Jones, Bernard v. Barnhart, JoAnne B.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2005*
Decided June 27, 2005
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3214
BERNARD JONES, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 C 1814
JO ANNE B. BARNHART,
Defendant-Appellee. George M. Marovich,
Judge.
ORDER
Bernard Jones applied for and was granted Supplemental Security Income
benefits following a leg injury. His benefits were suspended during a brief period of
incarceration, and he alleges that upon his release his benefits went unpaid for
more than a year. When the accrued sum was eventually paid, according to Jones,
the Social Security Administration underpaid him by several thousand dollars.
Jones’ payments then resumed at a reduced rate, apparently in response to an
earlier overpayment, but were later terminated. Jones related in his complaint that
the termination was without notice, and that “after approximately five years of
applications, letters, complaints and visits to [the SSA],” he was able to successfully
reapply for his benefits. He petitioned the district court for a writ of mandamus to
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-3214 Page 2
direct the SSA to hold an administrative hearing to determine the amount of these
back payments.
The district court dismissed the petition without prejudice for lack of subject
matter jurisdiction. The court found that while Jones had filed papers with the
SSA in pursuit of his claim, the SSA had no record of his correspondence, and in
any event it was “clear” that Jones did not follow the proper procedures to exhaust
his administrative remedies. The court acknowledged that 28 U.S.C. § 1361 confers
district courts with original jurisdiction in mandamus matters, but added that 42
U.S.C. § 405(g) precludes judicial review of the SSA’s denial of benefits where the
plaintiff has not obtained a final decision of the Commissioner. Because a final
decision could not be made until Jones followed the proper procedures––namely
filing the necessary petition or request with the SSA––the court concluded that
Jones had failed to exhaust his available administrative remedies and that it
therefore lacked jurisdiction to issue mandamus relief.
On appeal, Jones does not make any argument regarding exhaustion, and
instead merely raises accusations about his attorney’s performance, the district
judge’s impartiality, and the state’s burden of responding to his allegations
regarding factual issues not on the record. Nothing in the record suggests that
Jones has exhausted his administrative remedies, and there is no final decision
from the Social Security Commissioner for the court to review. “The common-law
writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy
for a plaintiff only if he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S.
602, 616-17 (1984) (concluding that § 405(g) precludes mandamus jurisdiction
where administrative remedies are still available). The district court lacked subject
matter jurisdiction, and its judgment dismissing the petition is AFFIRMED.