for which no good cause is shown, must be dismissed as untimely.
The Secretary argues that review is limited only to those who have
obtained review by the Appeals Council through a timely appeal or an
untimely appeal excused because of good cause. However, in the case of
procedural default for which no good cause is shown, judicial review is
unavailable. Failure properly to follow administrative remedies, in other
words, closes the door to judicial review entirely. Jones, on the other
hand, argues a version of exhaustion similar to that employed by the
federal courts in habeas corpus cases, namely, that the petitioner need
only demonstrate that no further administrative remedies are available
and not that he or she properly followed all available administrative
procedures. Under this analysis, § 205(g)'s sixty-day period would
start to run upon dismissal of the untimely appeal to the Appeals
It is clear that the decision by the Appeals Council to dismiss an
untimely request for review itself is not reviewable under § 205(g).
Watters v. Harris, 656 F.2d 234, 238-240 (7th Cir.1980); Sheehan v.
Secretary, 593 F.2d 323, 325 (8th Cir. 1979); Dietsch v. Schweiker,
700 F.2d 865, 867 (2d Cir. 1983). This is because a decision to deny
review of an untimely appeal may be rendered without a hearing, and hence
is not a "final decision . . . made after a hearing." Watters,
656 F.2d 239; see Social Security Act § 205(b), 42 U.S.C. § 405(b);
cf. Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 985, 51 L.Ed.2d
192 (denial of motion to reopen previously adjudicated claim not
reviewable because may be accomplished without a hearing).
Regarding review of the merits of the ALJ's decision, courts have found
that proper exhaustion of administrative remedies, and not exhaustion
accomplished only through procedural default, is an element of a
reviewable "final decision." Such exhaustion is jurisdictional, since it
is a requirement of consent to suit under § 205(g). See Sheehan, 593
F.2d at 325 (untimely appeal to Appeals Council after ALJ's decision
prevents judicial review under § 205(g)); Dietsch, 700 F.2d at 867
(same); Maloney v. Harris, 526 F. Supp. 621, 622 (E.D.N.Y. 1980) (same),
aff'd, 657 F.2d 264 (2d Cir. 1981); see Mathews v. Eldridge, 424 U.S. 319,
327-30, 96 S.Ct. 893, 899-900, 47 L.Ed.2d 18 (1976); Weinberger v.
Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 2462, 45 L.Ed.2d 522 (1975).
Jones correctly notes that full exhaustion of his Appeals Council
remedy is not jurisdictional in the sense that it cannot be waived.
Rather, judicial review is predicated on a non-waivable element —
that a claim for benefits be presented to the Secretary — and a
waivable element — that the established administrative remedies be
exhausted. Heckler v. Ringer, 104 S.Ct. at 2023; Mathews, 424 U.S. at
328, 96 S.Ct. at 899; Watters, 656 F.2d at 241. The parties do not
dispute that Jones has presented his application to the Secretary, and
thus fulfilled the non-waivable jurisdictional prerequisite. Thus, the
issue before the court is whether his failure to exhaust waivable
administrative procedures has been waived by the Secretary or may be
waived by the court.
It is clear that the Secretary has not waived Jones's failure to
exhaust, since his appeal was dismissed as untimely and the Secretary
disputes jurisdiction here. The court must determine, then, whether it
may waive exhaustion in this case. Such waiver has been allowed in cases
presenting colorable constitutional claims on issues collateral to the
denial of benefits. See Jensen v. Schweiker, 709 F.2d 1227, 1229 (8th
Cir. 1983) (challenge to administrative regulation); Dietsch, 700 F.2d at
867 (challenge to Appeals Council's decision to dismiss appeal as
untimely). The Supreme Court has recognized exceptions to the waivable
exhaustion requirements for "wholly collateral" issues that do not
necessarily raise constitutional claims. Heckler v. Ringer, 104 S.Ct. at
2023. See Mental Health Association of Minnesota, 720 F.2d 965, 969 (8th
Cir. 1983) (challenge to administrative regulation). Another case
explicitly rested waiver on the special
considerations present in an action for classwide relief, even where the
issues presented were not "wholly collateral" to the merits of the
individual claims. Polaski v. Heckler, 751 F.2d 943, 952-53 (8th Cir.
Jones would be correct if he argued that several of the exhaustion
cases are distinguishable from his case. For example, Mental Health and
Jensen involved claimants who were in the middle of their administrative
procedures and sought to avoid further exhaustion. A decision against
assertion of federal jurisdiction would simply defer judicial review and
did not foreclose it entirely. Such deferral accomplishes goals,
frequently articulated by the Supreme Court, to avoid interference in
agency processes and to allow the agency to compile a record for judicial
review. E.g., Weinberger v. Salfi, 422 U.S. at 765, 95 S.Ct. at 2466;
Heckler v. Ringer 104 S.Ct. at 2024 n. 12. Other decisions, such as the
Watters Court's denial of review of the merits of a claim that was never
presented to an ALJ, may be viewed as cases falling outside the explicit
statutory language, since the claimant did not obtain a decision "after a
hearing." In this case, Jones did have a hearing.
The Sheehan and Dietsch cases, however, are exactly on point. It is
clear that where administrative remedies are unavailable, exhaustion does
not simply defer judicial review and does not accomplish the goals
described above. Yet, exhaustion as prescribed by the Sheehan and
Dietsch cases is directed to achieving other goals, namely, avoidance of
claimants' bypassing administrative remedies and belatedly reopening
final decisions. E.g., Sheehan, 593 F.2d at 326-27. Were exhaustion to be
waived as a matter of course, claimants could at any time file a late
appeal, and upon dismissal resort to the federal courts. Such a perpetual
judicial remedy was found by the Supreme Court to frustrate the
congressional intent behind § 205(g). Califano v. Sanders, 430 U.S.
at 108, 97 S.Ct. at 985. Hence, it makes sense to require a claimant in
Jones's position to demonstrate how he satisfies one of the recognized
exceptions to the waivable exhaustion requirements.
Employing the broadest justification for waiver accepted by the
courts, no such justification is offered here. Jones has no collateral
issue to present to the court, nor does he assert any colorable
constitutional claims. In addition, there is no basis for exercise of
mandamus jurisdiction. 28 U.S.C. § 1361; see Dietsch, 700 F.2d at
868. Because failure properly to follow administrative procedures is a
prerequisite to suit under § 205(g), review is not available in this
court. The court finds that this decision is not a matter of subject
matter jurisdiction, which may not be waived. Rather, dismissal is
predicated on failure to state a claim upon which relief may be granted.
Hence, the court's grant of the motion to dismiss is accomplished under
The Secretary's motion to dismiss is granted. Fed.R.Civ.P. 12(b)(6).
The status hearing presently scheduled for May 20, 1985 is cancelled.
It is so ordered.
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