* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

.

UNITED STATES COURT OF APPEALS Filed 1/6/97 FOR THE TENTH CIRCUIT

GARY G. LOHSE,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner of Social Security,

Defendant-Appellee. No. 96-1098 (D.C. No. 95-S-2945) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978). -2- this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff, proceeding pro se, brought this action s eeking damages resulting from the Social Security Administration’s alleged u nconstitutional delay in adjudicating his claim for disability benefits. By order and judgment entered June 14, 1994, this court reversed the Secretary’s denia l of plaintiff’s 1990 application for disability benefits and remanded the case to th e agency for further proceedings. Lohse v. Shalala , No. 93-1392 (10th Cir. June 16, 1994)(unpublished order and judgment). Plaintiff f iled the present action in late November 1995, claiming that he had yet to receive a hearing before an administrative law judge (ALJ) after remand from th is court. Plaintiff alleged that, as a result of the agency’s delay in adjudicating his claim, he had been “deprived of Medicare for much needed medical treat ment, medical maintenance medications, which are life threatening, if not abl e to purchase,” and he had “endured pain & suffering, undue hardship, loss of property, increased major depression, also much needed medical treatment, pre scribed by orthopedic surgeon and primary care physician and psychiatrist .” R. Vol. I, Doc. 3 at 2. The district court ordered the Commissioner to file a Martinez 1 report, which she did in February 1996. The Martinez report stated that a hearing had2 Bivens v. Six Unknown Named Agents of the Fed. Bure au of Narcotics ,

403 U.S. 388, 397 (1971)(holding that a constitutio nal violation by a federal official acting under color of his authority may gi ve rise to an action for damages). -3- been held on plaintiff’s disability claim on February 6, 1996, but that the ALJ had not yet issued a decision. Plaintiff did not respo nd to the Martinez report and, on March 12, 1996, the district court entered an orderdismissing this action as frivolous under 28 U.S.C. § 1915(d). Plaintiff sub sequently filed a motion seeking to strike the dismissal order and to obtainadditional time in which to respond to the Martinez report. The district court denied the motion, and this appeal followed. The district court dismissed the action on essentia lly three grounds. First, the court concluded that it did not have jurisdicti on over the action under 42 U.S.C. §§ 401-433 because the Commissioner had n ot yet issued a final decision on plaintiff’s disability application, so plaintiff had not met the finality requirements of § 405(g). Second, the court determ ined that, to the extent plaintiff sought relief in the nature of an order d irecting the agency to adjudicate his claim more quickly, such relief was barred purs uant to Heckler v. Day , 467 U.S. 104 (1984). Finally, the court determined that, to the extent plaintiff sought to allege a Bivens 2 claim against a federal official, the claim was wi thout merit. The court reasoned that, because plaintiff was alre ady receiving social security-4-

benefits based on an application he filed in Decemb er 1994, and because he was awaiting the agency’s determination of his entitlem ent to additional benefits under his 1990 application, the facts did not estab lish that plaintiff had been deprived of a constitutional right. We review the district court’s dismissal under § 19 15(d) for an abuse of discretion. See Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995). Based upon our review of the record, the parties’ briefs, and the pertinent law, we affirm the dismissal, though on different grounds than tho se upon which the district court relied. See Swoboda v. Dubach , 992 F.2d 286, 291 (10th Cir. 1993)(recognizing that an appellate court can affir m a district court for reasons other than those relied upon by the district court)

. Contrary to the district court’s statement, the req uirement that a claimant exhaust his administrative remedies and obtain a fi nal decision from the Commissioner before seeking judicial review under § 405(g) is not jurisdictional, and can be waived under appropriate circumstances. Bowen v. City of N.Y. , 476 U.S. 467, 482-83 (1986); Mathews v. Eldridge , 424 U.S. 319, 328 (1976). The only element of § 405(g)’s finality requirement that is jurisdictional, and, therefore, not subject to waiver, is the requiremen t that a claim for benefits actually be presented to the agency. City of N.Y. , 476 U.S. at 483; Mathews , 424 U.S. at 328. Plaintiff has fulfilled this nonwaiva ble requirement.3 Contrary to the district court’s suggestion, if pla intiff were seeking

injunctive relief aimed at ordering the agency to a djudicate his claim more quickly, the Supreme Court’s opinion in Heckler v. Daywould not bar such relief. The Court in Dayreviewed a district court’s injunction that set ma ndatory deadlines for the agency’s adjudication of all futu re claims, statewide. 467 U.S. 109-10. While striking down such broad, prospectiv e relief, id. at 110-11, 119, the Court made clear that it was not prohibiting th e proper use of injunctive relief to remedy an individual claim, id. at 119 n.33. -5- Even when liberally construed, however, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), a fair reading of plaintiff’s c omplaint reveals that he seeks only money damages for the injuries resulting from the agency’s alleged unconstitutional delay. He does not seek injunctiv e or declaratory relief, nor does he seek relief in the nature of mandamus. 3 Therefore, we need not consider whether the facts o f this case would warrant waiving the § 405(g) requirement that a cla imant exhaust his adminstrative remedies and secure a final agency de cision before seeking judicial review. See City of N.Y. , 476 U.S. at 483-84 (setting forth factors to cons ider). Instead, we need only consider whether plaintiff can bring a claim for money damages resulting from alleged unconstitutional con duct by the agency in adjudicating his claim for benefits. Based upon th e Supreme Court’s opinion in Schweiker v. Chilicky , 487 U.S. 412 (1988), we think the clear answer is “No.” The plaintiffs in Chilickywere social security claimants whose disability benefits had been improperly terminated, allegedly as a result of unconstitutional-6-

policies attributable to the defendant officials. The plaintiffs sought money damages for “emotional distress and for loss of foo d, shelter and other necessities proximately caused by [defendants’] denial of benef its without due process,” id. at 419 (quotation omitted), which injuries, the pla intiffs contended, could not be fully recompensed by the retroactive award of back benefits, id. at 428. While “agree[ing] that suffering months of delay in recei ving the income on which one has depended for the very necessities of life canno t fully be remedied by the belated restoration of back benefits,” id. at 428 (quotation omitted), the Court refused, nonetheless, to create a Bivens remedy. Although “a Bivens remedy would obviously offer the prospect of relief for in juries that must now go unredressed,” id. at 425, the Court concluded that such a remedy was not available because “Congress has provided what it co nsiders adequate remedial mechanisms for constitutional violations that may o ccur in the course of [the program’s] administration,” id. at 423, “and we see no legal basis that would allow us to revise its decision,” id. at 429. The Court’s rationale for not recognizing a Bivens remedy in Chilickyis equally applicable here. Therefore, because plaint iff asserts only a Bivens claim for damages, the district court did not abuse its d iscretion in dismissing plaintiff’s complaint under § 1915(d).-7-

Because we conclude that plaintiff’s complaint seek s only money damages for injuries resulting from alleged unconstitutiona l delays in adjudicating his claim for benefits and the Supreme Court’s opinion in Chilickyclearly bars such a claim, we conclude that the district court did not abuse its discretion in dismissing plaintiff’s case under 28 U.S.C. § 1915(d). The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. All outstanding motions are denied as moot. The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry Circuit Judge