NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT DRAKE EWBANK,

Plaintiff

- Appellant,

v.

ANDREW M. SAUL , Commissioner Social Security Administration,

Defendant

- Appellee. No. 18

- 35831

D.C. No. 6:16

- cv

- 00117

- JE

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Submitted November 9 , 2020 * *

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Robert Drake Ewbank appeals pro se from the district court’s judgment

affirming in part and dismissing in part his challenges arising from the Social

Security Administration’s (“SSA”) recoup ment of an alleged overpayment of

Supplemental Security Income (“SSI”) benefits

. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

NOV 18 2020

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 18

- 35831

U.S.C. § 1291. We review de novo. Dexter v. Colvin , 731 F.3d 977, 980 (9th

Cir. 2013) ( dismissal for lack of subject matter jurisdiction ); Planned Parenthood

of S. Ariz. v. Lawall , 307 F.3d 783, 786 (9th Cir. 2002) (constitutionality of a

statute). We affirm in part, vacate in part, and remand.

The administrative law judge (“ ALJ ”) properly den ied Ewbank’s claim that

deprivation o f his soci al security benefits for the time he was out of the United

States pursuant to 42 U.S.C. § 1382(f) was unconstitutional. See Califano v.

Aznavorian , 439 U.S. 170, 174

- 75 (1978) (holding that the limitations set forth in

§ 1382(f) do not violate the equal p rotection clause or impermissibly infringe on

the right to international travel).

The district court properly dismissed for lack of subject matter jurisdiction
Ewbank’s claim that the SSA discriminated against him in violation of the

Rehabilitation Act b ecause Ewbank failed to exhaust his administrative remedies

as to this claim

. See 42 U.S.C. § 405(g); Klemm v. Astrue , 543 F.3d 1139, 1144

(9th Cir. 2008) (explaining the Social Security Act only grants the court

jurisdiction to review final decisions of the Commissioner)

.
The district court dismissed for lack of subject matter jurisdiction Ewbank’s

clai m that the SSA improperly recoup ed alleged SSI benefit overpayments without

addressing his waiver request after concluding that Ewbank’s actio n involved only
the ALJ’s September 22, 2014 decision , in which the ALJ found that Ewbank’s3 18

- 35831

claim was not properly presented to the SSA field office . However, Ewbank’s

amended complaint challenged the ALJ’s subsequent September 20, 2016 decision

resolving Ewbank ’s request for a waiver of this recoupment. Accordingly, w e

vacate the district court ’s dismissal of Ewbank’s claim that the SSA improperly

recouped the overpayment of benefits, and remand for the district court to consider

in the first instance if the district court has subject matter jurisdiction to review the
ALJ’s September 20, 2016 decision and, if so, the effect, if any, of the 2016 ALJ

decision on Ewbank’s challenge to the SSA’s recoupment of the overpayment of

benefits

. The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.