1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-8-1998

Fitzgerald v. Apfel

Precedential or Non-Precedential:

Docket 97-1605

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Recommended Citation

"Fitzgerald v. Apfel" (1998). 1998 Decisions. Paper 135.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/135
Filed June 8, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1605 

KATHLEEN FITZGERALD, 

 Appellant 

v. 

KENNETH S. APFEL* 

Commissioner of Social Security 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civ. No. 97-cv-2508) 

Argued: March 13, 1998 

Before: Stapleton, and Alito, Circuit Judges, and O'Kelley, 

Senior District Judge** 

(Opinion Filed: June 8, 1998) 

 Robert Savoy (Argued) 

 Three Neshaminy Interplex, 

 Suite 301 

 Trevose, PA 19053 

 Counsel for Appellant 

_________________________________________________________________ 

* Kenneth S. Apfel was sworn in as Commissioner of Social Security on 

September 29, 1997. Pursuant to Rule 43(c)(1) of the Federal Rules of 

Appellate Procedure, Kenneth S. Apfel is substituted for John J. 

Callahan as the defendant in this suit. 

** The Honorable William O'Kelley, United States Senior District Judge 

for the Northern District of Georgia, sitting by designation. 
 Michael R. Stiles, U.S. Attorney 

 Eastern District of Pennsylvania 

 Joan K. Garner, Ass't U.S. Attorney 

 Deputy Chief, Civil Division 

 Arthur J. Fried, General Counsel 

 Charlotte Hardnett, Principal Deputy 

 General Counsel 

 John M. Sacchetti, Acting Associate 

 General Counsel 

 M. Ashley Harder (Argued) 

 Office of the General Counsel 

 Social Security Administration 

 6401 Security Boulevard 

 Room 651 Altmeyer Building 

 Baltimore, Maryland 21235 

 Counsel for Appellee 

OPINION OF THE COURT 

ALITO, Circuit Judge: 

Appellant Kathleen Fitzgerald appeals from the dismissal 

of her complaint against Kenneth S. Apfel, the 

Commissioner of Social Security, by the district court. The 

district court held that: it lacked subject matter jurisdiction 

over her claim for benefits; interim benefits were not 

authorized by statute; and Fitzgerald's due process claim 

failed on the merits. On appeal, Fitzgerald argues that the 

district court erred in concluding that interim benefits are 

unavailable and that her due process claim failed to state 

a claim upon which relief could be granted. Because we 

find that the district court did not have jurisdiction over 

Fitzgerald's claim for interim benefits, we will affirm the 

dismissal of her complaint.1 

_________________________________________________________________ 

1. Although Fitzgerald did not raise the issue on appeal, we note that the 

district court correctly determined that it lacked jurisdiction over her 

claim for disability benefits for the same reasons as it lacked 

jurisdiction 

over her claim for interim benefits, as will be discussed infra. 

 2 
I. 

Kathleen Fitzgerald applied for supplemental social

security income and disability insurance benefits on July 

16, 1993, and August 31, 1993, respectively. Fitzgerald's 

claims were denied initially and on reconsideration. 

Fitzgerald filed a timely request for a hearing on October 

24, 1994. 

A hearing was held before an administrative law judge 

("ALJ") on July 18, 1995. The ALJ issued a decision on 

March 18, 1996, finding that Fitzgerald was not disabled. 

On March 20, 1996, Fitzgerald requested review from the 

Appeals Council. In her letter to the Appeals Council, 

counsel requested that "this claim be treated as one 

involving CRITICAL NEED and that the matter raised below 

be considered as expeditiously as possible." (App. at 8). 

Counsel did not elaborate on this request. 

