                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3220
                         ___________________________

Charles E. Mitchael, on behalf of himself and all others similarly situated; Michael
 Calvert, on behalf of himself and all others similarly situated; Wayne Herrod, on
   behalf of himself and all others similarly situated; Joyce Patton, on behalf of
 himself and all others similarly situated; Paul David Duvall, on behalf of himself
 and all others similarly situated; William S. Wombe, on behalf of himself and all
   others similarly situated; Donald H. Jones, on behalf of himself and all others
 similarly situated; Elmer E. McVay, on behalf of himself and all others similarly
   situated; Carl R. Moore, on behalf of himself and all others similarly situated

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

           Carolyn W. Colvin, Acting Commissioner of Social Security

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: September 21, 2015
                             Filed: January 13, 2016
                                 ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.
       In the Eighth Circuit, dual status National Guard technicians who apply for
Social Security benefits after February 3, 2011, are able to take advantage of our
decision in Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011) to avoid application of
the Windfall Elimination Provision (WEP). Plaintiffs are seeking to represent a class
of dual status National Guard technicians who had their benefits determined prior to
the issuance of the Petersen decision and would like to have their benefits readjusted
to take advantage of the decision. The district court1 dismissed their complaint for
lack of jurisdiction. We affirm.

                                          I.

      On February 3, 2011, we held in Petersen v. Astrue, 633 F.3d 633 (8th Cir.
2011), that the WEP did not apply to David Petersen, a retired, dual status National
Guard technician, for purposes of calculating his Social Security Retirement benefit
pursuant to 42 U.S.C. § 415(a)(7)(A) (providing exception to application of WEP
where pension payments are “based wholly on service as a member of a uniformed
service”).2 Although the Commissioner of the Social Security Administration (SSA)


      1
        The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
      2
       In Petersen v. Astrue, we explained:

      The WEP was enacted in 1983 to eliminate the unintended benefits
      windfall that occurs when workers who split their career between
      covered employment (required to pay Social Security taxes) and
      non-covered employment (exempt from Social Security taxes). 42
      U.S.C. § 415. This non-covered employment is often federal
      employment that, prior to 1984, was exempt from Social Security taxes
      because federal employees contributed to the federal civil service
      pension which was “designed to take the place both of social security
      and a private pension plan for workers who remain in [federal]
      employment throughout their careers.” See H.R. Rep. No. 98–25, at 22

                                         -2-
continues to disagree with our decision, she issued an Acquiescence Ruling (AR)
directing that the Petersen rule should apply to all applications for Social Security old
age and disability benefits received after February 3, 2011, from dual status National
Guard technicians who receive a Civil Service Retirement System pension and who
are permanent residents of a State within the Eighth Circuit. See 77 Fed. Reg. 51,842,
51,843 (Aug. 27, 2012).

       Plaintiffs in this action are former dual status National Guard technicians who
live in states in the Eighth Circuit and had their Social Security benefits determined
prior to February 3, 2011, and thus reduced by the WEP. These plaintiffs chose not
to pursue a challenge to the application of the WEP to their benefits determination at
the time the SSA made that determination. They now seek class certification in this
action to compel the Commissioner to recalculate the amount of their benefit in order
that they may take advantage of the Petersen decision.

      The district court dismissed the plaintiffs’ complaint for lack of jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). Plaintiffs appeal the district court’s
dismissal.



      (1983), reprinted in 1983 U.S.C.C.A.N. 219, 240. Prior to the passage
      of the WEP, in calculating a beneficiary’s primary insurance amount
      from the beneficiary’s average monthly earnings, the Social Security
      Administration (SSA) did not consider whether the earnings came from
      covered or non-covered employment. As a result, beneficiaries that had
      a split career received both full Social Security benefits and whatever
      pension benefits were provided by the non-covered employment. The
      WEP requires a calculation of the Social Security benefit under a
      modified formula to account for the civil service pension benefits.

633 F.3d 633, 634-35. We determined in Petersen that service as a “dual status”
National Guard Technician qualified for § 415’s exception to the application of the
WEP for “service as a member of a uniformed service.” Id. at 637.

                                          -3-
                                           II.

