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United States District Court, Northern District of Illinois, Eastern Division

April 7, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Joseph Tolbert ("Tolbert") seeks review of a decision by the Secretary of Health and Human Services ("Secretary") denying Tolbert disability benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 423. Secretary has moved under Fed.R.Civ.P. ("Rule") 12 (b)(1) to dismiss for lack of subject matter jurisdiction. For the reasons stated in this memorandum opinion and order, Secretary's motion is granted.*fn1

Administrative Proceedings

Tolbert has filed five applications for disability benefits, all of which have been denied:

    (1) Tolbert's February 10, 1971 application
  was denied by an administrative law
  judge ("ALJ"). His request for review
  was denied by the appeals council.

    (2) Tolbert's January 11, 1973 application
  was denied by an ALJ. Again his
  request for review was denied by the
  appeals council.

    (3) Tolbert's August 17, 1976 application
  was denied initially and upon reconsideration.
  Tolbert did not request a
  hearing before an ALJ.

    (4) Tolbert's July 1979 application was
  denied initially and upon reconsideration.
  Tolbert requested a hearing but an ALJ
  dismissed that request on res judicata

    (5) Tolbert's June 16, 1980 application
  was denied initially and upon reconsideration.
  Once again Tolbert's request for a
  hearing was dismissed by an ALJ on res
  judicata grounds. Tolbert's request for
  review was denied by the appeals council.

Tolbert now invokes 42 U.S.C. § 405 (g) to review the denial of his fifth application.*fn2 This is the first time Tolbert has sought judicial review of an administrative denial of his application for disability benefits.

Res Judicata

Under 42 U.S.C. § 405 (g) and (h) this Court can review only final decisions by the Secretary. When the Secretary has once denied an application for disability benefits and a second like application is presented, he has the following options:*fn3

  20 C.F.R. § 404.957: Dismissal of a Request
  for a Hearing — An administrative law
  judge may dismiss a request for a hearing
  under any of the following conditions:

  (c) the administrative law judge decides
    that there is cause to dismiss a hearing
    request entirely or to refuse to consider
    any one or more of the issues because —
    (1) the doctrine of res judicata applies
    in that we have made a previous determination
    or decision under this subpart
    about your rights on the same facts
    and on the same issue or issues, and
    this previous determination or decision
    has become final by either administrative
    or judicial action.

20 C.F.R. § 404.987: Reopening and Revising Determinations and Decisions —

  (a) General. Generally, if you are dissatisfied
  with a determination or decision
  made in the administrative review
  process, but do not request further review
  within the stated time period, you
  lose your right to further review.
  However, a determination or a decision
  made in your case may be reopened and
  revised. After we reopen your case,
  we may revise the earlier determination
  or decision.

ALJs held that Tolbert's last two applications presented the identical claim that had been made in his earlier applications and were thus barred by administrative res judicata. Though Tolbert submitted new evidence on each occasion, the ALJs examined the evidence and found nothing that merited reopening the case. Secretary claims those rulings are not final decisions subject to federal court review.

Secretary's determination that a claim is barred by res judicata and his companion decision not to reopen a case are indeed not final decisions open to district court review. Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982); Rios v. Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980); Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472, 474 (8th Cir. 1979). But that proposition does not necessarily end the inquiry.

Secretary would have this Court dismiss any proceeding in which he had dismissed an application on res judicata grounds.*fn4

This Court finds more persuasive the thoughtful approach of the Fourth Circuit in McGowen v. Harris, 666 F.2d 60 (4th Cir. 1981). Because a court always has "jurisdiction to determine its own jurisdiction" (id. at 64), this Court would abdicate that responsibility by responding in a purely Pavlovian way to the Secretary's statement that res judicata applied. For that reason McGowen specified two instances in which a district court can review Secretary's refusal (a) to grant a hearing on the basis of res judicata and (b) to exercise discretion to reopen the proceeding:

    (1) Courts must retain the power to
  determine whether application of res judicata
  was appropriate. If not "the subsequent
  claim is necessarily, in legal contemplation,
  a different one whose merits
  have never been addressed administratively.
  In consequence Secretary's decision
  denying the claim was one to which
  the claimant was entitled to a hearing
  and hence, to judicial review of the denial."
  McGowen, 666 F.2d at 65 (emphasis
  in original).

    (2) If the later claim is the same for
  res judicata purposes but Secretary nonetheless
  reconsiders the merits of any substantive
  matter to any extent, Secretary
  will be deemed effectively to have reopened
  the matter. "In that event the
  final decision of the Secretary denying
  the claim is also subject to judicial review
  to the extent of the reopening, without
  regard to the expressed basis for the Secretary's
  denial." Id. at 65-66.

Although Secretary has not provided a complete copy of the administrative record, the documents supplied with his motion provide a sufficient basis for determining whether the res judicata findings were appropriate.*fn5 Tolbert's disability earnings requirements expired September 30, 1976.*fn6

Accordingly both his July 1979 petition and his June 16, 1980 petition pose the question of his disability on or before that expiration date. Both ALJs who reviewed those petitions held he was pursuing precisely the same claim. Both carefully examined the new medical evidence submitted by Tolbert and found it insufficient to merit reopening his case. Neither branch of the McGowen exceptions is therefore met, 666 F.2d at 66-68.


Tolbert's June 16, 1980 petition for disability benefits was denied by Secretary on the ground of administrative res judicata. Because that finding was proper, Secretary's action was not a final decision subject to review in this Court. Accordingly Secretary's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is granted.

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