On November 29, 1996, Fitzgerald's counsel sent another 

letter to the Appeals Council, stating that "[m]y client 

Kathleen Fitzgerald is in desperate financial need. I 

requested review on her behalf more than eight months 

ago. I have heard nothing from you about the matter." (App. 

at 10). Having not heard from the Appeals Council, 

Fitzgerald began the present action on April 16, 1997.2 

In her complaint, Fitzgerald alleged that she was disabled 

and entitled to disability insurance benefits and 

supplemental security income. She further alleged that she 

was in dire financial straits due to the extensive delay in 

deciding her application. Fitzgerald claimed that the failure 

of the Appeals Council to rule on her request for more than 

a year, despite the fact that she had informed them that 

she was destitute, constituted a constructive denial of her 

claim. She further alleged that the unreasonable delay 

violated her Due Process rights under the Fifth Amendment 

and the Social Security Act. Fitzgerald requested as relief: 

_________________________________________________________________ 

2. On June 27, 1997, the Appeals Council remanded Fitzgerald's 

application to the ALJ for further proceedings. A hearing was held on 

November 14, 1997. Fitzgerald's application was again denied on 

February 2, 1998. Counsel requested review by the Appeals Council on 

February 4, 1998. That request is still pending. 

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that the district court find that she was entitled to the 

benefits sought; interim benefits during the pendency of 

any further proceedings; and "such other relief as the court 

finds just and proper." (App. at 7). Fitzgerald filed a motion 

requesting interim benefits on May 2, 1997. 

On July 24, 1997, the district court issued an order 

denying the motion for interim benefits. See Fitzgerald v. 

Callahan, No. Civ. A. 97-2508, 1997 WL 438483 (E.D. Pa. 

July 24, 1997). The district court held that interim benefits 

were not provided for by statute and that it lacked the 

equitable power to grant them. The court also dismissed 

Fitzgerald's claim for benefits for lack of subject matter 

jurisdiction, since she failed to exhaust her administrative 

remedies. Finally, the court found that Fitzgerald's due 

process claim failed to state a claim upon which relief could 

be granted. This appeal followed. 

II. 

On appeal, Fitzgerald argues that the district court erred 

in determining that interim benefits were not available and 

that her due process claim failed as a matter of law. She 

apparently concedes that the district court lacked 

jurisdiction over her claim of entitlement to final benefits. 

Because we find that the district court lacked jurisdiction 

to consider the availability of interim benefits, we need not 

decide whether such benefits are precluded by statute. 

Jurisdiction over Social Security benefits cases is

provided by 42 U.S.C. S 405(g), which provides, in relevant 

part: "[a]ny individual, after any final decision of the 

Secretary made after a hearing to which he was a party . . . 

may obtain a review of such decision by a civil action . . . ." 

Ordinarily, judicial review is barred absent a "final decision" 

by the Commissioner of Social Security. Mathews v. 

Eldridge, 424 U.S. 319, 328 (1976). 

A final decision is "central to the requisite grant of 

subject matter jurisdiction." Id. The Supreme Court has 

stated that the "final decision" requirement 

 consists of two elements, only one of which is purely 

 "jurisdictional" in the sense that it cannot be waived by 

 4 
 the Secretary in a particular case. The waivable 

 element is the requirement that the administrative 

 remedies prescribed by the Secretary be exhausted. 

 The nonwaivable element is the requirement that a 

 claim for benefits shall have been presented to the 

 Secretary. 

Id. 

If a plaintiff 's claim is collateral to her claim for benefits, 

exhaustion may be waived under certain circumstances. 

See Bowen v. City of New York, 476 U.S. 467, 483 (1986). 

"A claim is collateral if it is not essentially a claim for 

benefits." Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 

1993) (citing Bowen, supra). 

The district court lacked jurisdiction over Fitzgerald's 

claim for interim benefits both because she failed to present 

a demand for such benefits to the Commissioner and 

because her claim is not collateral to a claim for benefits. 

As to the former point, there is no indication in the record 

that Fitzgerald ever requested interim benefits from the 

Social Security Administration pending the outcome of the 

proceedings. Although she presented a general claim of 

disability, she did not address her claim of entitlement to 

interim benefits due to the excessive delay to the 

Commissioner. The failure to raise such a claim violates the 

nonwaivable jurisdictional aspect of exhaustion and is fatal 

to her claim. 

