United States District Court, Northern District of Illinois, E.D
January 31, 1985
ERIKA HENNINGS, PLAINTIFF,
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
Erika Hennings ("Plaintiff") brought this action against
Margaret M. Heckler, as Secretary of Health and Human Services
("Defendant" or the "Secretary"), seeking reversal of the
Secretary's decision that Plaintiff is not entitled to receive
Social Security Disability Insurance benefits ("S.S.D.I.").
Plaintiff invokes 42 U.S.C. § 405(g) ("§ 405(g)") as the basis
for subject matter jurisdiction over this case. Presently before
the court is Defendant's motion, under Fed.R.Civ.P. Rules
12(b)(1) and 12(b)(6), to dismiss the complaint for lack of
jurisdiction over the subject matter, or, in the alternative, for
failure to state a claim upon which relief can be granted. For
the reasons set forth below, Defendant's motion is denied.
Plaintiff is a forty-five year old German citizen who has not
lived in the United States since June 1972. However, because she
worked in the United States from 1960 until she returned to
Germany (apparently only intending to stay for a short period) in
1972, Plaintiff was "insured," for purposes of the S.S.D.I.
program, until March 31, 1977. As a result, Plaintiff is eligible
for S.S.D.I. if she became "disabled," within the meaning of
42 U.S.C. § 423(d), on or before March 31, 1977, but not if she
became disabled after that date.
On August 18, 1978, Plaintiff filed an application for
S.S.D.I., contending that she had been disabled, as a result of
several physical impairments, at least since November 16, 1974.
The Social Security Administration (the "S.S.A.") initially
Plaintiff's claim, and the S.S.A. denied her claim again on
reconsideration. Plaintiff then requested a "hearing" before an
administrative law judge ("A.L.J."), but she waived her "right to
appear and give evidence," asking for "a decision on the evidence
on file." (Plaintiff's Exhibit A at 8.) On September 28, 1979,
the A.L.J., basing his decision on "the evidence of record,"
ruled that Plaintiff "was not under a `disability,' as defined in
the Social Security Act, as amended, at any time on or before
March 31, 1977." (Plaintiff's Exhibit A at 9, 15.) Plaintiff did
not seek review of the A.L.J.'s decision by the Appeals Council
within the time allowed.
On September 16, 1981, Plaintiff filed a second application for
S.S.D.I., claiming that she had been disabled since November 16,
1974. The S.S.A. properly treated that application as a request
to reopen the A.L.J.'s September 28, 1979 decision, see 20
C.F.R. §§ 404.987-404.995 (1983), on the ground that Plaintiff
had submitted "[n]ew and material evidence,"
20 C.F.R. § 404.989(a)(1) (1983), and the S.S.A. denied the
request initially and on reconsideration. On September 29, 1983, a
different A.L.J. dismissed Plaintiff's request for a hearing, stating,
in part, as follows:
On September 28, 1979, an Administrative Law Judge
issued a decision denying . . . [Plaintiff's] claims.
The claimant did not request review of the decision
and it thereupon became final and binding on all
issues covered therein. The claimant last had insured
status for disability purposes under Title II of the
Social Security Act March 31, 1977. Inasmuch as the
claimant did not have disability insured status after
the decision of September 28, 1979, that decision
accordingly is the final and binding action of the
Secretary. . . .
Under . . . [20 C.F.R. § 404.988 (1983)] a decision
may be reopened for good cause "— (w)ithin four
years of the date of notice of the initial
determination. . . .". Notice of the initial
determination in this case was dated September 19,
1978. The four year period during which the September
28, 1979 decision might be reopened for good cause
thus expired September 19, 1982.
The decision of September 28, 1979 is no longer
subject to reopening for good cause and remains final
and binding. It was dispositive of all issues
relating to the claims and is res judicata as to the
subsequent application dated [S]eptember 16, 1981.
(Plaintiff's Exhibit B at 24.) The Appeals Council denied
Plaintiff's request for review of the A.L.J.'s decision on
November 10, 1983, and the A.L.J.'s decision thus constitutes the
Secretary's decision with respect to Plaintiff's second
application for S.S.D.I. See 20 C.F.R. § 404.959 (1983).
Plaintiff filed her complaint in this court on January 12, 1984.
Section 405(g) provides, in part, as follows:
Any individual, after any final decision of the
Secretary made after a hearing to which he was a
party, irrespective of the amount in controversy, may
obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him
of notice of such decision or within such further
time as the Secretary may allow.
