Hennings v. Heckler

• Decision Date: 31 January 1985
• Docket Number: No. 84 C 0240.,84 C 0240.
• Parties: Erika HENNINGS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

601 F. Supp. 919

Erika HENNINGS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

No. 84 C 0240.

United States District Court, N.D. Illinois, E.D.

January 31, 1985.

David R. Bryant, Chicago, Ill., for plaintiff.

Dan K. Webb, U.S. Atty., Gail C. Ginsberg, Asst. U.S. Atty., Chicago, Ill. (Randolph W. Gaines, Mary Beth McNamara, Dept. of Health and Human Services, Baltimore, Md., of counsel), for defendant.

MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

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.

Background

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 denied 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 "new 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 September 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.

Discussion

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 § 405(g).

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 "hearings 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...