Taylor v. Barnhart, 04-1132.

• Decision Date: 03 March 2005
• Docket Number: No. 04-1132.,04-1132.
• Citation: 399 F.3d 891
• Parties: Simone R. TAYLOR, Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 891

399 F.3d 891

Simone R. TAYLOR, Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Appellee.

No. 04-1132.

United States Court of Appeals, Eighth Circuit.

Submitted: September 17, 2004.

Filed: March 3, 2005.

Harvey L. McCormick, argued, Kansas City, MO, for appellant.

Mark S. Naggi, Asst. U.S. Attorney, argued, Kansas City, MO, for appellee.

Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.

COLLOTON, Circuit Judge.

Simone R. Taylor sought a writ of mandamus to compel the Social Security Administration ("SSA") to pay benefits to which she claims entitlement. The district court¹ denied her motion. We affirm, although we note that an unexplored avenue of possible relief for Taylor remains available.

I.

Taylor was born in the United Kingdom in 1974 and remains a British citizen. She was adopted by citizens of the United States — an American serviceman and his wife — in the United Kingdom in 1984, and she moved to the United States with her adoptive family that year. According to photocopied documents included in the record, Taylor entered the United States on August 13, 1984. Her adoptive father filed a "Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa," listing Taylor as a beneficiary. The petition was approved in September 1984, and Taylor was thus classified as an "immediate relative" of a United States citizen. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a).

The visa petition records the date that Taylor's stay would expire as "indefinite," and states that "[b]eneficiary is in the United States and will apply for adjustment of status to that of a lawful permanent resident in the office of the Immigration and Naturalization Service at Kansas City, Missouri." A "Notice of Approval of Relative Immigrant Visa Petition," dated October 19, 1984, and completed by the Immigration and Naturalization Service in Kansas City, states that Taylor's adoptive father should "contact the above office for further information concerning the beneficiary's adjustment of status." The record includes no evidence concerning whether Taylor or anyone acting on her behalf ever applied for adjustment of status.

On June 28, 1998, Taylor filed an application for disability insurance benefits under Title II of the Social Security Act ("The Act"). Taylor's application was initially denied, but after a hearing, an administrative law judge ("ALJ") found that Taylor was disabled.

In November 1999, the SSA wrote to Taylor explaining that her application for disability benefits had been approved, but that the SSA could not pay her benefits for any month in which she was not lawfully present in the United States. This letter presumably was designed to implement a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which limits the eligibility of aliens for benefits under the subchapter of the Social Security Act that governs disability benefits. The statute provides that "[n]otwithstanding any other provision of law, no monthly benefit under this subchapter shall be payable to any alien in the United States for any month during which such alien is not lawfully present in the United States as determined by the Attorney General." 42 U.S.C. § 402(y) (emphasis added). The November 1999 letter to Taylor explained that based on the information available to the SSA, Taylor did not meet the lawful presence requirement.

Two months later, as a follow-up to the decision of the ALJ, the SSA sent a second letter to Taylor seeking further information to establish the months in which she worked during her period of disability. That letter also reminded Taylor that in order to receive benefit checks, she must furnish the SSA with documents to show that she was legally admitted to the United States.

Taylor responded in January 2000 with a legal memorandum to the SSA, arguing that the restrictions on benefits for non-qualified aliens did not apply to her. The record shows that in March 2000, the SSA explained to Taylor's attorney that no determination had been made regarding Taylor's lawful presence in the United States, and that Taylor must submit original immigration documents to demonstrate her lawful presence.

A subsequent review of Taylor's records by the SSA's Office of Disability and International Operations ("ODIO") raised concern about whether she had engaged in substantial gainful activity since the onset of her disability (which would render her ineligible for benefits, 20 C.F.R. § 404.1520(b)), so on September 22, 2000, ODIO requested that the SSA Appeals Council review the decision. The SSA sent Taylor another letter explaining that it was suspending benefits pending further investigation of her earnings for 1997 through 1999 and proof of her citizenship or lawful presence. The Appeals Council reopened the decision with respect to whether Taylor had engaged in any substantial gainful activity from 1997 through 1999, and remanded Taylor's case to a different ALJ for consideration of that question.

