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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DONALD GEORGE LINDEN,

Plaintiff,

v.

SOCIAL SECURITY ADMINISTRATION;

JO ANN B. BARNHART, Commissioner;

LESLIE S. WALKER, Regional Director, 

Northern California,

Defendants.

 /

CIV. S-04-2696 FCD PAN (GGH) PS

FINDINGS AND RECOMMENDATIONS

This action, in which plaintiff is proceeding pro se, was referred to this court

pursuant to E.D. Cal. L.R. 72-302(c)(21). On December 23, 2004, the court granted plaintiff’s

application to proceed in forma pauperis, authorized commencement of plaintiff’s civil action

and denied plaintiff’s request for appointment of counsel. 

On May 23, 2005, defendants moved to dismiss plaintiff’s complaint for lack of

subject matter jurisdiction (Fed. R. Civ. P. 12(b)(1)) or, alternatively, moved for summary

judgment (Fed. R. Civ. P. 56). The hearing scheduled for July 20, 2005, was vacated and the

matters submitted on the papers. E. D. Cal. L. R. 78-230(h). 

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 Social security retirement benefits are authorized and administered pursuant to 42 1

U.S.C. § 401 et seq., and 20 C.F.R., Part 404, Subparts A through 0. 

2

Plaintiff withdraws his complaint against Leslie S. Walker, Regional

Communications Director for the Social Security Administration (“SSA”), for whom plaintiff has

not provided proof of service of process. Defendants SSA and Social Security Commissioner Jo

Ann B. Barnhart concede adequate service of process. 

Accordingly, the court initially RECOMMENDS this action be dismissed as to

Leslie S. Walker. Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 12(b)(5).

BACKGROUND

Plaintiff asserts the suspension of his Title II social security retirement benefits1

while incarcerated was an unconstitutional ex post facto penalty in violation of his due process

and equal protection rights under the Civil Rights Act of 1964 and 42 U.S.C. § 1983. 

Defendants have submitted a declaration and pertinent records of Cheryl

Jacobson, Custodian of Records for SSA’s Region IX. Ms. Jacobson’s affidavit shows that

plaintiff’s birth date is November 30, 1932; plaintiff filed for social security retirement benefits

on February 15, 1996; plaintiff began receiving benefits on May 3, 1996; plaintiff’s benefits were

suspended in February 2001 due to his incarceration but plaintiff continued to receive benefits

until March 2001, resulting in an overpayment of benefits; plaintiff was receiving monthly

benefits of $901.00 when his benefits were suspended; plaintiff’s spouse did not file for or

receive spousal benefits during plaintiff’s incarceration.

Plaintiff has filed an affidavit and exhibits demonstrating the following. Plaintiff

was incarcerated in a California state prison commencing January 19, 2001. By notice dated

March 9, 2001, the SSA notified plaintiff that his retirement benefits would be suspended during

his incarceration and that he could request an appeal within 60 days commencing “the day after

you receive this letter” or “[y]ou must have a good reason if you wait more than 60 days.” 

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 These dates are based upon plaintiff’s representations and copies of certified mail 2

receipts; the subsequently-provided dates on the first page of each letter erroneously notes the

year as 2002.

 20 C.F.R. § 404.902(t) provides: “Initial determinations are the determinations we 3

make that are subject to administrative and judicial review. . . .[I]nitial determinations include,

but are not limited to, determinations about . . . (t) Nonpayment of your benefits under § 404.468

because of your confinement in a jail, prison, or other penal institution or correctional facility for

conviction of a felony.”

3

Plaintiff’s Exhibit A. In April and May 2001, plaintiff sent letters to several public officials 2

claiming that the cessation of his accrued benefits was discriminatory because it resulted in

plaintiff “paying” for his incarceration, a penalty not required of prisoners on public assistance. 

Plaintiff’s Exhibits B and C.

