                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 24, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-41511
                           Summary Calendar



                          LELIA C. PETTIGREW,

                                                Plaintiff-Appellant,

                                versus

  JO ANNE B. BARNHART, Commissioner of Social Security; ET AL.,

                                                           Defendants,

    VERNON ARRELL, Commissioner of Rehabilitation Commission
of Texas, sued in his official capacity under contract with SSA,

                                                 Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 5:02-CV-266
                       --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

     Leila C. Pettigrew appeals the district court’s dismissal of

his claims against Vernon Arrell, the Commissioner of the Texas

Rehabilitation    Commission   (TRC).    Pettigrew   argues   that     the

district court had jurisdiction over his claims against Arrell

pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1383(c)(3).


     1
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     In the district court, Pettigrew explicitly abandoned his

claim that the district court had jurisdiction over his claims

against Arrell pursuant to the Social Security Act as provided for

in 42 U.S.C. § 1383(c)(3).   Moreover, the district court’s grant of

Arrell’s second motion to dismiss was based not on lack of subject

matter jurisdiction under 28 U.S.C. § 1331 but on the magistrate

judge’s determination that Pettigrew failed to argue in his brief

to the district court that Arrell unconstitutionally used the

framework analysis.   Pettigrew does not argue on appeal that the

district court erred when it dismissed his 28 U.S.C.

§ 1331-based claims against Arrell based on Pettigrew’s abandoning

them by failing to brief them in the district court.         He has

therefore waived this issue on appeal.      See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

     Pettigrew’s argument that he should not be required to exhaust

administrative remedies on remand lacks merit inasmuch as he has

already exhausted his administrative remedies.       see Harper v.

Bowen, 813 F.2d 737, 739 (5th Cir. 1987).

     AFFIRMED.




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