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NOVAK v. SULLIVAN

September 17, 1992

ANTON NOVAK, Plaintiff,
v.
LOUIS SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 This action arises out of the dismissal of plaintiff Anton Novak's claim for benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416, 423. Presently before the court is the Secretary's motion to dismiss Novak's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, we grant the Secretary's motion to dismiss.

 The allegations of the complaint and the additional submissions of the parties reveal the following facts. On April 27, 1990, Novak filed for disability and disability insurance benefits, alleging a disability onset date of July 23, 1982. On June 25, 1990, that claim was denied. Despite being notified of his right to reconsideration, Novak did not seek further administrative review and, as such, the June 25, 1990 determination became final.

 On March 29, 1991, Novak filed a second application for disability benefits, claiming a disability onset date of March 27, 1982. This petition was denied on April 1, 1991, based on an application of the doctrine of res judicata. As was his right, Novak sought a hearing before an Administrative Law Judge ("ALJ"). By order dated December 18, 1991, the ALJ dismissed Novak's request for a hearing on the grounds of res judicata. The ALJ reasoned that the "current request for a hearing involves the rights of the same claimant on the same facts and on the same issues which were decided in the final and binding determination dated June 25, 1990, made on the prior application." Novak pursued the matter before the Appeals Council. This request, treated as a request to reopen the June 25, 1990 determination, was denied by order dated March 4, 1992. Novak instituted this action on April 2, 1992, seeking review of the Appeals Council's resolution.

 II. Discussion

 The gravamen of the Secretary's motion is that this court's jurisdiction is limited to review of "final decisions" pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), *fn1" and that the Appeals Council's decision was not a "final decision" for purposes of § 205(g). In the instant case, where there was no hearing on the second application, our inquiry is twofold: (1) whether the denial of a request for a hearing on the basis of res judicata constitutes a "final decision" for purposes of § 205(g); and (2) whether the Appeals Council's refusal to reopen the prior resolution constitutes a "final decision" for purposes of § 205(g).

 The authority of the ALJ to dismiss a request for a hearing on the basis of res judicata is grounded in 20 C.F.R. § 404.957(c)(1), which provides:

 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.

 Novak does not dispute the ALJ's determination that the second claim was the same as the first for res judicata purposes. Cf. McGowen v. Harris, 666 F.2d 60, 65 (4th Cir. 1981) ("If administrative res judicata has been applied in bar of a subsequent claim which, properly assessed, is not the same for res judicata purposes, jurisdiction to engage in judicial review exists."). Under such circumstances, and in the absence of a constitutional objection to applying res judicata, this court is without jurisdiction under § 205(g) to engage in judicial review of the ALJ's decision to deny Novak's request for a hearing. See Johnson v. Sullivan, 936 F.2d 974, 976 (7th Cir. 1991) ("[A] decision to apply administrative res judicata is a discretionary one not subject to judicial review."); see also McGowen, 666 F.2d at 65; Matos v. Secretary of Health, Educ. & Welfare, 581 F.2d 282, 286 (1st Cir. 1978) (a res judicata dismissal without a hearing was not a "final decision" for purposes of § 205(g)).

 Respecting the Appeals Council's refusal to reopen the prior determination, Novak contends that the Appeals Council applied the wrong standard. The ...


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