* This order and judgment is not binding precedent, e xcept under the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 Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

UNITED STATES COURT OF APPEALS Filed 8/15/96 FOR THE TENTH CIRCUIT

JIM GRENNAN,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 95-6430 (D.C. No. CV-94-2000-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, BRIGHT, ** and KELLY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Jim Grennan, an attorney who represents c laimants for Social Security benefits, brought this action seeking an o rder directing the Commissioner to promulgate regulations governing her review of t he maximum amount of attorney fees payable under fee agreements with Soc ial Security claimants, as she is required to do under 42 U.S.C. § 406(a)(3)(A). In his first amended complaint, plaintiff alleged that jurisdiction was based on 28 U.S.C. §§ 1331 and 1361, the Administrative Procedures Act, and the Fifth and Fo urteenth Amendments. The Commissioner moved for dismissal for lack of subjec t matter jurisdiction under Fed. R. Civ. P. 12(h)(3) or alternatively, for summ ary judgment. Adopting the report and recommendation of the magistrate judge, the district court held that it did not have subject matter jurisdiction under § 13 31 to consider plaintiff’s APA claim, that plaintiff did not have standing to purs ue his constitutional claims, and that even assuming plaintiff had standing to seek m andamus relief under § 1361, he was not entitled to mandamus relief. On appeal, plaintiff challenges only the district court’s rulings regarding § 1331 jurisdict ion and his entitlement to mandamus relief under § 1361. This case arises out of an administrative law judge ’s (ALJ) request on at least two occasions for review of the amount which would otherwise be the-3-

maximum fee under plaintiff’s fee agreements with s uccessful Social Security claimants. Under an approved fee agreement, the ma ximum amount of attorney fees available is twenty-five percent of the amountof past due benefits or $4,000, whichever is less. See 42 U.S.C. § 406(a)(2)(A). Under § 406(a)(3)(A), the ALJ “may request the Commissioner of Social Security to reduce the maximum fee only on the basis of evidence of the failure of the person representing the claimant to represent adequately the claimant’s int erest or on the basis of evidence that the fee is clearly excessive for serv ices rendered.” This section further provides that the Commissioner shall provid e for this review by regulation. Id. The Commissioner has not promulgated the required regulations, but has issued internal operating instructions gove rning these reviews. Because the ALJ did not comply with the internal instructio ns--he did not point to “prima facie evidence” of an excessive fee--the requests f or review were denied, and plaintiff received the maximum amount of fees underhis agreements. Subsequently, plaintiff informed the Commissioner s eventeen months before he filed his complaint in this action that h e was abandoning the fee agreement process and would instead seek approval f or his attorney fees under the fee petition process pursuant to 20 C.F.R. § 404.17 25. Plaintiff contends that he has since tried to return to the fee agreement proc ess, although the only such agreement contained in the record did not meet the requirements of 42 U.S.C.-4-

§ 406(a)(2)(A). For her part, the Commissioner contends that the situation that led to the requests for review of plaintiff’s fee a greements has been alleviated, and that she is in the process of promulgating the regulations required by 42 U.S.C. § 406(a)(3)(A). Under the doctrine of prudential mootness, we may d ecline to consider a case seeking prospective equitable relief that, whi le not constitutionally moot, “is so attenuated that considerations of prudence and c omity for coordinate branches of government counsel the court to stay its hand an d to withhold relief it has the power to grant.” Building & Constr. Dep’t v. Rockw ell Int’l Corp. , 7 F.3d 1487, 1492 (10th Cir. 1993)(quotation omitted). “In such cases a court may decline to grant declaratory or injunctive relief where it app ears that a defendant, usually the government, has already changed or is in the proces s of changing its policies or where it appears that any repeat of the actions in question is otherwise highly unlikely.” Id. We determine this case to be appropriate for the ap plication of the doctrine of prudential mootness. It appears both that the s ituation leading to this case is unlikely to repeat itself and that the Commissioneris in the process of complying with the requirement to promulgate the regulations. See id. ; Chamber of Commerce v. United States Dep’t of Energy , 627 F.2d 289, 292 (D.C. Cir. 1980)(applying doctrine where challenged governmentpractice “is currently-5-

under review and may never recur”). Should the sit uation of which Plaintiff complains reoccur, he may file a complaint for appr opriate relief. At this time however, we DISMISS the appeal and dir ect the district court to VACATE the judgment as moot.

Entered for the Court

Myron H. Bright Senior Circuit Judge