Plaintiff completed a civil rights discrimination complaint form on May 17, 2001,

which the SSA Office of the General Counsel (“General Counsel”) acknowledged by letter dated

July 23, 2001. Plaintiff’s Exhibit I (see also Exhibit H). Plaintiff’s complaint was assigned a

docket number, and all further inquiries were directed to the Region IX Office of the General

Counsel. In a letter dated October 1, 2001, Rebecca Heinstein, Assistant Regional Counsel of the

Region IX Office, informed plaintiff that she had been assigned to investigate plaintiff’s claim of

discrimination due to the termination of his benefits based on his incarceration. Plaintiff’s

Exhibit J. On November 14, 2001, Region IX Chief Counsel Janice L. Walli informed plaintiff

in a “Letter of Findings Concerning Civil Rights Discrimination Complaint No. 09-01-16,

Donald G. Linden, Complainant,” that his complaint was “denied and dismissed” because (1)

plaintiff failed to demonstrate a cognizable claim of discrimination on the basis of disability,

race, color, national origin, sex, age, religion, or retaliation, and (2) the “nonpayment of benefits

due to incarceration is considered an initial determination subject to administrative and judicial

review” (citing 20 C.F.R. § 404.902(t)) and requires the filing of an administrative appeals 3

within 60 days (20 C.F.R. § 404.909), which plaintiff “did not pursue.” Plaintiff’s Exhibit L.

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 Plaintiff emphasizes that his retirement benefits, in contrast to public assistance, derive 4

from taxes plaintiff paid on his own earnings placed into a trust fund to support plaintiff and his

dependents in retirement.

4

Plaintiff sought reconsideration April 1, 2002, which the SSA Office of the

General Counsel (per Andrew J. Young, Senior Advisor to the General Counsel) denied on July

25, 2002. Plaintiff’s Exhibit N. Noting that plaintiff’s request for reconsideration was “beyond

the filing deadline,” Mr. Young nonetheless reviewed plaintiff’s request. The General Counsel’s

Office agreed with the Region IX decision, adding that plaintiff had improperly pursued his

action as a discrimination claim and that “your claim should have been processed through the

administrative and judicial review processes. 20 C.F.R. § 404.902(t) (2001); 42 U.S.C. §

405(g).” Plaintiff’s Exhibit N. 

On January 8, 2003, in response to a letter from plaintiff dated January 6, 2003,

Leslie S. Walker, SSA’s Region IX Communications Director, advised plaintiff that “[y]our

efforts to obtain the information and legal redress you are requesting should be directed to

Congress and to the federal courts.” Plaintiff’s Exhibit N. 

Plaintiff filed his complaint in this court on December 23, 2004. Plaintiff asserts

he was unfairly penalized by the suspension of his earned retirement benefits while indigent 4

incarcerated individuals and their families continued to receive public assistance, i.e., that

plaintiff was required to “pay” for his incarceration. Plaintiff seeks retroactive payment of his

benefits for the period of suspension, punitive damages of one million dollars, and costs.

Plaintiff was released from prison on April 12, 2005. 

I. JURISDICTION

Defendants assert this court is without subject matter jurisdiction to consider

plaintiff’s complaint because plaintiff failed to exhaust his administrative remedies and obtain a

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 Section 405(g) provides in pertinent part:

5

Any individual, after any final decision of the Commissioner of Social Security

made after a hearing to which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil action commenced

within sixty days after the mailing to him of notice of such decision or within such

further time as the Commissioner of Social Security may allow.

 42 U.S.C. § 1383(c)(3) provides: “The final determination of the Commissioner of 6

Social Security after a hearing under paragraph (1) [which includes determinations of ineligibility

due to incarceration] shall be subject to judicial review as provided in section 405(g) of this title

to the same extent as the Commissioner's final determinations under section 405 of this title.

5

final administrative decision as required by 42 U.S.C. 405(g).

5

A. LEGAL STANDARDS

Lack of subject matter jurisdiction may be raised at any time by either party or by

the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th

Cir. 1996). On a Rule12(b)(1) motion to dismiss, plaintiff bears the burden of proving that

jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818

(9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th

Cir.1979). In reviewing a motion pursuant to this rule, the court may consider affidavits or any

other evidence properly before the court. Sommatino v. United States, 255 F.3d 704, 710 (9th

Cir. 2001); Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000).

“[F]ederal courts cannot assume jurisdiction over controversies concerning the

interpretation of the entitlement provisions of the Social Security Act under the general federal

question statute [28 U.S.C. § 1331]; accordingly, we must determine whether the terms of [42

U.S.C. ] §§ 405(g) and 1383(c)(3) permit the exercise of jurisdiction []. See 42 U.S.C. § 405(h) 6

(“[n]o action against the United States, the [Commissioner], or any officer or employee thereof

shall be brought under section 1331 . . . of title 28, United States Code, to recover on any claim

arising under [ Title II]”); Weinberger v. Salfi, 422 U.S. 749, 757-58, 95 S. Ct. 2457, 2463-64,

45 L.Ed.2d 522 (1975) (§ 405(h) deprives the federal courts of general federal question

jurisdiction; judicial review of agency decisions must be grounded in § 405(g)).” Briggs v.

