United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-2725

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Billy Grisso, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

Kenneth S. Apfel, Commissioner of * Eastern District of Missouri

Social Security, Robert E. Rubin, *

Secretary of the U.S. Treasury; Janet * [TO BE PUBLISHED]

Reno, Attorney General of the *

United States, *

 *

Appellee. *

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 Submitted: July 12, 2000

 Filed: July 25, 2000

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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

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PER CURIAM.

Billy Grisso appeals from a final judgment entered in the District Court for the

Eastern District of Missouri, dismissing his mandamus action for lack of subject matter

jurisdiction. For reversal, Grisso argues that the district court had jurisdiction to decide

his constitutional claim and to rule on his mandamus petition. Four Missouri prisoners
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have moved for leave to file a Fed. R. App. P. 28(j) letter as intervenors; we deny their

motion. For the following reasons, we affirm in part, reverse in part, and remand.

From 1983 to 1994, while Grisso was an Arkansas and Missouri prisoner, his

disability insurance benefits were suspended. During that time, federal law provided

that an individual confined in jail for a felony was not entitled to monthly benefits

unless “actively and satisfactorily participating in a rehabilitation program which has

been specifically approved for such individual by a court of law and, as determined by

the [Social Security Commissioner], is expected to result in such individual being able

to engage in substantial gainful activity upon release and within a reasonable time.” 42

U.S.C. § 402(x)(1) (1993) (amended 1994). In September 1997, Grisso filed the

instant petition for a writ of mandamus against the Commissioner, seeking

reimbursement of his suspended benefits and asserting that § 402(x)(1) was

unconstitutional. Also in September 1997, Grisso filed an application with the Social

Security Administration (SSA) for approval of industrial training programs as

rehabilitation programs. In the application, Grisso informed the SSA that he had filed

this federal action, and the SSA later informed him that it would not comment on his

application and that the appropriate forum was the federal district court. Thus, in

November 1997, Grisso moved for the district court to compel the SSA to rule on his

application.

The Commissioner moved to dismiss Grisso’s mandamus action, arguing his

exclusive remedy for reimbursement of benefits was under 42 U.S.C. § 405(g), and the

district court could not review the claim until he exhausted administrative remedies.

Grisso responded that he did not need to exhaust because his petition attacked the

constitutionality of § 402(x)(1), and he attested that he filed the mandamus petition to

force the Commissioner to review his September 1997 application. The district court

characterized Grisso’s petition as seeking benefits and thus as seeking judicial review

of an agency action, and concluded that it lacked jurisdiction because Grisso had failed

to exhaust. The district court further concluded that it lacked jurisdiction to order the
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Commissioner to take action on Grisso’s pending application, and that Grisso had no

standing to challenge the constitutionality of § 402(x)(1).

We review the district court’s dismissal de novo. See Phillips v. Ford Motor

Co., 83 F.3d 235, 239 (8th Cir. 1996). Grisso correctly argues the district court has

jurisdiction to decide constitutional issues such as that raised in his mandamus petition.

See Califano v. Sanders, 430 U.S. 99, 108-09 (1977) (where claimant challenges

Commissioner’s denial of benefits on constitutional grounds, judicial review is

appropriate). Even if Grisso--who is no longer a prisoner having his benefits

suspended--has standing to raise his constitutional claim, it lacks merit. See Jensen v.

Heckler, 766 F.2d 383, 385-86 (8th Cir. 1985) (per curiam) (suspension of benefits to

prisoners does not violate Due Process, Equal Protection, or Ex Post Facto Clauses).

To the extent Grisso’s mandamus petition sought reimbursement of benefits, we

agree with the district court that it lacked jurisdiction to review such a claim absent

exhaustion of administrative remedies. See Anderson v. Sullivan, 959 F.2d 690, 692

(8th Cir. 1992). We believe, however, that Grisso’s petition and subsequent filings

indicate he also sought an order to compel the Commissioner to review his September

1997 application for approval of rehabilitation programs. We conclude that this was

a proper request for mandamus relief, and we note that granting this aspect of the

petition would not entitle Grisso to benefits per se. See Linquist v. Bowen, 813 F.2d

884, 887 n.12 (8th Cir. 1987) (citing cases from this circuit and others which have held

§ 405(g) does not preclude exercise of mandamus jurisdiction, and noting mandamus

is appropriate in social security case when dispute does not involve “entitlement to

benefits per se”); Peeler v. Heckler, 781 F.2d 649, 652 (8th Cir. 1986) (sentencing

court approves rehabilitation program, while Commissioner considers whether program

could result in substantial gainful activity; if Commissioner’s decision is unfavorable,

plaintiff may seek review in federal district court).
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Accordingly, we affirm the dismissal of Grisso’s constitutional challenge, and

we reverse and remand for the district court to exercise its mandamus jurisdiction on

Grisso’s request as to his September 1997 application. We deny the prisoners' motion

for leave to file a Rule 28(j) letter as intervenors.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.