United States District Court, Northern District of Illinois, Eastern Division
April 7, 1982
JOSEPH TOLBERT, PLAINTIFF,
SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
(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
This is the first time Tolbert has sought
judicial review of an administrative denial of his application for
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
(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
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
(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
(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.