                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 18 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    GEORGE A. GUY,

                Plaintiff - Appellant,

    v.                                             Nos. 02-6166 & 02-6210
                                                   (D.C. No. CIV-01-399-R)
    JO ANNE B. BARNHART,                              (W.D. Oklahoma)
    Commissioner, Social Security
    Administration,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In case No. 02-6166, plaintiff George A. Guy appeals the dismissal of his

claims by the district court for want of subject matter jurisdiction. In case

No. 02-6210, Mr. Guy appeals the district court’s order denying his application to

proceed on appeal in forma pauperis. We affirm the district court in both matters.

      This matter began when Mr. Guy applied for Social Security benefits,

alleging disability due to arthritic impairments to his hip and knee. After his

application was denied by the administrative law judge (ALJ) and the Appeals

Council denied review, Mr. Guy initiated an action for review in the district court

(the 1998 case). That court ordered a remand for further consideration, and

Mr. Guy appealed to the Tenth Circuit, arguing that the district court should not

have remanded but, instead, should have awarded immediate benefits.

      While his appeal was pending in this court, the Appeals Council, in an

order dated April 5, 2000, remanded the case to the ALJ. Despite having been

repeatedly informed by Mr. Guy’s representative that an appeal of the district

court’s remand order was pending in this court, the ALJ issued an order of

dismissal dated September 29, 2000, which incorrectly informed Mr. Guy of his

appeal rights. When Mr. Guy attempted to appeal the ALJ’s order of dismissal,

the Appeals Council issued a letter informing Mr. Guy that the cover letter to the

ALJ’s September 29, 2000 decision incorrectly described his appeal rights and

that if he wished to contest that dismissal he needed to file a new civil action in


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the district court. Relying on this advice, Mr. Guy filed a new complaint in the

district court (the 2001 case), requesting some of the same relief he had asked for

in the 1998 case, and attempting to appeal the Appeals Council’s letter and the

ALJ’s order of dismissal. The district court referred the 2001 case to a magistrate

judge who recommended dismissing the case for lack of jurisdiction. Accepting

this recommendation, the district court dismissed Mr. Guy’s 2001 case for lack of

subject matter jurisdiction, and Mr. Guy appeals.

       On September 20, 2001, after Mr. Guy had filed the 2001 case, the Appeals

Council vacated its April 5, 2000 remand order to the ALJ, thus negating any

administrative action taken while the 1998 case was on appeal to this court

including its own orders and those of the ALJ. On October 30, 2001, a panel of

this court affirmed the district court’s remand of the 1998 case.   Guy v.

Massanari , No. 00-6148, 2001 WL 1334390 (10th Cir. Oct. 30, 2001),

cert. denied , 123 S. Ct. 257 (2002).

       “We review a district court’s dismissal for lack of subject matter

jurisdiction de novo.”   Aguilera v. Kirkpatrick , 241 F.3d 1286, 1292 (10th Cir.

2001). A district court “lacking jurisdiction cannot render judgment but must

dismiss [when] it becomes apparent that jurisdiction is lacking.”    Tuck v. United

Servs. Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988) (quotation omitted). As

both the magistrate judge and the district judge have explained, the Appeals


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Council’s September 20, 2001 order vacated its earlier April 5, 2000 remand

order. This court then affirmed the order of the district court in the 1998 case

remanding it back to the agency for further consideration. Because the agency’s

review process has not yet been completed, there is no final order within the

meaning of 42 U.S.C. § 405(g) upon which to invoke the district court’s subject

matter jurisdiction. A federal court has jurisdiction over a Social Security case

only when the administrative review process has been completed.          See 20 C.F.R.

§ 416.1400(a)(5). The district court was thus correct to dismiss this case.

       In his appeal, Mr. Guy makes several arguments which we may not reach.

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist, the only function remaining

to the court is that of announcing the fact and dismissing the cause.”     Steel Co. v.

Citizens for a Better Env’t , 523 U.S. 83, 94 (1998) (quotation omitted).

       We can, however, note our total agreement with the frustration expressed

by the magistrate judge over the agency’s handling of this matter:

             Plaintiff repeatedly advised the ALJ that his case was pending
       on appeal before the Tenth Circuit and was therefore not ripe for
       administrative proceedings. Nevertheless, the ALJ proceeded with
       the administrative hearing and ultimately ordered the case dismissed.
       Thereafter, when Plaintiff attempted to appeal the dismissal, the
       Appeals Council advised Plaintiff that he could obtain a judicial
       review of that dismissal by filing a new civil action, at which time he
       brought this action. Thus, it appears to the undersigned that the
       considerable time and effort expended on this matter could have been
       avoided had the ALJ and the Appeals Council given reasonable

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      consideration to the record and the information provided to them by
      Plaintiff.

R. doc. 27, at 6 n.3.

      In case No. 02-6166, the judgment of the United States District Court

for the Western District of Oklahoma dismissing the 2001 case for lack of subject

matter jurisdiction is AFFIRMED. In case No. 02-6210, Mr. Guy’s motion

to add an argument to his appeal is GRANTED, and the appeal of the district

court’s denial of in forma pauperis status on appeal is AFFIRMED. To the extent

Mr. Guy renews his request for IFP in this court, that request is similarly

DENIED. Mr. Guy has failed to present a reasonable nonfrivolous argument

rebutting the district court’s conclusion that it lacked subject matter jurisdiction.

See McIntosh v. United States Parole Comm’n     , 115 F.3d 809, 812 (10th Cir.

1997) (applying 28 U.S.C. § 1915).


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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