Robert Lee Rowden v. Janice L. Warden , 89 F.3d 536 ( 1996 )

___________
No. 93-3553
___________
Robert Lee Rowden, *
*
Appellant, *
*
v. *
*
Janice L. Warden; Social *
Security Administration, *
*
Appellees. *
___________
Appeals from the United States
No. 95-1442 District Court for the
___________ Eastern District of Missouri
Robert Lee Rowden, *
*
Appellant, *
*
v. *
*
Shirley S. Chater, Commissioner *
of the Social Security *
Administration,* *
*
Appellee. *
___________
Submitted: September 28, 1995
Filed: July 17, 1996
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Before McMILLIAN, BRIGHT and MAGILL, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
*As of March 31, 1995, the Social Security Administration
became an independent agency from the Department of
Health and Human Services. Therefore, the court has
substituted Shirley S. Chater for Donna E. Shalala
pursuant to Fed. R. App. P. 43(c).
Robert Lee Rowden appeals from the final order of the District Court1
for the Eastern District of Missouri, dismissing for failing to exhaust his
administrative remedies his claim against the Social Security
Administration (SSA) concerning his continued receipt of disability
benefits while incarcerated. We affirm.
When Rowden first applied for disability benefits in 1989, he signed
a statement agreeing to notify the SSA if he were imprisoned for conviction
of a felony. Rowden was awarded disability benefits in 1990 due to a heart
impairment, and was convicted of a felony in October 1992. He did not
inform the SSA of his conviction. In March 1993, the SSA notified Rowden
that it had learned of his conviction. In May, the SSA informed Rowden
that his benefits were suspended effective October 1992, and that he owed
$5,334.60 in overpayment. On June 8, Rowden submitted a request for a
waiver of collection of overpayment. The SSA denied Rowden's waiver
request, concluding Rowden was not without fault in causing the
overpayment. After a personal conference, the SSA notified Rowden on May
25, 1994, that the decision to deny waiver of overpayment was correct, and
informed Rowden he had sixty days to request a review by an Administrative
Law Judge (ALJ). Rowden did not do so.
Rowden initiated a civil rights action against the SSA, claiming his
disability benefits were wrongly terminated. The district court,
construing the complaint as asserting jurisdiction under 42 U.S.C.
§ 405(g), dismissed it as frivolous because Rowden did not assert that he
was participating in an approved
1
The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri, adopting the report and
recommendations of the Honorable Catherine D. Perry, then United
States Magistrate Judge for the Eastern District of Missouri, now
United States District Judge for the Eastern District of Missouri.
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rehabilitation program. See 42 U.S.C. § 402(x)(1).2 Because Rowden had
attempted to amend his complaint to allege that he was attending
rehabilitation, we remanded the case for further proceedings. Rowden v.
Warden, No. 93-3553 (8th Cir. Nov. 19, 1993) (order). On remand, Rowden
amended his complaint asserting he was participating in the Missouri Sexual
Offenders Program.
The SSA did not respond to the amended complaint for five months
because Rowden served an SSA employee, not the proper party. Once notified
of the pending action, the SSA moved to dismiss. The district court then
granted the SSA's motion, concluding that the court lacked subject matter
jurisdiction because Rowden had failed to exhaust his administrative
remedies by requesting a hearing before an ALJ. Rowden unsuccessfully
sought reconsideration, arguing his failure to exhaust was not intentional,
the SSA did not inform him of his rights or obligation to appeal
administratively, and prison officials mishandled his mail.
On appeal, Rowden argues that, but for the SSA's delay in informing
him during the litigation that he had to exhaust his administrative
remedies, he would have complied. Similarly, he argues that had the court
pointed out the exhaustion problem rather than dismiss his initial
complaint as frivolous, he also would have filed a timely request for
hearing. The SSA argues that any delay in the SSA answering the complaint
was caused by Rowden's failure to properly serve the agency and thus the
SSA is not responsible for Rowden's failure to exhaust his administrative
remedies.
Rowden may seek judicial review of the Secretary's decision in this
case only after a final decision by the Secretary "made after a hearing."
42 U.S.C. § 405(g); see Medellin v. Shalala, 23 F.3d
2
The rehabilitation exception has been eliminated for benefits
paid beginning February 1995. See Social Security Domestic
Employment Reform Act of 1994, Pub. L. No. 103-387, § 4, 1994
U.S.C.C.A.N. (108 Stat.) 4071, 4076.
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199, 202 nn.4-5 (8th Cir. 1994). Because Rowden has not shown he requested
a hearing before an ALJ to appeal either the decision to terminate his
benefits or to deny a waiver of his overpayment, Rowden did not exhaust his
administrative remedies. See 20 C.F.R. §§ 404.929 - .933 (request for
hearing before ALJ); 404.967 (Appeals Council review); 404.981 (judicial
review). Although the exhaustion requirement may be waived in certain
limited circumstances, see Rodabaugh v. Sullivan, 943 F.2d 855, 857 (8th
Cir. 1991), Rowden has not met those conditions.
In addition, Rowden may not assert estoppel, based on his assertion
that the district court and the SSA failed to inform him earlier of his
need to exhaust his administrative remedies. Estoppel against the
government requires a showing of affirmative misconduct, which Rowden has
not shown here. See Olsen v. United States, 952 F.2d 236, 241 & n.2 (8th
Cir. 1991) (test for estoppel). Thus, absent grounds to excuse exhaustion,
the district court was bound to dismiss for lack of jurisdiction.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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