*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-31195

Summary Calendar

 

Nelson Guillory,

Plaintiff-Appellant,

versus

Shirley S. Chater,

Defendant-Appellee.

 

Appeal from the United States District Court

For the Western District of Louisiana

94-CV-830

 

June 18, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The extraordinary and unnecessarily tortured procedural

history of this case is described in full in the opinion by the

magistrate judge below. Reduced to its essence, this case is

simple one. The plaintiff, Nelson Guillory, at various times

sought a ruling from the Administrator that he was entitled to

retroactive disability benefits calculated in accordance with a

1983 onset date. On May 23, 1991, he was successful. An
2

administrative law judge found that he was “entitled to a period of

disability commencing August 27, 1983, and to disability insurance

benefits under sections 216(i) and 223, respectively, of the Social

Security Act.” This ALJ decision has not been reviewed or

challenged in any way, shape, or form.

Despite the ALJ decision, the Administrator sent plaintiff

notice that it intended to pay him retroactive benefits in an

amount calculated with an onset date of 1989. The record and

briefs do not disclose why the Administrator sought to readdress an

issue the ALJ had apparently already decided. When plaintiff

requested reconsideration of this notice, the Administrator sat on

the request for reconsiration for 33 months, despite several

letters from plaintiff’s counsel. Despairing of further action,

plaintiff filed suit.

We affirm the order of the court below on the ground that the

plaintiff has shown no irreparable harm, at least not yet. The

plaintiff is currently receiving benefits and therefore will not

suffer the type of irreparable harm normally considered sufficient

to support the imposition of a “waiver” of the exhaustion

requirement upon the Administrator. Unlike Bowen v. City of New

York, 476 U.S. 467, 483 (1986), upon which Guillory principally

relies, there is no specter that the plaintiff will suffer the

irreparable harms associated with having the benefits upon which he

depends for life’s basic necessities wrongfully cut off. Cf.

Schoolcraft v. Sullivan, 971 F.2d 81, 86 (8th Cir. 1992). Nor is
3

there any allegation that the Administrator’s actions in this case

spring from a “systemwide, unrevealed policy.” 476 U.S. at 485.

We cannot ignore the extraordinary nature of the

Administrator’s treatment of this case. Although we express no

view on whether the plaintiff has met the waiver requirement that

his claim be collateral to the merits of his application for

benefits, we note that Guillory does not argue in this litigation

that the relevant regulations entitle him to benefits dating back

to 1983. Rather, his argument in this litigation is that the ALJ

already decided that issue, and that the Administrator has failed

to abide by that decision, which Guillory labels final and binding.

If Guillory is right, we are confident that the Administrator

will reach the correct decision with greater dispatch than she has

shown thus far, since an examination of Guillory’s medical

condition would be unnecessary. If Guillory is incorrect, then the

Adminstrator will have to look once again into Guillory’s condition

and the relevant regulations, and further proceedings before the

Administrator will be valuable. Thus, at this time, we also affirm

on the ground that exhaustion would not be futile.

We conclude by noting that the Administrator cites no case,

and we have found none, holding that we are powerless to find the

requirements of the waiver doctrine satisfied solely on the grounds

of astonishing delay. We note also that, at least in other

contexts, the federal courts are open to those alleging that an

agency decision has been delayed so long as to merit the
4

extraordinary relief of a writ of mandamus directing the agency to

resolve the issue with dispatch. See, e.g., Telecommunications

Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984). The

plaintiff has not sought such a remedy on this appeal, and so we do

not address this issue. We are confident that the Administrator

will process the plaintiff’s claims with the speed to which he is

by now surely entitled.

AFFIRMED.