Bagby v. Harris, 79-3746

• Decision Date: 05 June 1981
• Docket Number: No. 79-3746,79-3746
• Citation: 650 F.2d 836
• Parties: Maxine S. BAGBY, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 836

650 F.2d 836

Maxine S. BAGBY, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 79-3746.

United States Court of Appeals, Sixth Circuit.

Argued April 3, 1981.

Decided June 5, 1981.

W. David Klingman, Sanford L. Berman, Frockt & Klingman, Louisville, Ky., for plaintiff-appellant.

Albert Jones, J. Michael Deep, Asst. U. S. Atty., Louisville, Ky., Robert S. Greenspan, Civil Division, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before WEICK and BOYCE F. MARTIN, Jr., Circuit Judges, and PHILLIPS, Senior Circuit Judge.

WEICK, Circuit Judge.

Appellant Bagby has appealed to this court from a judgment of the district court dismissing her complaint to review a decision of the Secretary who denied her social security disability benefits on the ground that it was barred by res judicata because of her failure to appeal from a previous decision of the Secretary denying the same claim about two years previously. We are of the opinion that the Secretary acted correctly and in accordance with law. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Nor did the district judge abuse his discretion in denying appellant's motion to amend her complaint.

In denying appellant's motion for leave to amend and dismissing her complaint, Chief Judge Charles M. Allen in his Memorandum Opinion stated:

Plaintiff brought this action for review of dismissal of plaintiff's application for disability insurance benefits. The matter is now before the Court on defendant's motion to dismiss, and on plaintiff's motion for leave to file an amended complaint.

In her proposed amended complaint, plaintiff alleges jurisdiction on constitutional grounds. Having carefully analyzed this proposed pleading, however, we fail to see allegation of any facts which would support a claim of constitutional violation. Plaintiff does not allege that she was denied a hearing, but rather that she failed to take advantage of the appeal process available to her. Similarly, she does not allege that she was denied the right to have counsel present at a hearing, but rather that a hearing was conducted at which the plaintiff was not represented by counsel. Plaintiff does not allege that defendant failed to follow his regulations regarding reopening of final decisions, but rather that defendant failed to step outside his regulations to reopen the application on grounds of new information which was brought forth in an entirely separate proceeding for Supplemental Security Income benefits. None of these facts, if proved, would support a finding of denial of due process. It is our opinion that permitting the filing of the proposed amended complaint would constitute a futile effort, since that pleading would then be subject to dismissal for failure to state a claim upon which relief could be granted. The Court will not indulge in useless acts. Norbeck v. Davenport Community School District, 545 F.2d 63, 68 (8th Cir. 1976); Brookins v. Chrysler Corp., Dodge Main Division, 381 F.Supp. 563 (E.D.Mich.1974).

We turn, then, to the defendant's motion to dismiss. Plaintiff alleges facts indicating that a prior application for disability insurance benefits was not pursued to judicial review, and that a subsequent application covering the same time period was dismissed on grounds of administrative res judicata. These facts appear to bring plaintiff squarely within the scope of Califano v. Sanders, 430 U.S. 99 (97 S.Ct. 980, 51 L.Ed.2d 192) (1976), which held that 42 U.S.C. Sec. 405(g) and (h) constitute a bar to the maintenance of such suits. Upon this authority, we believe defendant's motion to dismiss to be well taken, and we are without jurisdiction to entertain this action.

An order in accordance herewith has this day been entered.

The complaint was not filed in the district court by appellant's attorney until February 12, 1979. It was obviously too late then to review the final decision of the Secretary denying appellant's initial application for Social Security disability benefits filed on November 1, 1973 and denied on June 16, 1975.

The Social Security Act contains provisions for the exclusive method of reviewing decisions of the Secretary which are contained in 42 U.S.C. § 405(g). That section expressly provides for judicial review of any decision of the Secretary by filing a civil action in the district court within 60 days after the mailing to the claimant of a notice of the decision of the Secretary which was fully complied with as shown by uncontroverted evidence. Section 42 U.S.C. § 405(h) provides that "the findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal or governmental agency, except as herein provided." In Califano v. Sanders, supra, page 108, 97 S.Ct. page 985, the Supreme Court stated:

Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims. Our duty, of course, is to respect that choice.

The Supreme Court further stated:

The Act and regulations thus create an orderly administrative mechanism, with district court review of the final decision of the Secretary, to assist in the original processing of the more than 7,600,000 claims filed annually with the Administration. Page 102, 97 S.Ct. page 982.

Ms. Bagby filed a second claim on August 7, 1977, which was denied initially and upon reconsideration. A request for hearing before an Administrative Law Judge was denied on September 29, 1975, and by the Appeals Council on January 31, 1979, on the basis of res adjudicata. There was no hearing before the Administrative Law Judge on the second application for benefits. There was nothing to review by the district court. Califano v. Sanders, supra.

In the complaint filed by her attorney in the district court on February 12, 1979, there was no claim that appellant's constitutional rights had been violated in the consideration by the Secretary of the two claims filed by Ms. Bagby. Her claim for alleged constitutional violation had apparently not been discovered by her attorneys at that time. The claim of constitutional violation was asserted for the first time in a motion filed by her attorney in the district court for leave to amend her complaint. In that motion she alleged for the first time:

That 42 U.S.C. 405(g) and 42 U.S.C. 405(h) and the regulations promulgated thereunder, are unconstitutional under the Fifth Amendment of the Constitution of...