ALJ James Stubbs sent Taylor a letter explaining the issues to be considered at the second hearing. These issues did not include the question of Taylor's lawful presence in the United States. The ALJ invited Taylor to submit a written response if she objected to the statement of issues. In response, Taylor submitted a memorandum arguing that the restrictions on payments to non-qualified aliens did not apply to her.

After a hearing to determine whether Taylor had engaged in substantial gainful activity since the onset of her disability, the ALJ found that Taylor was disabled as alleged, but engaged in substantial gainful activity for four months after the onset of her disability. The ALJ did not make any findings on her lawful presence in the United States.

Taylor then petitioned the district court in March 2003 for a writ of mandamus compelling the Commissioner of Social Security to pay past-due benefits. The district court granted the Commissioner's motion to dismiss, finding that the SSA acted in accordance with its procedures, that the decision of the ALJ did not entitle Taylor to benefits because immigration requirements were not decidedly within the purview of the ALJ, and that Taylor failed to show that she was lawfully residing in the United States.

II.

The district courts have original jurisdiction over any mandamus action "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. "[T]he writ of mandamus is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Hatcher v. Heckler, 772 F.2d 427, 432 (8th Cir.1985). Stated differently, "[a] party seeking issuance of a writ of mandamus must `have no other adequate means to attain the relief he desires and [must show that his] right to issuance of the writ is clear and undisputable.'" In re Mo. Dep't of Natural Res., 105 F.3d 434, 436 (8th Cir.1997) (alteration in original) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam)).

Taylor argues that the SSA has a clear duty to pay her benefits under the Social Security Act. Taylor acknowledges that an alien who is not a "qualified alien" within the meaning of 8 U.S.C. § 1641 generally is ineligible to receive any federal public benefits. 8 U.S.C. § 1611(a). Taylor observes, however, that this general rule "shall not apply ... to any benefit if nonpayment of such benefit would contravene an international agreement described in section 233 of the Social Security Act." 8 U.S.C. § 1611(b)(2). Taylor claims that the Agreement on Social Security Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, Feb. 13, 1984, U.S.-U.K., T.I.A.S. No. 11,086 (the "Agreement"), entitles her to benefit payments.

Section 233 of the Social Security Act authorizes the President to enter into agreements establishing totalization arrangements between the United States social security system and the social security system of a foreign country. 42 U.S.C. § 433(a). Such an agreement is not a treaty ratified by the United States Senate, pursuant to Article II, Section 2 of the Constitution. Rather, the Act provides that such an agreement shall become effective on the date specified in the agreement, provided that the date occurs a sufficient period of time after the President transmits the agreement to the Congress, and neither House of Congress has adopted a resolution disapproving the agreement. 42 U.S.C. § 433(e)(2); but see INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). The declared purpose of these agreements is to establish "entitlement to and the amount of ... benefits based on a combination of an individual's periods of coverage under the [United States] social security system ... and the social security system of such foreign country." 42 U.S.C. § 433(a).

In 1984, the United States entered into the Agreement on Social Security with the United Kingdom. While Taylor never worked in the United Kingdom, and thus does not require a totalization of periods of coverage under separate social security systems, the authorizing statute also provides that "[a]ny such agreement may contain other provisions which are not inconsistent with the other provisions of this subchapter and which the President deems appropriate to carry out the purposes of this section." 42 U.S.C. § 433(c)(4). Taylor contends that one such "other provision," Article 3 of the Agreement, supports her claim to benefits. Article 3 provides:

[a] person who is or has been subject to the laws of one Party and who resides within the territory of the other Party shall, together with his dependants, receive equal treatment with nationals of the other Party in the...