Defendant's primary contention is that that jurisdictional grant
does not cover the present case, and that, because § 405(g) is
the only possible source of jurisdiction over this case, we must
dismiss the complaint for lack of jurisdiction. We consider the
two prongs of Defendant's argument separately.
Subject to a single exception, § 405(g) does not, as Plaintiff
concedes, confer jurisdiction to review a denial by the Secretary
of a request to reopen an earlier final decision. Califano v.
Sanders, 430 U.S. 99, 107-109, 97 S.Ct. 980, 985-986, 51 L.Ed.2d
192 (1977). See Watters v. Harris, 656 F.2d 234, 238 (7th Cir.
1980). The same is true of a decision by the Secretary that a
claim for benefits is barred under the doctrine of administrative
res judicata. See,
e.g., Carter v. Heckler, 712 F.2d 137, 142 (5th Cir. 1983). The
exception is that § 405(g) authorizes judicial review in such
cases if the Secretary's decision "is challenged on
constitutional grounds." Califano v. Sanders, 430 U.S. at
108-109, 97 S.Ct. at 985-986.
Plaintiff attempts to fit this case within that exception by
arguing that the Secretary's actions deprived her of property
without due process of law, in violation of the Fifth Amendment.
This argument is without merit. First, to the extent that
Plaintiff claims that she was afforded insufficient process in
connection with the A.L.J.'s 1979 decision, we note that, in
order to fall within the exception discussed in Sanders, the
Secretary's refusal to reopen the decision, not simply the
original decision, must raise a constitutional question. See
Steebe v. United States Railroad Retirement Board, 708 F.2d 250,
256 (7th Cir.), cert. denied, ___ U.S. ___,104 S.Ct. 496, 78
L.Ed.2d 689 (1983). Accordingly, even were we to find that
Plaintiff did not receive proper notice or a meaningful
opportunity to be heard in 1979, that would not provide a basis
for finding that we have jurisdiction over the case under §
At any rate, we could not find that Plaintiff's attack on the
A.L.J.'s 1979 decision presents "colorable constitutional
claims." Califano v. Sanders, 430 U.S. at 109, 97 S.Ct. at 986;
Watters v. Harris, 656 F.2d at 240-241. Plaintiff was informed
by the S.S.A. that she had a right to a hearing before an A.L.J.,
and she requested review of her case by an A.L.J., although she
waived her right to appear. Plaintiff cannot complain that she
received no notice of a "hearing" which, because of the waiver,
was never held. The essence of Plaintiff's argument, though,
seems to be that the waiver was invalid because Plaintiff was not
offered a meaningful opportunity to be heard, in that the S.S.A.
would not hold her hearing in Germany or pay for her to come to
the United States for a hearing. This contention is frivolous.
The relevant regulation provides that "[h]earings are held in the
50 States, the District of Columbia, American Samoa, Guam, the
Northern Mariana Islands, the Commonwealth of Puerto Rico and the
Virgin Islands," 20 C.F.R. § 404.936(a) (1983), and Plaintiff has
not presented any statutory or constitutional authority, and we
have not found any, which supports her claim that that provision
is not valid. Nor has Plaintiff adduced any authority, and we
have not found any, which supports her argument that, as an
alternative, the S.S.A. should have paid for her to come to the
United States for a hearing. Moreover, Plaintiff's contention
that she was not afforded a proper hearing in connection with the
A.L.J.'s 1983 decision is, to the extent that it is based on the
due process clause, equally without merit, since Plaintiff did
not have a constitutional right to a hearing. See, e.g.,
Califano v. Sanders, 430 U.S. at 108, 97 S.Ct. at 985.
To the extent, however, that Plaintiff challenges the substance
of the A.L.J.'s 1983 decision, the jurisdictional situation is
somewhat different. This is so despite the fact that we find no
merit in Plaintiff's constitutional attack on the A.L.J.'s
application of the doctrine of administrative res judicata to
bar Plaintiff's claim. That argument, also based on the due
process clause of the Fifth Amendment, depends on our accepting
Plaintiff's contention that she was denied the opportunity for a
"full and fair hearing" in 1979, which, for the reasons discussed
above, we decline to do. The reason that the absence of a
colorable constitutional claim does not entirely deprive us of
jurisdiction under § 405(g) is that we always retain our
jurisdiction to determine whether we have jurisdiction. See,
e.g., Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe
Railway Co., 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578
(1926) (Brandeis, J.). We agree with those courts which have
found that this means that we have the power to decide whether
the original claim for benefits and the subsequent claim are the
"same" claims for purposes of applying the doctrine of
administrative res judicata, and the power to determine whether
the Secretary, in the course of considering the
subsequent claim, has, regardless of any statements to the
contrary, actually or constructively reopened the original claim.
See McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir. 1981);
Tolbert v. Secretary of Health and Human Services, 537 F. Supp. 631,
632-633 (N.D.Ill. 1982). If we find that the original claim
and the subsequent claim are not the "same" claims for purposes
of applying the doctrine of administrative res judicata, or if
we find that the Secretary has actually or constructively
reopened the original claim, then we have "full" jurisdiction
under § 405(g) to review the Secretary's decision denying the
subsequent claim. See McGowen v. Harris, 666 F.2d at 65-66. In
the present case, however, we believe that Plaintiff's two claims
clearly were the "same" for res judicata purposes, and that the
Secretary clearly did not reopen Plaintiff's original claim.
Accordingly, we agree with Defendant that § 405(g) does not
confer jurisdiction over this case.
That conclusion does not, however, end our inquiry, since we
must also consider whether any statutory provision other than §
405(g) confers jurisdiction over this case. Although Plaintiff
only alleges jurisdiction under § 405(g) in her complaint, "[a]
court's discretion to dismiss for lack of subject matter
jurisdiction when the plaintiff could have pleaded the existence
of jurisdiction and when in fact such jurisdiction exists, should
be exercised sparingly." Hoefferle Truck Sales, Inc. v.
Divco-Wayne Corporation, 523 F.2d 543, 549 (7th Cir. 1975). See
Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 608 n. 6,
98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570 (1978); Kuehner v.
Schweiker, 717 F.2d 813, 825 n. 12 (3d Cir. 1983) (Becker, J.,
concurring), vacated and remanded on other grounds, ___ U.S.
___, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984); Harary v. Blumenthal,
555 F.2d 1113, 1115 n. 1 (2d Cir. 1977). We will not dismiss the
complaint if we find that any proper jurisdictional basis for it
We begin by noting that such a jurisdictional basis cannot be
found in 28 U.S.C. § 1331 or 28 U.S.C. § 1346, see 42 U.S.C. § 405(h)
("§ 405(h)");*fn1 Weinberger v. Salfi, 422 U.S. 749,
756-759, 95 S.Ct. 2457, 2462-2464, 45 L.Ed.2d 522 (1975), or in
the Administrative Procedure Act. See Califano v. Sanders, 430
U.S. at 104-107, 97 S.Ct. at 983-985. That leaves only one
possible source of jurisdiction over this case, the federal
mandamus statute, 28 U.S.C. § 1361 ("§ 1361"), which provides
The district courts shall have original
jurisdiction of any action in the nature of mandamus
to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the
Whether § 405(h) precludes a court's exercising jurisdiction
under § 1361 is an issue which neither the Supreme Court, see
Heckler v. Ringer, ___ U.S. ___, 104 S.Ct. 2013, 2022, 80 L.Ed.2d
622 (1984), nor the Court of Appeals for the Seventh Circuit, see
Attorney Registration and Disciplinary Commission of Supreme
Court of Illinois v. Schweiker, 715 F.2d 282
, 290 (7th Cir.
1983); Americana Healthcare Corporation v. Schweiker,
688 F.2d 1072
, 1087 (7th Cir. 1982), cert. denied, 459 U.S. 1202
S.Ct. 1187, 75 L.Ed.2d 434 (1983); Watters v. Harris, 656 F.2d
at 241 n. 12, has decided. However, as Judge Posner has noted,
"there is a powerful argument that the mandamus statute remains
available to social security claimants notwithstanding [§
405(h)]." Attorney Registration and Disciplinary Commission of
Supreme Court of Illinois v. Schweiker, 715 F.2d at 290. Indeed,
every court of which we are aware which has explicitly
decided the issue has found that, "under circumstances where the
writ [of mandamus] properly would issue," City of New York v.
Heckler, 742 F.2d 729
, 739 (2d Cir. 1984), § 1361 "provides
jurisdiction to review otherwise unreviewable procedural issues
not related to the merits of a claim for benefits." Dietsch v.
Schweiker, 700 F.2d 865
, 868 (2d Cir. 1983). See, e.g., Lopez v.
Heckler, 725 F.2d 1489
, 1507-1508 (9th Cir.), vacated and
remanded on other grounds, ___ U.S. ___, 105 S.Ct. 583
L.Ed.2d 694 (1984); Mental Health Association of Minnesota v.