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Sullivan, 886 F.2d 1132, 1138 (9th Cir. 1989).

“A final judgment [under 42 U.S.C. § 405(g)] consists of two elements: the

presentment of a claim to the [Commissioner] and the exhaustion of administrative remedies.

The presentment requirement is jurisdictional, and therefore cannot be waived by the

[Commissioner] or the courts. The exhaustion requirement . . .is not jurisdictional, and thus, is

waivable by either the [Commissioner] or the courts. Matthews v. Eldridge, 424 U.S. 319, 330,

96 S.Ct. 893, 900 (1975). [¶] The Supreme Court has suggested, and we have applied, a threepart test ‘to determine whether a particular case merits judicial waiver of the exhaustion

requirement.’ Briggs v. Sullivan, 886 F.2d 1132, 1139 (9th Cir.1989); see also Bowen v. City of

New York, 476 U.S. 467, 483, 106 S.Ct. 2022, 2031-32 (1986); Matthews, 424 U.S. at 330-31,

96 S.Ct. at 900-01. The claim must be (1) collateral to a substantive claim of entitlement

(collaterality), (2) colorable in its showing that denial of relief will cause irreparable harm

(irreparability), and (3) one whose resolution would not serve the purposes of exhaustion

(futility). Briggs, 886 F.2d at 1139.” Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993)

B. ANALYSIS

Defendants assert plaintiff failed to take the first step toward administrative

exhaustion because he did not seek reconsideration of SSA’s March 9, 2001 initial notice that his

retirement benefits would be suspended.

The initial notice (20 C.F.R. §§ 404.902(t)) informed plaintiff he could seek

reconsideration within 60 days “start[ing] the day after you receive this letter” (20 C.F.R. §

404.909), which has been interpreted by the Commissioner as “5 days after the date on the

notice, unless you show us that you did not receive it within the 5-day period” (20 C.F.R. §

404.901). Plaintiff was further informed that “[y]ou must have a good reason if you wait more

than 60 days.” 20 C.F.R. §§ 404.909(b) , 404.911.

Sixty-five days after March 9, 2001 was Sunday, May 13, 2001. The latest date

plaintiff could timely have filed a request for reconsideration was Monday, May 14, 2001. 

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Plaintiff contends, alternatively, that: (1) his discrimination complaint filed May

17, 2001, should be construed as a request for reconsideration, its late filing supported by good

cause, viz., plaintiff’s limited access to the prison law library and the library’s limited

information on social security cases, and SSA’s representation it would address the substance of

plaintiff’s complaint; (2) the January 8, 2003 letter from SSA’s Region IX Communications

Director, Leslie A. Walker, referring plaintiff to Congress and the courts, demonstrates

exhaustion of administrative remedies; and (3) the exhaustion requirement should be waived.

Plaintiff’s first argument is superficially compelling, particularly in light of SSA’s

consideration and reconsideration of plaintiff’s civil rights complaint which was clearly based on

his challenge to the suspension of his benefits due to incarceration. SSA led plaintiff to believe it

would fully consider and address plaintiff’s concerns. However, even if SSA’s July 25, 2002

“reconsideration decision” was construed as a “final decision of the Commissioner” within the

meaning of 42 U.S.C. § 405(g), plaintiff failed timely to file his complaint in this court within 60

days. 42 U.S.C. 405(g); 20 C.F.R. § 422.210(c). 

Plaintiff’s second argument also fails. Ms. Walker’s January 8, 2003 letter 

recounts SSA’s obligation to enforce federal statutes, as enacted by Congress and interpreted by

the courts; it does not demonstrate plaintiff’s exhaustion of available administrative remedies.

However, plaintiff’s third argument does not ultimately support this court’s

jurisdiction. Plaintiff has met the first element for obtaining judicial review under 42 U.S.C. §

405(g), the nonwaivable requirement that he present his benefits claim. The “presentment

requirement is satisfied when an individual makes a claim for benefits, and the [Commissioner]

determines that the claimant meets the eligibility requirements for those benefits.” Briggs, 886 F.

