                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

Nicosia v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4589




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4589


                               SALVATORE NICOSIA,
                                         Appellant

                                            v.

                           JO ANNE B. BARNHART,
                      COMMISSIONER OF SOCIAL SECURITY


                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 02-cv-02078)
                    District Judge: Honorable James F. McClure, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 8, 2005

           Before: RENDELL, FISHER and GREENBERG, Circuit Judges.

                              (Filed: December 20, 2005)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Salvatore Nicosia appeals the dismissal of his action for judicial review of the

Commissioner of Social Security’s decision to deny his request for a waiver of an

overpayment. Our jurisdiction arises under 28 U.S.C. § 1291. For the reasons set forth
below, we will affirm.

                                             I.

       Salvatore Nicosia received disability payments from the Social Security

Administration (“SSA”) from September 1992 until October 1995. He informed the

SSA promptly when he began working in September 1993, however, the benefits he

received did not reflect his changed employment status. Due to the Administration’s

error, Nicosia received approximately $7,000 in benefits to which he was not entitled.

       For the most part, Nicosia’s attorney appears to have been diligent in

corresponding with the SSA about his client’s health and work status. Nonetheless, the

Administration informed Nicosia in November 1995 that it would seek reimbursement

for the overpayment in benefits. Nicosia sought a waiver of overpayment recovery,

which the SSA denied on June 17, 1999. At that time, the Administration informed

Nicosia that he could appeal the denial to an Administrative Law Judge (“ALJ”) within

60 days. Nicosia did not do so for more than fourteen months, and both the ALJ and

Appeals Council dismissed his administrative appeal as untimely. When Nicosia sought

judicial review of this decision, the District Court dismissed for lack of subject matter

jurisdiction.

                                             II.

       The district courts have jurisdiction to review decisions of the Commissioner of

Social Security under 42 U.S.C. § 405(g). Only final decisions may be reviewed by the


                                             2
courts. In this Circuit, as in the majority of others, a pre-hearing dismissal by an ALJ or

the Appeals Council of an untimely request for a hearing is not a final decision under §

405(g), and therefore not subject to review. Bacon v. Sullivan, 969 F.2d 1517, 1519 (3d

Cir. 1992); Penner v. Schweiker, 701 F.2d 256, 260 (3d Cir. 1983).

       Nicosia argues that applying this rule to the instant case produces an unjust result

because it was only due to the Administration’s mistake that he is in a position where he

is required to return the overpayments. Had the SSA responded promptly when Nicosia

informed it that he was working, he would never have had to seek a waiver of

overpayment recovery or have been required to appeal within sixty days when the waiver

was denied. The SSA contends that Nicosia should have realized he would not be

entitled to full benefits after the trial work period. By continuing to cash the benefits

checks he received, the Administration urges that Nicosia made himself liable for the

overpayments, regardless of SSA’s own negligence.

       In Bacon, we applied the rule that a pre-hearing dismissal by an ALJ or the

Appeals Council of an untimely request for a hearing is not subject to review, despite the

fact that the result was arguably more unjust than in the instant case. In that case, the

SSA dismissed Jane Bacon’s appeal to the Appeals Council because it was post-marked

just one day late due to the negligence of her attorney’s mail room. Nevertheless, this

Court held that the district court did not have jurisdiction to review the Appeals

Council’s decision not to entertain Bacon’s appeal because it was not a final order.


                                              3
Bacon, 969 F.2d at 1520-21. The same reasoning applies here to deny the District Court

of subject matter jurisdiction under 42 U.S.C. § 405(g).1

                                             III.

       Nicosia could also establish subject matter jurisdiction by raising a colorable

constitutional claim that is collateral to the substantive claim of entitlement. Califano v.

Sanders, 430 U.S. 99, 109 (1977). Thus, we found in Penner that, despite the fact that

the district court lacked subject matter jurisdiction under 42 U.S.C. § 405(g), it had

jurisdiction to consider a due process claim where the SSA failed to follow its own

notification procedures. 701 F.2d at 260-61.

       Nicosia raises a due process claim in the instant case, arguing that “he was not

afforded the opportunity to exhaust his administrative remedies.” (Appellant Br. at 22.)

This is incorrect. Nicosia and his attorney were notified of the SSA’s decision on June

17, 1999 to deny his request for a waiver of overpayment recovery and informed that

they had sixty days to appeal. This notification provided Nicosia with the opportunity to

exhaust his administrative remedies. Moreover, the constitutional violation he alleges is

directly related to his entitlement claim, and therefore does not provide independent

grounds for jurisdiction. Nicosia “received all the process due to [him], and the


       1
        Nicosia also claims the District Court should have reviewed the administrative
record before determining that it lacked subject matter jurisdiction. This argument is
without merit. It was not necessary for the District Court to review the full administrative
record to determine that the pre-hearing dismissal of Nicosia’s untimely request for a
hearing was not a final order.

                                              4
dismissal of [his] claim was unreviewable.” Bacon, 969 F.2d at 1522.

      Finding no error, we will affirm the District Court




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