Heckler, 720 F.2d 965
, 971 n. 17 (8th Cir. 1983); Belles v.
Schweiker, 720 F.2d 509
, 511-512 (8th Cir. 1983); Kuehner v.
Schweiker, 717 F.2d at 819; Ellis v. Blum, 643 F.2d 68
(2d Cir. 1981) (Friendly, J.); Bellantoni v. Schweiker,
566 F. Supp. 313, 316 n. 4 (E.D.N.Y. 1983); Dixon v. Quern,
537 F. Supp. 990, 991-992 (N.D.Ill. 1982). We find the reasoning of
those decisions to be persuasive, and we thus follow the
overwhelming weight of authority and conclude that, under
appropriate circumstances, mandamus jurisdiction under § 1361 is
available in social security cases.
Moreover, several courts have held that exercising such
jurisdiction was proper under circumstances which were very
similar to those presented by this case. In Dietsch v.
Schweiker, 700 F.2d at 868, the Court of Appeals for the Second
Circuit held that § 1361 provided jurisdiction to decide "whether
mailing a request for review of an administrative law judge's
decision constitutes filing within the meaning of the regulations
promulgated under the Social Security Act." Id. at 866. In
Silvis v. Heckler, 578 F. Supp. 1401, 1402-1403 (W.D.Pa. 1984),
the court ruled that it had jurisdiction under § 1361 to
determine "whether the Secretary's regulations permit the
Secretary, as well as the claimant, to reopen a determination or
decision of an administrative law judge . . . after the sixty-day
period for internal appeal has elapsed." Id. at 1402. Finally,
in Sinatra v. Heckler, 566 F. Supp. 1354, 1357-1358 (E.D.N Y
1983), the court held that § 1361 conferred jurisdiction to
determine the nature of a presumption, concerning the date of
receipt of a certain type of notice sent by the S.S.A., which is
created by the Secretary's regulations. Id. at 1358-1359.*fn2
This case presents a similar issue of "regulatory
interpretation." In order to bring that issue into focus, we set
out the relevant provisions of the regulations. We begin with
20 C.F.R. § 404.955 (1983), which states, in part, as follows:
The decision of the administrative law judge is
binding on all parties to the hearing unless —
(c) The decision is revised by an administrative
law judge or the Appeals Council under the procedures
explained in § 404.987; . . .
In turn, 20 C.F.R. § 404.987 (1983) provides as follows:
(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.
(b) Procedure for reopening and revision. You may
ask that a determination or a decision to which you
were a party be revised. The conditions under which
we will reopen a previous determination or decision
are explained in § 404.988.
The cited regulation, 20 C.F.R. § 404.988 (1983) ("§ 404.988"),
provides, in part, as follows:
A determination, revised determination, decision,
or revised decision may be reopened —
(a) Within 12 months of the date of the notice of
the initial determination, for any reason;
(b) Within four years of the date of the notice of
the initial determination if we find good cause, as
defined in § 404.989, to reopen the case;. . . .
Finally, 20 C.F.R. § 404.989 (1983) states, in part, as follows:
(a) We will find that there is good cause to reopen
a determination or decision if —
(1) New and material evidence is furnished; . . .
The Secretary is, of course, bound by those regulations. See,
e.g., United States v. Nixon, 418 U.S. 683, 694-696, 94 S.Ct.
3090, 3100-3102, 41 L.Ed.2d 1039 (1974); Sinatra v. Heckler, 566
F. Supp. at 1358.
In the present case, as noted above, the A.L.J. (and thus the
Secretary), in dismissing Plaintiff's request for a hearing in
1983, ruled that "[t]he decision of September 28, 1979 [denying
Plaintiff's claim for benefits] is no longer subject to reopening
for good cause and remains final and binding. It was dispositive
of all issues relating to the claims and is res judicata as to
the subsequent application dated September 16, 1981."
(Plaintiff's Exhibit B at 24.) We may properly exercise mandamus
jurisdiction under § 1361 with respect to the Secretary's 1983
decision if and only if we find:
"(1) a clear right in the plaintiff to the relief
(2) a plainly defined and peremptory duty on the part
of the defendant to do the act in question; [and]
(3) no other adequate remedy available."