       “We review de novo the grant of a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1).” Great Rivers Habitat Alliance v. Fed. Emergency
Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010) (quotation and citation omitted).
The burden of proving federal court jurisdiction is on the party seeking to invoke
federal jurisdiction. Id.

        The plaintiffs assert two overarching grounds for jurisdiction in this matter.
First, they claim that federal courts have jurisdiction under the federal mandamus
statute, 28 U.S.C. § 1361, to review the SSA’s procedures for administering the
benefits. Second, the plaintiffs argue jurisdiction can be found under 42 U.S.C.
§ 405(g) because their claims are collateral to the substantive claim and present
colorable constitutional issues. We address each claim in turn.

                                           A.

       The Social Security Act provides for “[a]ny individual” to seek judicial review
“after any final decision of the Commissioner of Social Security made after a hearing
to which he was a party . . . by a civil action [brought in federal court and]
commenced within sixty days . . . .” 42 U.S.C. § 405(g). Federal courts have
jurisdiction, however, under the federal mandamus statute, 28 U.S.C. § 1361, to
consider challenges to the procedures used in administering Social Security benefits.
See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 766-67 (5th Cir. 2011)
(collecting cases). Mandamus may issue under § 1361 against an officer of the United
States only in extraordinary situations and when the plaintiff can establish (1) “a clear
and indisputable right to the relief sought,” (2) the state officer “has a
nondiscretionary duty to honor that right,” and (3) there is “no other adequate
remedy.” Castillo v. Ridge, 445 F.3d 1057, 1060-61 (8th Cir. 2006). “In order for
mandamus to lie[,] the duty owed to the plaintiff must be ministerial and a positive

                                          -4-
command so plainly prescribed as to be free from doubt.” Keeny v. Sec’y of the
Army, 437 F.2d 1151, 1152 (8th Cir. 1971) (internal quotation omitted).

       We affirm the district court’s decision to reject the application of mandamus
jurisdiction. As the district court held, there is no clear, nondiscretionary duty on
behalf of the SSA to apply the Petersen decision to the plaintiffs. All plaintiffs had
their benefits finally determined by the SSA prior to February 3, 2011. The AR
applies only to applications made after that date. Thus, there is no clear,
nondiscretionary duty found in the AR to apply the Petersen ruling to the plaintiffs.
Under 20 C.F.R. § 404.987(b), the agency “may reopen a final determination or
decision on [its] own initiative, or [the petitioner] may ask that a final determination
or a decision to which [the petitioner was] a party be reopened. In either instance, if
[the agency] reopen[s] the determination or decision, [it] may revise that
determination or decision.” Therefore, this regulation, which is permissive in nature,
does not provide the necessary clear and non-discretionary duty for exercise of
mandamus jurisdiction. Finally, the statute, 42 U.S.C. § 404(a), provides that when
the Commissioner has determined that more or less than the correct amount of benefit
payments have been made then a correction shall occur in accordance with Social
Security regulations. This statute, which addresses “the correct amount of payment”
rather than the initial benefits determination, is not applicable because the
Commissioner has not made a finding that plaintiffs have not received the correct
amount of payment and there is no requirement that the Commissioner make a such
finding. Further, the regulations provide that “a change of legal interpretation or
administrative ruling” does not constitute “good cause” for reopening a benefits
determination. 20 C.F.R. § 404.989(b). Accordingly, the plaintiffs cannot establish
that there is a clear, non-discretionary duty of the Commissioner to reconsider their
benefits award, and thus the district court properly rejected the exercise of mandamus
jurisdiction.




                                          -5-
       The plaintiffs contend that because they are not seeking an award of benefits,
but rather they are challenging the procedures and formula used by the SSA to
administer benefits, federal courts can exercise mandamus jurisdiction. They claim
that their case is similar to the facts in Belles v. Schweiker, 720 F.2d 509 (8th Cir.
1983), wherein this court determined that mandamus jurisdiction was available. In
Belles, the plaintiff was seeking notice and a hearing to contest the SSA’s
determination that she received an overpayment. 720 F.2d at 510. The Commissioner
argued 42 U.S.C. § 405(h) precluded judicial review. Id. at 512. We noted that a
decision in the plaintiff’s favor there “would not entitle her to benefits, but would
instead give her a right to notice and a prerecoupment hearing.” Id. Accordingly, we
held that jurisdictional limits of § 405 did not prohibit the exercise of mandamus
jurisdiction where mandamus jurisdiction was otherwise appropriate. Id. The Belles
court declined to consider whether the exercise of mandamus jurisdiction was
appropriate in that case. Here, as explained above, mandamus jurisdiction is not
warranted because there is no clear, non-discretionary duty to reconsider plaintiffs’
benefits. Therefore, the holding in Belles does not support the plaintiffs’ argument.