2d. at 1139 (suspension of benefits based on a collateral policy does not require “re-presentation”

of benefits claim in order to obtain review of collateral policy). The Commissioner does not

dispute plaintiff’s entitlement to retirement benefits based on his February 1996 claim.

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Plaintiff arguably does not meet the second element for obtaining judicial review

under section 405(g), based on the three-part test for waiving the administrative exhaustion

requirement – collaterality, irreparability, and futility. Plaintiff’s challenge to the suspension of

his retirement benefits while incarcerated may be viewed as collateral to his entitlement to those

benefits – if plaintiff challenges neither the status of his benefits nor his incarceration. Cf., 

Bowen v. City of New York, 476 U.S. 467, 483, 106 S. Ct. 2022, 2032 (1986) (waiver

appropriate where claim is entirely collateral to substantive claim of entitlement); Johnson v.

Shalala, 2 F.3d at 922 (a claim is collateral if not bound up with the merits so closely that a

decision of the court would interfere with agency process). See also Johnson v. Shalala, 2 F.3d

918, 921-922 (9th Cir. 19__) (challenge to established Social Security Administration policy of

treating all in-kind loans as income to a person seeking supplemental security income was not a

claim for benefits and thus was collateral to such a claim, and requirement of exhaustion could

be waived with respect to the claim). On the other hand, if plaintiff’s claim is at bottom one for

payment of benefits, it may well be viewed as non-collateral. Heckler v. Ringer, 466 U.S. 602,

614, 104 S. Ct. 2013, 2021 (1984).

Plaintiff’s claim herein is more akin to the latter Ringer situation. Not being

incarcerated is an eligibility requirement for payment of benefits as much as having sufficient

quarters of coverage or attaining a certain age. It does not matter whether the person denied

payment is one who is incarcerated and initially seeking benefits or is one who had been

receiving benefits but then became ineligible due to incarceration. Incarceration means no

payment of benefits in either case, and plaintiff, at bottom, is complaining about a non-payment

of his benefits. Thus, plaintiff would not meet the collaterality exception. However, because the

issue of collaterality is somewhat metaphysical, the undersigned goes on to examine the

remaining elements. The element of irreparability is met by plaintiff’s claim his wife was

required to return to work during plaintiff’s incarceration and would have been so required even

had she obtained her “di minimis” share of plaintiff’s benefits. See, Briggs v. Sullivan, 886 F.2d

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at 1140 (citation and internal quotations omitted) (“a colorable showing of irreparable injury for

purposes of waiver of the exhaustion requirement is one that is not wholly insubstantial,

immaterial, or frivolous”). Finally, because plaintiff’s constitutional claim challenges a

fundamental agency policy that broadly impacts similarly situated retirees, administrative

exhaustion would be futile. The policies underlying the exhaustion requirement – deference to

agency expertise, development of a detailed factual record, and conservation of judicial resources

– are not furthered by foregoing immediate judicial consideration of this issue. Cf., Johnson v.

Shalala, 2 F.3d at 922 (futile to require administrative exhaustion by class members challenging

SSA policy of designating in-kind loans as income under the SSI program); Briggs v. Sullivan,

886 F.2d at 1140 (futile to require administrative exhaustion of appellants’ “straighforward

statutory and constitutional challenge” to SSA policy of suspending benefits while awaiting

designation of new representative-payees).

The court finds, therefore, that plaintiff has not met all criteria for waiving the

requirement he exhaust administrative remedies and obtain a final administrative decision, thus

permitting this court’s review of plaintiff’s constitutional claims under 42 U.S.C. § 405(g). His

claim herein is not separate from his entitlement to benefits.

II. SUMMARY JUDGMENT

In an abundance of caution, the undersigned will address the merits as well.

Defendants move for summary judgment on plaintiff’s sole claim that suspension

of his Title II social security retirement benefits while incarcerated was an unconstitutional ex

post facto penalty in violation of his due process and equal protection rights under the Civil

Rights Act of 1964 and 42 U.S.C. § 1983. 

A. LEGAL STANDARDS

Summary judgment avoids unnecessary trials in cases with no disputed material

facts. See Northwest Motorcycle Ass’n v. United States Dep’t of Agric., 18 F.3d 1468, 1471

(9th Cir. 1994). At issue is “whether the evidence presents a sufficient disagreement to require

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 20 C.F.R. § 404.468(a) provides: “No monthly benefits will be paid to any individual 7

for any month any part of which the individual is confined in a jail, prison, or other penal

institution or correctional facility for conviction of a felony. . . . However, it applies only to the

prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s

wages and self-employment income are payable as though the prisoner were receiving benefits.”

