the Commissioner.” 42 U.S.C. § 405(g); see also id. § 405(h) (“No findings of
fact or decision of the Commissioner . . . shall be reviewed by any person,
tribunal, or governmental agency except as herein provided.”). The term “final
decision” is not defined in the statutes, and “its meaning is left to the
[Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749,
766 (1975). To that end, the Commissioner has promulgated regulations setting
out a four-step administrative review process. See 20 C.F.R. § 404.900(a). A
determination about “[a] reduction in [a claimant’s] disability benefits because
[the claimant] also receive[s] benefits under a workmen’s compensation law” is
an “initial determination.” Id. § 404.902(e). If dissatisfied with the initial
determination, a claimant may ask for reconsideration. Id. § 404.907. If the
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claimant is dissatisfied with the reconsideration, he may request a hearing before
an ALJ, id. §§ 404.929, 404.930, and if still dissatisfied after the ALJ’s decision,
the claimant may request that the Appeals Council review the decision, id.
§ 404.967. After the Appeals Council either denies the request for review or
grants the request and issues its own decision, the claimant may seek judicial
review by filing an action in the proper federal district court within sixty days
after receiving notice of the Appeals Council’s decision. Id. § 404.981.
Mr. Griffin completed only the first two steps of this process. Because
there is no indication that further administrative proceedings would be futile or
that the Commissioner has waived further exhaustion, the district court properly
dismissed his action for failure to exhaust his administrative remedies. See
Heckler v. Ringer, 466 U.S. 602, 617-19 (1984) (discussing exceptions to
exhaustion doctrine and affirming dismissal for failure to exhaust); see also
Weinberger, 422 U.S. at 765 (explaining that among other things, exhaustion is
ordinarily required 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”). But rather than affirm the district court’s dismissal, we
elect to grant the Commissioner’s motion to dismiss this appeal. In the motion,
the Commissioner states that the SSA,
in its role as finder of fact, has further reviewed [Mr.] Griffin’s case
and determined that a remand for further administrative proceedings
is appropriate. If the Court grants this motion, the Appeals Council
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will consider [his] filing of the district court civil action (D.C. NO.
07-cv-00176-JLK) as a timely filed request for hearing before an
[ALJ]. The Appeals Council will remand the matter to an ALJ for a
hearing on SSA’s determination to offset [Mr.] Griffin’s Social
Security disability benefit amount because he was also receiving
federal workers’ compensation benefits.
Mot. to Dismiss at 1. Although Mr. Griffin opposes the motion, he has not
advanced any reasoned argument that persuades us to deny it; indeed, he would be
disserved by the alternative—affirmance of the district court’s dismissal.
Accordingly, subject to the conditions set forth in the motion regarding a remand
for a hearing before an ALJ, we GRANT the motion to dismiss this appeal. We
encourage Mr. Griffin to take advantage of the Commissioner’s generous offer,
and we thank the Commissioner for advancing it.
The appeal is DISMISSED for the reasons stated above. 1
Entered for the Court
David M. Ebel
Circuit Judge
1
In his complaint and his motion to reconsider, Mr. Griffin also requested
that the district court appoint an attorney to represent him. Mr. Griffin has not
challenged the district court’s implicit denial of those requests, and to the extent
he has asked for counsel on appeal in his “Third Brief Motion Answer,” his
request is denied.
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