                                           B.

       Alternatively, plaintiffs claim that the federal courts have jurisdiction over this
matter under 42 U.S.C. § 405(g). Section 405(g) provides for judicial review of “any
final decision of the Commissioner . . . made after a hearing.” Efinchuk v. Astrue, 480
F.3d 846, 848 (8th Cir. 2007) (quotation omitted). “Under § 405(g), courts generally
lack jurisdiction to review the Commissioner’s refusal to reopen the proceeding
because a refusal to reopen the proceeding is not a ‘final decision of the
Commissioner . . . made after a hearing.’” Id. (quoting 42 U.S.C. § 405(g)). An
exception to this rule exists where “the claimant challenges the refusal to reopen the
proceeding on constitutional grounds.” Id.




                                           -6-
       The plaintiffs claim two constitutional grounds that invoke the exception to
§ 405(g)’s jurisdiction limitations. The first is an equal protection claim. Plaintiffs
argue that they are being treated differently than other National Guard Technicians
who applied for benefits after February 3, 2011, and thus have the benefit of the
Petersen ruling. Second, the plaintiffs contend that their due process rights are
violated because they have vested right to increased benefits with no process available
to them to vindicate that right.

        Neither of these arguments present a colorable constitutional claim. As to
plaintiffs’ claim of an equal protection violation, the Supreme Court has explained that
courts have an obligation when they apply a rule of law to one litigant to “do so with
respect to all others not barred by procedural requirements or res judicata.” James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991); see also Harper v. Virginia
Dept. of Taxation, 509 U.S. 86, 97 (1993) (holding that when the Supreme Court
“applies a rule of federal law to the parties before it, that rule . . . must be given full
retroactive effect in all cases still open on direct review”). Here, the plaintiffs had
their benefits determined by the SSA prior to February 3, 2011. At the time of their
benefits determination, they had an opportunity to bring to the courts the same
argument presented successfully by the plaintiff in Petersen, but they failed to do so
in a timely manner. Their benefits determination is final, and there is a procedural bar
from reconsideration of those benefits. See Califano v. Sanders, 430 U.S. 99, 108
(1977) (holding that to allow a claimant to obtain judicial review of a closed decision
“simply by filing–and being denied–a petition to reopen his claim would frustrate the
congressional purpose, plainly evidenced in [§ 405(g)], to impose a 60-day limitation
upon judicial review of the Secretary’s final decision on the initial claim for benefits.
Congress’ determination so to limit judicial review to the original decision denying
benefits is a policy choice obviously designed to forestall repetitive or belated
litigation of stale eligibility claims.” (internal citation omitted)). Thus, the plaintiffs
cannot now present a colorable constitutional claim on equal protection grounds that
would justify the application of the exception to § 405(g)’s jurisdictional limitations.

                                           -7-
       Plaintiffs’ due process claim also does not support application of an exception
to § 405(g). Plaintiffs argue the SSA is obligated to implement some form of process
for them to seek a recalculation of their benefits under the Petersen rule. As discussed
above, plaintiffs had an opportunity to challenge the calculation of their benefits in the
same manner as the plaintiff in Petersen. This provided constitutionally adequate due
process, and there is no colorable due process violation alleged in the complaint. See
Lewellen v. Sullivan, 949 F.2d 1015, 1016 (8th Cir. 1991) (rejecting plaintiff’s claim
of due process violation where plaintiff knew of his right to challenge the SSA’s
disability determination but deliberately failed to exercise that right).

                                           III.

       Accordingly, we affirm the district court’s dismissal of the complaint for lack
of jurisdiction.
                      ______________________________




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