Dietzler, Carol L. v. Barnhart, Jo Anne B.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 30, 2005*
Decided April 1, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
CAROL L. DIETZLER, Appeal from the United
Plaintiff-Appellant, States District Court for the
Eastern District of Wiscon-
No. 04-2747 v. sin.
JO ANNE B. BARNHART, No. 04-C-525
COMMISSIONER OF SOCIAL SECURITY, J.P. Stadtmueller, Judge.
Defendant-Appellee.
Order
When Carol Dietzler sought leave to pursue this suit in forma pauperis under 28
U.S.C. §1915, the district judge concluded that it failed to state a claim on which re-
lief may be granted and dismissed it outright. The judge thought that Dietzler was
trying to obtain disability benefits on behalf of her ex-husband (who, the complaint
alleged, would “never cooperate or follow through” with an application) and dis-
missed the complaint because she could not make a claim on someone else’s behalf.
On appeal Dietzler has clarified her position. She seeks benefits on behalf of her
son, and the basis of these benefits would be her ex-husband’s disability (brain
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).
No. 04-2747 Page 2
damage manifested in, among other things, inability to apply himself). See 42
U.S.C. §402(d); 20 C.F.R. §404.350–368.
The clarification does not, however, affect Dietzler’s fundamental obstacle: no
one has applied for federal benefits. Not her ex-husband, not her ex-husband’s
guardian, not her son (now an adult), and not Dietzler herself. An application is es-
sential. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 328 (1976); Weinberger v.
Salfi, 422 U.S. 749, 763–64 (1975). If the agency tarries unduly in making a deci-
sion, it might be possible to use the Administrative Procedures Act to seek a resolu-
tion of the administrative claim. See 5 U.S.C. §706(1). But Dietzler, who has not
filed an application, lacks either a final decision or a claim of unwarranted delay.
What she contends is that preparing an application would be too cumbersome and
difficult, but no rule of federal law entitles a person to cut the agency out of the
process and head straight to court. Until the agency has acted (or had a full oppor-
tunity to do so), there is no legal wrong to redress.
AFFIRMED