10

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986). Two

steps are necessary. First, according to the substantive law, the court must determine what facts

are material. Second, in light of the appropriate standard of proof, the court must determine

whether material factual disputes require resolution at trial. See id. at 248, 106 S. Ct. 2510. If

reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, “[w]here the

record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,

there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S. Ct. 1356 (citation

omitted). In that case, the court should grant summary judgment.

B. ANALYSIS

The only material fact is undisputed – the suspension of plaintiff’s social security

retirement benefits during his incarceration. The question to be resolved is whether this action

was proper as a matter of law.

The suspension of an incarcerated individual’s social security retirement benefits

is authorized by federal statute. 42 U.S.C. § 402(x)(1)(A)(i) provides:

(x) Limitation on payments to prisoners, certain other inmates of publicly

funded institutions, fugitives, probationers, and parolees 

(1)(A) Notwithstanding any other provision of this subchapter, no monthly benefits shall

be paid under this section [404] or under section 423 of this title to any individual for any

month ending with or during or beginning with or during a period of more than 30 days

throughout all of which such individual–(i) is confined in a jail, prison, or other penal

institution or correctional facility pursuant to his conviction of a criminal offense . . . 

While this statute ensures continuing benefits on a pro rata basis to the dependents of

incarcerated retirees (42 U.S.C. § 402(x)(2), and 20 C.F.R. § 404.468(a)), plaintiff does not 7

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 The Butler court noted: “We find that every other circuit to address the constitutionality

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of § 402(x) on rational basis review has upheld the statute. See Davis v. Bowen, 825 F.2d 799,

801 (4th Cir. 1987); Andujar v. Bowen, 802 F.2d 404, 405 (11th Cir. 1986); Zipkin v. Heckler,

790 F.2d 16, 19 (2d Cir. 1986); Buccheri-Bianca v. Heckler, 768 F.2d 1152, 1155 (10th Cir.

1985); Jensen v. Heckler, 766 F.2d 383, 385 (8th Cir. 1985).” 144 F.3d at 625, n. 1. Accord, 

Washington v. Secretary of Health and Human Services, 718 F.2d 608 (3rd Cir. 1983); Caldwell

v. Heckler, 819 F.2d 133, 134 (6th Cir. 1987). 

11

dispute that his wife chose not to pursue this benefit, arguing that the amount was di minimis.

The challenged statute has repeatedly withstood constitutional challenge. In

Butler v. Apfel, 144 F.3d 622 (9th Cir. 1998), the Ninth Circuit rejected an inmate’s claim that

42 U.S.C. § 402(x) violates substantive due process and equal protection, concluding that the

statute rationally meets Congress’ rational goal of allocating “scarce resources;” rejected

plaintiff’s claim the statute violates bill of attainder and ex post facto laws because not a

“punishment;” and rejected plaintiff’s procedural due process claim based on the lack of an

administrative hearing because “the statute leaves no room for discretion.” The Butler court

identified five additional circuits (Second, Fourth, Eighth, Tenth and Eleventh) that have reached

the same conclusion, as have the Third and Sixth Circuits. Plaintiff’s claim is without legal

8

support. 

CONCLUSION

Accordingly, the court hereby RECOMMENDS that:

1. Plaintiff’s claims against defendant Leslie S. Walker be dismissed pursuant to

Fed. R. Civ. P. 4(m) and 12(b)(5); 

2. Defendants’ motion to dismiss filed May 23, 2005, be granted; and in the

alternative;

3. Defendants’ motion for summary judgment filed May 23, 2005, be granted.

These findings and recommendations are submitted to the Honorable Frank C.

Damrell, Jr., the United States District Judge assigned to this case. 28 U.S.C. § 636(b)(l). 

Written objections may be filed within ten days after being served with these findings and

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recommendations. The document should be captioned “Objections to Magistrate Judge’s

Findings and Recommendations.” The failure to file objections within the specified time may

waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

1991). 

DATED: 8/1/06 /s/ Gregory G. Hollows

____________________________ 

 

GREGORY G. HOLLOWS

 U. S. MAGISTRATE JUDGE

NOW6:LINDEN.F&R Dism Juris

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