### *As of March 31, 1995, the Social Security Administratio n

became an independent agency from the Department o f He alth and Human Services. Therefore, the court ha s sub stituted Shirley S. Chater for Donna E. Shalal a pursuant to Fed. R. App. P. 43(c). ___________ No. 93-3553

___________ Robert Lee Rowden, * * Appellant, * * v. * * Janice L. Warden; Social * Security Administration, * * Appellees. *

___________ Appeals from the United States No. 95-1442 District Court for the

___________ Eastern District of Missouri Robert Lee Rowden, * * Appellant, * * v. * * Shirley S. Chater, Commissioner * of the Social Security * Administration, * * * Appellee. *

___________ Submitted: September 28, 1995 Filed: July 17, 1996

___________ Before McMILLIAN, BRIGHT and MAGILL, Circuit Judges.

___________ McMILLIAN, Circuit Judge.

### The Honorable Stephen N. Limbaugh, United States Distric t 1 

### Judge for the Eastern District of Missouri, adopting the rep ort and recomm endations of the Honorable Catherine D. Perry, then Unite d States Magistrate Judge for the Eastern District of Missouri, now United States District Judge f or the Eastern District of Missouri. -2- Robert Lee Rowden appeals from the final order of th e District Court 1 for the Eastern District of Missouri, dismissing for failing to exhaust hi s ad ministrative remedies his claim against the Social Securit y Ad ministration (SSA) concerning his continued receipt of disabilit y benefits while incarcerated. We affirm.
When Rowden first applied for disabi lity benefits in 1989, he signed
a statement agreeing to notify the SSA if he were imprisoned for convictio n of a felony. Rowden was awarded disability benefits in 1990 due to a hear t impairme nt, and was convicted of a felony in October 1992. He did no t inform the SSA of his conviction. In March 1993, the SSA notified Rowden that it had learned of his conviction. In May, the SSA informed Rowde n that his benefits wer e suspended effective October 1992, and that he owed $5,334.60 in overpayment. On June 8, Rowden submitted a request for a waiv er of collection of overpayment. The SSA denied Rowden's waive r reques t, concluding Rowden was not without fault in causing th e overpayment. After a personal conference, the SSA notified Rowden on May 25, 1994, that the decision to deny waiver of ov erpayment was correct, and informed Rowden he had sixty days to request a r eview by an Administrative Law Judge (ALJ). Rowden did not do so.
Rowden initiated a civil rights acti on against the SSA, claiming his dis ability benefits were wrongly terminated. The district court , construing the complaint as asserting jurisdiction under 42 U.S.C
. § 405(g), dismissed i t as frivolous because Rowden did not assert that he was participating in an approved

### The rehabilitation exception has been eli minated for benefits 2 

### paid beginning February 1995. See Social Security Domesti c Employment Reform Act of 1994, Pub. L. No. 103-387, § 4, 199 4 U.S.C.C.A.N. (108 Stat.) 4071, 4076. -3- rehabi litation program. See 42 U.S.C. § 402(x)(1). Because Rowden ha d 2 at tempted to amend his complaint to allege that he was attendin g rehabilitation, we remanded the case for further proceedings. Rowden v. Warden , No. 93-3553 (8th Cir. Nov. 19, 1993) (order). On remand, Rowden amended his complaint asserting he was participating in the Missouri Sexua l Offenders Program.

The SSA did not respond to the amended complaint for five month s because Rowden served an SSA employee, not the proper party. Once notifie d of the pending action , the SSA moved to dismiss. The district court then granted the SSA's mot ion, concluding that the court lacked subject matter ju risdiction because Rowden had failed to exhaust his administrativ e remedies by requesting a hearing before an ALJ. Rowden unsuccessfull y sought reconsideration, arguing his failure to exhaust was not intentional , the SS A did not inform him of his rights or obligation to appea l administratively, and prison officials mishandled his mail.
On appeal , Rowden argues that, but for the SSA's delay in informing him during the litigation that he had to exhaust his administrativ e remedies, he would have complied. Similarly, he argues that had the court pointe d out the exhaustion problem rather than dismiss his initia l complaint as frivolous, he also would have filed a timely request fo r hearing. The SSA argues that any delay in the S SA answering the complaint
was caused by Rowden's failure to properly serve the agency and thus the SSA is not responsibl e for Rowden's failure to exhaust his administrative remedies.

Rowden ma y seek judicial review of the Secretary's decision in this case only after a fin al decision by the Secretary "made after a hearing." 42 U.S.C. § 405(g); see Medellin v. Shalala , 23 F.3d

### -4-

199, 202 nn.4-5 (8th Cir. 1994). Because Rowden has not shown he requeste d
a hearing before an ALJ to appeal either the decision to terminate hi s benefits or to deny a waiver of his overpayment, Rowden did not exhaust hi s admin istrative remedies. See 20 C.F.R. §§ 404.929 - .933 (request fo r hearing before ALJ); 404.967 (Appeals Council review); 404.981 (judicial review). Although the exhaustion requirement may be waived in certai n limited circumstances, see Rodabaugh v. Sullivan , 943 F.2d 855, 857 (8th Cir. 1991), Rowden has not met those conditions.

In additi on, Rowden may not assert estoppel, based on his assertion that th e district court and the SSA failed to inform him earlier of hi s need t o exhaust his administrative remedies. Estoppel against th e government requires a showing of affirmative misconduct, which Rowden has not shown here. See Olsen v. United States , 952 F.2d 236, 241 & n.2 (8th Cir. 1991) (test for estoppel). Thus, absent grounds to excuse exhaustion , the district court was bound to dismiss for lack of jurisdiction.
Accordingly, we affirm.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.