*As of March 31, 1995, the Social Security Administration

became an independent agency from the Department of

Health and Human Services. Therefore, the court has

substituted Shirley S. Chater for Donna E. Shalala

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 District

1

Judge for the Eastern District of Missouri, adopting the report and

recommendations of the Honorable Catherine D. Perry, then United

States Magistrate Judge for the Eastern District of Missouri, now

United States District Judge for the Eastern District of Missouri.

-2-

Robert Lee Rowden appeals from the final order of the District Court1

for the Eastern District of Missouri, dismissing for failing to exhaust his

administrative remedies his claim against the Social Security

Administration (SSA) concerning his continued receipt of disability

benefits while incarcerated. We affirm. 

When Rowden first applied for disability benefits in 1989, he signed

a statement agreeing to notify the SSA if he were imprisoned for conviction

of a felony. Rowden was awarded disability benefits in 1990 due to a heart

impairment, and was convicted of a felony in October 1992. He did not

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 Rowden

that his benefits were suspended effective October 1992, and that he owed

$5,334.60 in overpayment. On June 8, Rowden submitted a request for a

waiver of collection of overpayment. The SSA denied Rowden's waiver

request, concluding Rowden was not without fault in causing the

overpayment. After a personal conference, the SSA notified Rowden on May

25, 1994, that the decision to deny waiver of overpayment was correct, and

informed Rowden he had sixty days to request a review by an Administrative

Law Judge (ALJ). Rowden did not do so.

Rowden initiated a civil rights action against the SSA, claiming his

disability benefits were wrongly terminated. The district court,

construing the complaint as asserting jurisdiction under 42 U.S.C.

§ 405(g), dismissed it as frivolous because Rowden did not assert that he

was participating in an approved
 The rehabilitation exception has been eliminated for benefits 2

paid beginning February 1995. See Social Security Domestic

Employment Reform Act of 1994, Pub. L. No. 103-387, § 4, 1994

U.S.C.C.A.N. (108 Stat.) 4071, 4076.

-3-

rehabilitation program. See 42 U.S.C. § 402(x)(1). Because Rowden had

2

attempted to amend his complaint to allege that he was attending

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 Sexual

Offenders Program. 

 The SSA did not respond to the amended complaint for five months

because Rowden served an SSA employee, not the proper party. Once notified

of the pending action, the SSA moved to dismiss. The district court then

granted the SSA's motion, concluding that the court lacked subject matter

jurisdiction because Rowden had failed to exhaust his administrative

remedies by requesting a hearing before an ALJ. Rowden unsuccessfully

sought reconsideration, arguing his failure to exhaust was not intentional,

the SSA did not inform him of his rights or obligation to appeal

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 administrative

remedies, he would have complied. Similarly, he argues that had the court

pointed out the exhaustion problem rather than dismiss his initial

complaint as frivolous, he also would have filed a timely request for

hearing. The SSA argues that any delay in the SSA answering the complaint

was caused by Rowden's failure to properly serve the agency and thus the

SSA is not responsible for Rowden's failure to exhaust his administrative

remedies. 

Rowden may seek judicial review of the Secretary's decision in this

case only after a final 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 requested

a hearing before an ALJ to appeal either the decision to terminate his

benefits or to deny a waiver of his overpayment, Rowden did not exhaust his

administrative remedies. See 20 C.F.R. §§ 404.929 - .933 (request for

hearing before ALJ); 404.967 (Appeals Council review); 404.981 (judicial

review). Although the exhaustion requirement may be waived in certain

limited circumstances, see Rodabaugh v. Sullivan, 943 F.2d 855, 857 (8th

Cir. 1991), Rowden has not met those conditions. 

In addition, Rowden may not assert estoppel, based on his assertion

that the district court and the SSA failed to inform him earlier of his

need to exhaust his administrative remedies. Estoppel against the

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.