* This order and judgment is not binding precedent, e xcept under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JIMMY R. BULGIER,

Petitioner-Appellant,

v. SOCIAL SECURITY ADMINISTRATION; NEDRA AUTRY, Hearing Office Manager/Office for Hearings & Appeals; JANICE L. WORDEN, Deputy Commissioner for Operations,

Respondents-Appellees. No. 96-1382 (D.C. No. 96-S-75) (D. Colo.)

ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of 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.-2-

Petitioner appeals from a district court order deny ing his petition for a writ of mandamus under 28 U.S.C. § 1361. As explained b elow, all pertinent relief sought in the petition has been obtained through ad ministrative concession. We therefore conclude the proceeding is moot, vacate t he district court’s disposition, and remand for entry of a judgment of dismissal wit hout prejudice. See generally McClendon v. City of Albuquerque , 100 F.3d 863, 868 (10th Cir. 1996). A summary of the grievances alleged and relief soug ht in the petition will adequately frame our mootness inquiry. Petitioner, legally blind since birth, has received social security benefits throughout his li fe. In 1993, he was imprisoned for a state felony conviction, which, under 42 U.S. C. § 402(x)(1), suspended his right to benefits. Despite petitioner’s efforts to inform the Social Security Administration (SSA) of this circumstance through athird party, SSA continued to send benefit checks to his home, which apparentl y were cashed by the third party. Eventually, SSA realized the mistake, suspe nded petitioner’s benefits, and sought recoupment of the overpayments first from pe titioner and then from his parents, who also receive benefits from SSA. Petitioner asked SSA to cease its wrongful demands on his parents and to waive recoupment from himself. He also sought reco gnition of his participation in a vocational rehabilitation program since 1993, which would have exempted1 Prior to its amendment in 1994, § 402(x)(1) enabledincarcerees to avoid

suspension of their benefits by participating in ap proved rehabilitation programs. The 1994 amendment eliminated this exception for be nefits paid beginning February 1995. See Rowden v. Warden , 89 F.3d 536, 537 & n.2 (8th Cir. 1996). -3- him from the suspension of benefits under § 402(x)( 1) altogether. 1 After SSA failed to respond properly to his requests for hear ings and appeals, petitioner filed this action to compel SSA to provide him prescribedwaiver-of-overpayment procedures, see 42 U.S.C. § 404; 20 C.F.R. §§ 404.501-404.526, and to enjoin the collection efforts directed at his parents. He als o sought judicial approval of his rehabilitation program, a prerequisite for the § 40 2(x)(1) exemption; however, as the district court never had jurisdiction to contemplate such approval, which must be obtained from the inmate’s sentencing court, see In re v. Moyers , 960 F.2d 748, 749 (8th Cir. 1992); see also United States v. Osborne , 988 F.2d 47, 49 (7th Cir. 1993), we consider this matter no further. The primary issue in this case concerns SSA’s foreb earance regarding recoupment of the benefits mistakenly paid during p etitioner’s incarceration. Petitioner states that SSA has granted him all the relief sought in this regard. Accordingly, the matter is moot. See F.E.R. v. Valdez , 58 F.3d 1530, 1533 (10th Cir. 1995). Petitioner also raises a costs issue that is not ob viated by mootness of the merits. See Dahlem ex rel. Dahlem v. Denver Bd. of Educ. , 901 F.2d 1508, 1511-4-

(10th Cir. 1990). But this matter, which is compli cated by nontrivial “prevailing party” considerations, see, e.g. , id. , was not pursued in the district court, to which it should have been addressed in the first instance and, thus, we do not consider it. See Matei v. Cessna Aircraft Co. , 35 F.3d 1142, 1148 (7th Cir. 1994). See also Wilson v. Union Pac. R.R. Co. , 56 F.3d 1226, 1233 (10th Cir. 1995). Finally, petitioner contends he is entitled to bene fits under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, an d the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b, to fund the rehabilitation program he pursued in connection with his efforts to forestall suspensionof benefits under § 402(x)(1). While he alluded to Rehabilitation Act and ADA grie vances against the state department of corrections, petitioner did not assert any such claims against SSA in the instant petition. Whatever entitlements, if any, he might have in this regard are not properly before this court. The appeal is DISMISSED and the case is REMANDED wi th directions to vacate the order denying the petition and dismiss w ithout prejudice.

Entered for the Court
Michael R. Murphy Circuit Judge