                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                     November 28, 2008
                            FOR THE TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

    CHARLES JAMES GRIFFIN, JR.,

                Plaintiff-Appellant,

    v.                                                    No. 08-1054
                                                  (D.C. No. 1:07-cv-00176-JLK)
    MICHAEL J. ASTRUE, Commissioner                         (D. Colo.)
    of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.



         Charles James Griffin, Jr., proceeding pro se, appeals from the district

court’s dismissal of his action for lack of subject matter jurisdiction due to

Mr. Griffin’s failure to exhaust his administrative remedies. The Commissioner

of Social Security has filed a motion to dismiss the appeal, asserting that upon

further factual review, the agency has determined that a remand for further


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
administrative proceedings is appropriate. Mr. Griffin, whose pro se filings are

entitled to a liberal construction, see Wheeler v. Comm’r, 528 F.3d 773, 781

(10th Cir. 2008), has objected to the motion to dismiss. Exercising jurisdiction

under 28 U.S.C. § 1291, we grant the motion to dismiss, subject to the

Commissioner’s agreement, as stated in his motion, to consider Mr. Griffin’s

filing of this action as a timely filed request for a hearing before an administrative

law judge (ALJ), and to remand the matter to an ALJ for a hearing.

                                    Background

      In 1993, the Commissioner determined that Mr. Griffin was entitled to

disability insurance benefits (DIB) under Title II of the Social Security Act.

Those benefits were later reduced by an offset for state workers’ compensation

benefits. Mr. Griffin filed a request for reconsideration, which was denied by a

Notice of Reconsideration dated December 11, 2006 (Notice). In the Notice, the

Commissioner advised Mr. Griffin that he had the right to appeal the decision by

requesting a hearing before an ALJ within sixty days of the date he received the

Notice.

      Mr. Griffin did not request a hearing before an ALJ; instead, he filed this

action on January 24, 2007, naming the Commissioner and three individual

employees of the Social Security Administration (SSA) in their official capacity.

The Commissioner moved to dismiss the official-capacity claims against the

individual defendants on the ground that Mr. Griffin’s claims were really against

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the United States in the form of the Commissioner. The Commissioner also

moved to dismiss the action for lack of subject matter jurisdiction.

      The district court granted the motion for the reasons stated in it, dismissing

the official-capacity claims and the case. Mr. Griffin asked the court to

reconsider its dismissal of the case or, in the alternative, to consider his request as

a notice of appeal. The district court denied the motion to reconsider but

considered the request to be Mr. Griffin’s notice of appeal. Mr. Griffin thereafter

filed an additional notice of appeal.

                                        Analysis

      By statute, federal courts have jurisdiction to review “any final decision of

the Commissioner.” 42 U.S.C. § 405(g); see also id. § 405(h) (“No findings of

fact or decision of the Commissioner . . . shall be reviewed by any person,

tribunal, or governmental agency except as herein provided.”). The term “final

decision” is not defined in the statutes, and “its meaning is left to the

[Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749,

766 (1975). To that end, the Commissioner has promulgated regulations setting

out a four-step administrative review process. See 20 C.F.R. § 404.900(a). A

determination about “[a] reduction in [a claimant’s] disability benefits because

[the claimant] also receive[s] benefits under a workmen’s compensation law” is

an “initial determination.” Id. § 404.902(e). If dissatisfied with the initial

determination, a claimant may ask for reconsideration. Id. § 404.907. If the

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claimant is dissatisfied with the reconsideration, he may request a hearing before

an ALJ, id. §§ 404.929, 404.930, and if still dissatisfied after the ALJ’s decision,

the claimant may request that the Appeals Council review the decision, id.

§ 404.967. After the Appeals Council either denies the request for review or

grants the request and issues its own decision, the claimant may seek judicial

review by filing an action in the proper federal district court within sixty days

after receiving notice of the Appeals Council’s decision. Id. § 404.981.

      Mr. Griffin completed only the first two steps of this process. Because

there is no indication that further administrative proceedings would be futile or

that the Commissioner has waived further exhaustion, the district court properly

dismissed his action for failure to exhaust his administrative remedies. See

Heckler v. Ringer, 466 U.S. 602, 617-19 (1984) (discussing exceptions to

exhaustion doctrine and affirming dismissal for failure to exhaust); see also

Weinberger, 422 U.S. at 765 (explaining that among other things, exhaustion is

ordinarily required to “prevent[] premature interference with agency processes, so

that the agency may function efficiently and so that it may have an opportunity to

correct its own errors”). But rather than affirm the district court’s dismissal, we

elect to grant the Commissioner’s motion to dismiss this appeal. In the motion,

the Commissioner states that the SSA,

      in its role as finder of fact, has further reviewed [Mr.] Griffin’s case
      and determined that a remand for further administrative proceedings
      is appropriate. If the Court grants this motion, the Appeals Council

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      will consider [his] filing of the district court civil action (D.C. NO.
      07-cv-00176-JLK) as a timely filed request for hearing before an
      [ALJ]. The Appeals Council will remand the matter to an ALJ for a
      hearing on SSA’s determination to offset [Mr.] Griffin’s Social
      Security disability benefit amount because he was also receiving
      federal workers’ compensation benefits.

Mot. to Dismiss at 1. Although Mr. Griffin opposes the motion, he has not

advanced any reasoned argument that persuades us to deny it; indeed, he would be

disserved by the alternative—affirmance of the district court’s dismissal.

Accordingly, subject to the conditions set forth in the motion regarding a remand

for a hearing before an ALJ, we GRANT the motion to dismiss this appeal. We

encourage Mr. Griffin to take advantage of the Commissioner’s generous offer,

and we thank the Commissioner for advancing it.

      The appeal is DISMISSED for the reasons stated above. 1


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




1
       In his complaint and his motion to reconsider, Mr. Griffin also requested
that the district court appoint an attorney to represent him. Mr. Griffin has not
challenged the district court’s implicit denial of those requests, and to the extent
he has asked for counsel on appeal in his “Third Brief Motion Answer,” his
request is denied.

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