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# F it z ge r ald v . Apfel

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-1605

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### R e c omme nde d C it a t ion

" F itz g e r ald v

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. e du/thir dc ir c uit_1998/135Filed 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 th e Federal Rules of Appellate Procedure, Kenneth S. Apfel is substitute d for John J.
Callahan as the defendant in this suit.

** The Honorable William O'Kelley, United States Se nior District Judge for the Northern District of Georgia, sitting by de signation.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 dism issal of her complaint against Kenneth S. Apfel, the Commissioner of Social Security, by the district co urt. 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 ben efits are unavailable and that her due process claim failed t o state a claim upon which relief could be granted. Because we find that the district court did not have jurisdict ion over Fitzgerald's claim for interim benefits, we will af firm the dismissal of her complaint.1

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1. Although Fitzgerald did not raise the issue on a ppeal, 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 dis cussed infra.

2I.

Kathleen Fitzgerald applied for supplemental social security income and disability insurance benefits o n July 16, 1993, and August 31, 1993, respectively. Fitzge rald'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 jud ge ("ALJ") on July 18, 1995. The ALJ issued a decision on March 18, 1996, finding that Fitzgerald was not dis abled. On March 20, 1996, Fitzgerald requested review from the Appeals Council. In her letter to the Appeals Counc il, counsel requested that "this claim be treated as on e 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 ano ther letter to the Appeals Council, stating that "[m]y c lient Kathleen Fitzgerald is in desperate financial need. I requested review on her behalf more than eight mont hs 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, 19 97.2

In her complaint, Fitzgerald alleged that she was d isabled and entitled to disability insurance benefits and supplemental security income. She further alleged t hat she
was in dire financial straits due to the extensive delay in deciding her application. Fitzgerald claimed that t he failure of the Appeals Council to rule on her request for m ore than a year, despite the fact that she had informed them that she was destitute, constituted a constructive denia l of her claim. She further alleged that the unreasonable de lay violated her Due Process rights under the Fifth Ame ndment and the Social Security Act. Fitzgerald requested a s relief:

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2. On June 27, 1997, the Appeals Council remanded F itzgerald's application to the ALJ for further proceedings. A h earing was held on November 14, 1997. Fitzgerald's application was aga in denied on February 2, 1998. Counsel requested review by the A ppeals Council on February 4, 1998. That request is still pending.

3that the district court find that she was entitled to the

benefits sought; interim benefits during the penden cy of any further proceedings; and "such other relief as the court finds just and proper." (App. at 7). Fitzgerald fil ed a motion requesting interim benefits on May 2, 1997.

On July 24, 1997, the district court issued an orde r denying the motion for interim benefits. See Fitzge rald v. Callahan, No. Civ. A. 97-2508, 1997 WL 438483 (E.D. Pa. July 24, 1997). The district court held that interi m benefits were not provided for by statute and that it lacked the equitable power to grant them. The court also dismi ssed Fitzgerald's claim for benefits for lack of subject matter jurisdiction, since she failed to exhaust her admin istrative remedies. Finally, the court found that Fitzgerald' s due process claim failed to state a claim upon which re lief could be granted. This appeal followed.

II.

On appeal, Fitzgerald argues that the district cour t erred in determining that interim benefits were not avail able and that her due process claim failed as a matter of la w. 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 juri sdiction to consider the availability of interim benefits, w e need not decide whether such benefits are precluded by statu te.

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 o f the Secretary made after a hearing to which he was a pa rty . . . may obtain a review of such decision by a civil act ion . . . ." Ordinarily, judicial review is barred absent a "fin al 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

4the Secretary in a particular case. The waiv able

element is the requirement that the administ rative remedies prescribed by the Secretary be exha usted. The nonwaivable element is the requirement t hat 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 circumstance s. See Bowen v. City of New York, 476 U.S. 467, 483 (1 986). "A claim is collateral if it is not essentially a c laim for benefits." Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993) (citing Bowen, supra).

The district court lacked jurisdiction over Fitzger ald'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 t he record that Fitzgerald ever requested interim benefits fro m 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 entitl ement to interim benefits due to the excessive delay to the
Commissioner. The failure to raise such a claim vio lates 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 suc h a
demand is not collateral to her claim for final ben efits. Whether predicated on S 405(g) or on the due proces s clause, it is beyond cavil that interim benefits ar e linked to disability benefits. First, they are two forms of t he same entitlement. More importantly, Fitzgerald's claim t o interim
benefits is linked to her entitlement to final bene fits. Indeed, Fitzgerald repeatedly emphasized in her bri efs 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. S halala, 94 F.3d 40, 46 (2d Cir. 1996) ("absent a finding th at the claimant was actually disabled, delay alone is an

5insufficient 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 me rits of
her claim for interim benefits from her claim forfi nal disability benefits, the district court lacked juri sdiction to
hear her claim for interim benefits absent a final decision by the Commissioner. Her motion was thus properly d enied.3
Because we have determined that the federal courts lack jurisdiction to consider Fitzgerald's interim benef its claim,
we need not decide whether such benefits are availa ble under the Social Security statutory regime.

The district court may well have had jurisdiction o ver Fitzgerald's due process claim to the extent that s he sought some other form of relief. In her complaint, Fitzge rald added a general request for "such other relief as t he 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 mandat ing that the SSA promptly decide her application. No such re quest appeared in either her complaint or her appellate b riefs. 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 properl y raised to the Court, it would be inappropriate in the pres ent case. Although Fitzgerald's request for review by the App eals 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, 199 8, and Fitzgerald's request for review is currently before the

___________________________________________________ ______________

3. We note that in those cases where the court disc ussed 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 decis ion. See, e.g. Doughty v. Bowen, 839 F.2d 644 (10th Cir. 1988); Ta ylor 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. P a. 1989); MasonPage v. Bowen, 655 F. Supp. 255 (D.N.J. 1987); Weis er v. Secretary, HHS, 645 F. Supp. 602 (S.D.N.Y. 1986); Dandeneau v. Heckler, 607 F. Supp. 583 (D. Me. 1985).

6Appeals Council. Under this factual scenario, indiv idualized

injunctive relief is unwarranted.

III.

We have considered Fitzgerald's arguments and we conclude that the district court lacked jurisdictio n 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 ar e inappropriate. The judgment of the district court i s 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 ju risdictional aspects of this action, nothing in this opinion should be c onstrued 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.

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