* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-10331

(Summary Calendar)

_________________________

GLENN T. HAMPTON,

Plaintiff-Appellant,

versus

DEPARTMENT HEALTH AND HUMAN SERVICES;

SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellees.

____________________________________________________

Appeal from United States District Court

from the Northern District of Texas

(3:95-CV-400-X)

__________________________________________________ June 21, 1995

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM: *

Glenn T. Hampton's social security benefits were

suspended during his incarceration pursuant to 42 U.S.C. § 402(x)

and 20 C.F.R. § 404.468, which prohibits the payment of benefits to

incarcerated felons. Proceeding p ro se and in forma pauperis

,

Hampton filed an Application for Writs of Mandamus, pursuant to 28

U.S.C. § 1361. His application states that in June 1994, he was

notified of this suspension of benefits and that he "filed an1 Hampton's petition was dated January 17, 1995 but was

"filed" on March 3, 1995.

2 appeal of this decision by certified mail, requesting a final

decision of the Secretary as required by [42 U.S.C. §] 405(g)". 1

In essence, Hampton's writ application requested the

district court to compel the Secretary (Secretary) of the

Department of Health and Human Services (Department) to enter a

"final decision" regarding his "appeal" of the "decision" which

suspended his ben efits, because an inordinate period of time had

elapsed since he initiated his appeal and because he has been

denied due process and equal protection. The magistrate judge

determined that the S ecretary's seven month silence between the

June 1994 notice of suspension and the January 1995 writ

application "does not constitute such an egregious and unreasonable

delay that he is entitled to mandam us relief ordering [the

Secretary] to enter a final decision in that proceeding." The

magistrate judge further determined that Hampton had an alternate

available form of relief, namely the expedited administrati v e

appeal process under 20 C.F.R. §§ 404.923 & 404.924. T he

ma gistrate judge concluded that Hampton failed to establish his

entitlement to mandamus relief.

The district court adopted the findings and conclusions

of the ma gistrate judge over Hampton's objections and denied the

petition for a writ of mandamus. On appeal, Hampton complains that

despite subse quent requests for the timely resolution of his

appeal, no final decision has been rendered, even tho ugh the3

Secretary's final decision is a prerequisite to judicial review of

the Department's action pursuant to 42 U.S.C. § 405(g). He asserts

that, by this suspens ion of benefits, "Social Security has

perpetrated a hoax upon old-age p ension recipients," and has

violated both their constitutional and civil rights. Hampton

contends that he is entitled to the writ of mandamus because,

eleven months after his June 1994 "administrative appeal," he has

not yet received a hearing or final decision on his c hallenge to

the con stitutionality of the suspension of his Social Security

retirement benefits.

"The common-law writ of mandamus, as codified in 28

U.S.C. § 1361, is intended to provide a remedy for a plaintiff only

if he has exhausted all other avenues of relief and only if the

defendant owes him a clear nondiscretionary duty." H eckler v.

Ringer

, 466 U.S. 602, 616 (1984). It is an extraordinary remedy

reserved for extraord inary circumstances. I n re American Marine

Holding Co.

, 14 F.3d 276, 277 (5th Cir. 1994). Mandamus may issue

only when 1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act ; and (3) there is no other

available remedy. S mith v. North La. Medical Review Assn

, 735 F.2d

168, 172 (5th Cir. 1984). The issuance of the writ of mandamus

lies within the discretion of the court to wh ich it is directed.

United States v. Denson , 603 F.2d 1143, 1146 (5th Cir. 1979).

First, Hampton's constitutional challenge to the

suspension of his benefits is "insubstantial." S ee Smith

, 735 F.2d

at 172. Social security benefits are noncontractual benefits, and4

their suspension is unconstitutional "only if the statute manifests

a patently arbitrary classification utte rly lacking in rational

justification" and not rati onally related to legitimate goals.

Weinb erger v. Salfi , 422 U.S. 749, 768-69 (1975) (internal

quotations and citation omitted). Although the Fifth Circuit has

not yet addressed the issue, several other circuits have upheld the

suspension of Social Security benefits against a vari ety of

constitutional challenges. S ee e.g.

, Davis v. Bowen

, 825 F.2d 799,

800 (4th Cir. 1987), cert. denied

, 484 U.S. 1069 (1988), and cases

cited therein. The basic economic needs of incarcerated felons are

provided for from other public sources; thus, the exclusion of

felons from retirement benefits during their incarceration promotes

the legitimate underlying congressional policy goal of conserving

scarce Social Security resources. See id . at 801.

We agree with the district court: the magistrate judge's

findings are correct. Moreover, this appeal is wholly lacking in

merit and thus frivolous as a matter of law. See Howard v. King

,

707 F.2d 215, 219-20 (5th Cir . 1983). It is therefore DISMISSED

p ursuant to Local Rule 42.2. As we recently noted in H ampton v.

Transamerica

, No. 95-30061, (5th Cir. June 14, 1995) (unpublished),

this court has previously warned Glenn T. Hampton about sanctions

for s uch frivolous filings. The Clerk of this court shall not

accept any pleadings or other filings from or on behalf of

appellant without prior authority from a member of this court.

Hampton is cautioned that any attempt to file pleadings or other

documents that are frivolous in nature shall result in appropriate5

sanctions whi ch may include, without limitation, double costs,

attorneys fees, fines, and contempt of court.