Furthermore, the district court lacked jurisdiction over 

Fitzgerald's claim for interim benefits because such a 

demand is not collateral to her claim for final benefits. 

Whether predicated on S 405(g) or on the due process 

clause, it is beyond cavil that interim benefits are linked to 

disability benefits. First, they are two forms of the same 

entitlement. More importantly, Fitzgerald's claim to interim 

benefits is linked to her entitlement to final benefits. 

Indeed, Fitzgerald repeatedly emphasized in her briefs and 

at argument that she was entitled to such benefits not just 

because of the extensive delay, but also because of her 

indigency and the merits of her case. Cf. Bush v. Shalala, 

94 F.3d 40, 46 (2d Cir. 1996) ("absent a finding that the 

claimant was actually disabled, delay alone is an 

 5 
insufficient basis on which to remand for benefits;" 

discussing Kelly v. Railroad Ret. Bd., 625 F.2d 486, 491 (3d 

Cir. 1980)). Since we are unable to separate the merits of 

her claim for interim benefits from her claim forfinal 

disability benefits, the district court lacked jurisdiction to 

hear her claim for interim benefits absent a final decision 

by the Commissioner. Her motion was thus properly denied.3 

Because we have determined that the federal courts lack 

jurisdiction to consider Fitzgerald's interim benefits claim, 

we need not decide whether such benefits are available 

under the Social Security statutory regime. 

The district court may well have had jurisdiction over 

Fitzgerald's due process claim to the extent that she sought 

some other form of relief. In her complaint, Fitzgerald 

added a general request for "such other relief as the court 

finds just and proper" to her demands for final and interim 

benefits. We do not understand her to be asking for other 

equitable remedies such as injunctive relief mandating that 

the SSA promptly decide her application. No such request 

appeared in either her complaint or her appellate briefs. 

Counsel did indicate at argument that to the extent the 

Court denied Fitzgerald the relief that she sought, she 

would welcome some other form of equitable relief. 

Nevertheless, even if such a claim had been properly raised 

to the Court, it would be inappropriate in the present case. 

Although Fitzgerald's request for review by the Appeals 

Council had been pending for thirteen months at the time 

she filed the instant action, the Appeals Council 

subsequently ordered a remand to the ALJ. The ALJ 

rendered an unfavorable decision on February 4, 1998, and 

Fitzgerald's request for review is currently before the 

_________________________________________________________________ 

3. We note that in those cases where the court discussed the availability 

and appropriateness of interim benefits in initial determination cases, 

the court had jurisdiction under S 405(g) because, unlike the instant 

appeal, the Commissioner had rendered a final decision. See, e.g. 

Doughty v. Bowen, 839 F.2d 644 (10th Cir. 1988); Taylor v. Heckler, 769 

F.2d 201 (4th Cir. 1985); Saltares v. Bowen, 711 F. Supp. 162 (S.D.N.Y. 

1989); Davenport v. Bowen, 709 F. Supp. 634 (E.D. Pa. 1989); MasonPage v. Bowen, 655 F. Supp. 255 (D.N.J. 1987); Weiser v. Secretary, 

HHS, 645 F. Supp. 602 (S.D.N.Y. 1986); Dandeneau v. Heckler, 607 F. 

Supp. 583 (D. Me. 1985). 

 6 
Appeals Council. Under this factual scenario, individualized 

injunctive relief is unwarranted. 

III. 

We have considered Fitzgerald's arguments and we 

conclude that the district court lacked jurisdiction to 

consider her request for interim benefits. Because 

Fitzgerald's application is currently proceeding in a 

relatively timely manner before the Social Security

Administration, other forms of injunctive relief are 

inappropriate. The judgment of the district court is 

therefore affirmed.4 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

4. Because we have limited our discussion to the jurisdictional aspects 

of this action, nothing in this opinion should be construed as expressing 

a view as to the merits of Fitzgerald's disability claim, or as to the 

availability of interim benefits in an appropriate case when the district 

court properly has jurisdiction. 

 7