                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT


     ___________

      No. 99-4099
     ___________

In re: Arlene Otis,                        *     On Petition for Writ
                                           *     Of Mandamus.
               Petitioner.                 *


      __________

      No. 99-4341
      __________

Arlene Otis,                           *
                                       *
             Plaintiff-Appellant,      *
                                       *
      v.                               *     Appeal from the United States
                                       *     District Court for the
Kenneth S. Apfel, Commissioner         *     District of Minnesota.
of Social Security,                    *
                                       *
             Defendant-Appellee.       *
                                  ___________

                             Submitted: January 3, 2000
                                 Filed: January 28, 2000
                                     ___________

Before RICHARD S. ARNOLD, BRIGHT, and HANSEN, Circuit Judges.
                           ___________
PER CURIAM.

        Petitioner-Appellant Arlene Otis appeals from a judgment denying her pro se
motion for a temporary restraining order and a preliminary injunction against the
Commissioner seeking to enjoin the Social Security Administration (SSA) from
suspending her social security disability benefits. After the district court denied her
relief, Ms. Otis filed a pro se petition for a writ of mandamus with this court, seeking
an order directing the district court to enter a temporary restraining order preventing the
SSA from suspending her benefits. We deny the petition for the writ of mandamus, and
we summarily affirm the judgment of the district court.

        Ms. Otis is a supplemental security income beneficiary. She lives in Minnesota.
In September of 1999, the SSA informed her that her benefits would be suspended
beginning in October 1999, because an outstanding felony forgery warrant for her arrest
issued by the Circuit Court of Cook County, Illinois, remained unsatisfied. Ms. Otis
was advised that she could contest the suspension by requesting a case review and
attending an informal or formal conference at the SSA office, and that she could also
ask that her benefits be continued. While she requested such a conference and
appointments were made for her and then rescheduled at her request, she failed to
appear for the conference scheduled for October 14, 1999. Instead, on October 12,
1999, she filed a pro se complaint in the district court seeking a temporary restraining
order, a preliminary injunction, and a permanent injunction. Her motion for a
temporary restraining order was denied after a hearing. A formal administrative
conference was then scheduled by the SSA for November 8, 1999, and she was so
advised. The SSA did not suspend her benefits as originally announced and paid them
for October and November, but warned her that she might have to pay them back if the
entitlement issue was not resolved in her favor. She attended the formal conference but
failed to satisfy the SSA that the Illinois warrant had been resolved. On November 15,
1999, the SSA issued a notice of reconsideration, indicating that her benefits would be
suspended after her November check. The notice also informed her of her right to

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appeal the suspension decision by requesting a hearing before an administrative law
judge (ALJ) within 60 days. Instead of pursuing further her administrative remedies,
Ms. Otis filed another motion in the district court again seeking a temporary restraining
order. On November 23, 1999, the district court again held a hearing on her motion,
denied the same, and ordered the case closed. Judgment was entered on November 24,
1999. On November 29, 1999, Ms. Otis filed her petition for emergency writ of
mandamus with this court, and on December 15, 1999, she appealed the November 24,
1999, judgment by the district court.

       This panel considered the papers filed with us in the mandamus proceeding as
the briefs on the appeal and held argument on both matters by conference call on
January 3, 2000. During that argument, this court was informed that Ms. Otis has now
requested a hearing before an ALJ and that such a hearing will be scheduled by the
SSA.

       The SSA suspended Ms. Otis's benefits, acting pursuant to 42 U.S.C. §
1382(e)(5)(A) and (e)(6), which provide that no person shall be considered an eligible
individual for benefit purposes with respect to any month, if during that month the
person is fleeing to avoid prosecution for a felony under the laws of the place from
which the person flees.

       It is clear that Ms. Otis has not exhausted her administrative remedies within the
SSA to contest the suspension of her benefits, and until she has done so, the district
court acted well within its discretion to deny her motions for preliminary relief. See
Rowden v. Warden, 89 F.3d 536, 537 (8th Cir. 1996); Medellin v. Shalala, 23 F.3d
199, 204 nn.4-5 (8th Cir. 1994). In this case, there exists an administrative procedure
for determining whether or not Ms. Otis is the same person named in the outstanding
Illinois warrant, a procedure Ms. Otis has failed fully to use.




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       Ms. Otis does not meet the criteria set forth in Rodabaugh v. Sullivan, 943 F.2d
855, 857 (8th Cir. 1991), for waiver of the exhaustion requirement. Because the
petitioner has adequate administrative means to attain relief, and no judicial usurpation
of power is involved, the extraordinary remedy of mandamus is unwarranted. See In
re Kansas City Star Co., 73 F.3d 191, 194 (8th Cir. 1996).

        Accordingly, we affirm the district court's judgment and deny the petition for writ
of mandamus. We do so with an understanding from the government's representation
at oral argument that the SSA will undertake to give Ms. Otis a prompt hearing before
an ALJ and that the SSA has the discretion to continue Ms. Otis's benefits, reserving
its right of recoupment, in the interim. Ms. Otis's motion for leave to proceed in forma
pauperis in both the appeal and the mandamus proceeding is granted.

BRIGHT, Circuit Judge, concurring separately.

      I concur in the result but add this statement.

        Ms. Otis states that she is a diabetic and may die if deprived of insulin. She
states that she has no funds to purchase that needed medication. If her statement is
true, this situation cries out for some relief.

       At the hearing on this matter, counsel for the SSA conceded that the agency has
the power to continue benefits to Ms. Otis pending a hearing and determination of the
issues. If her life or her health is in jeopardy, I suggest that the SSA should continue
her benefits, as may be permitted under the law and regulations, subject to repayment
if Ms. Otis is unsuccessful in further administrative proceedings.

      I also believe that Ms. Otis raises some constitutional issues that may be of
concern in the administrative proceedings. She will need counsel to properly present


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these and other issues. Ms. Otis should seek counsel through legal aid services in
Minnesota.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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