Americana Healthcare Corporation v. Schweiker, 688 F.2d at 1084
(citations omitted). What has been said above makes clear that
Plaintiff has "no other adequate remedy." Thus, our decision
turns on the question of whether the Secretary has "a plainly
defined and peremptory duty" to consider whether Plaintiff has
shown "good cause" to reopen the 1979 decision, and of whether
Plaintiff correlatively has "a clear right" to have the Secretary
consider whether she has shown "good cause."
We have little difficulty in finding that the A.L.J. clearly
misinterpreted § 404.988(b) in his 1983 decision. Although the
A.L.J. correctly found that the relevant four year period ended
on September 19, 1982, he nevertheless concluded that Plaintiff's
request to reopen the 1979 decision on the basis of "good cause"
was time barred, on the ground that he was considering the case
after September 19, 1982. That conclusion was erroneous. What §
404.988(b) requires is that the request to reopen the decision be
filed "[w]ithin four years of the date of the notice of the
initial determination," not that the Secretary reopen the
decision (assuming that she decides to do so) within four years
of that date. See Wilson v. Califano, 580 F.2d 208, 211 (6th
Cir. 1978). Since Plaintiff filed her second application for
S.S.D.I., which the S.S.A. treated as a request to reopen the
1979 decision, on September 16, 1981, well within the four year
period, Plaintiff's request was timely under § 404.988(b).
The fact that the Secretary incorrectly interpreted §
404.988(b), and thus found that Plaintiff's request to reopen was
time barred, is not, however, sufficient to establish that we can
properly exercise mandamus jurisdiction under § 1361 in this
case. We must still determine whether, given that Plaintiff's
request to reopen was not time barred, the Secretary has "a
plainly defined and peremptory duty" to consider the merits of
that request. We believe that the Secretary has such a duty. Cf.
20 C.F.R. § 404.987(b) (1983) (referring to "conditions under
which we will reopen a previous determination or decision"
(emphasis added)). In other words, within the four year period
specified in § 404.988(b), a decision of the Secretary is not
"final" for purposes of applying the doctrine of administrative
res judicata, 20 C.F.R. § 404.957(c)(1)
(1983),*fn3 unless the Secretary finds that "good cause" to
reopen the decision does not exist. See 20 C.F.R. § 404.955(c)
(1983). That is, a decision that a claim is res judicata must be
preceded by a determination that no basis exists for reopening
the earlier decision.
We believe that this view is implicit in Judge Shadur's apt
description of the Secretary's determination not to reopen a
decision and her determination to apply the doctrine of
administrative res judicata to that decision as "companion
decision[s]." Tolbert v. Secretary of Health and Human Services,
537 F. Supp. at 632. Indeed, in the present case, the A.L.J.'s
order dismissing Plaintiff's request for a hearing makes clear
that the A.L.J. believed that those decisions are so related; he
first decided (incorrectly, we have found) that the Secretary's
1979 decision could not be reopened for "good cause," and only
then did he apply the doctrine of administrative res judicata to
the 1979 decision. To find that the Secretary can, before the
relevant four year period has elapsed, refuse to consider whether
a claimant has shown "good cause" to reopen an earlier decision
would be to permit the Secretary to make completely arbitrary
decisions. Allowing the Secretary discretion in deciding whether
"good cause" has been established is one thing; allowing her
discretion in deciding whether to consider whether "good cause"
has been established would be something quite different. Having
provided by regulation that her decisions may be reopened for
"good cause" within the specified four year period, the Secretary
must, when a claimant within that period requests that a decision
be reopened for "good cause," determine whether the claimant has
shown "good cause" to reopen the decision, and only if the
Secretary determines that the claimant has failed to show "good
cause" may she apply the doctrine of administrative res judicata
to the decision. Requiring less would violate the most
fundamental tenets of our legal system.
Accordingly, we find that the Secretary has "a plainly defined
and peremptory duty" to consider whether Plaintiff has shown
"good cause" to reopen the Secretary's 1979 decision, and that
Plaintiff has "a clear right" to have the Secretary consider
whether she has shown "good cause." Thus, we conclude that we
have mandamus jurisdiction over this case under § 1361. What has
been said also establishes that the complaint states a claim upon
which relief can be granted, and, indeed, that Plaintiff is
entitled to relief.
For the reasons stated above, Defendant's motion to dismiss the
complaint is denied. The Secretary's order dismissing Plaintiff's
request for a hearing is hereby vacated, and the case is remanded
to the Secretary with instructions to give Plaintiff a hearing
before an A.L.J. on the issue of whether Plaintiff has shown
"good cause" to reopen the Secretary's 1979 decision denying her
claim for S.S.D.I.