     ___________

     No. 93-3553
     ___________

Robert Lee Rowden,                    *
                                      *
           Appellant,                 *
                                      *
     v.                               *
                                      *
Janice L. Warden; Social              *
Security Administration,              *
                                      *
           Appellees.                 *

     ___________
                                          Appeals from the United States
     No. 95-1442                          District Court for the
     ___________                          Eastern District of Missouri

Robert Lee Rowden,                    *
                                      *
           Appellant,                 *
                                      *
     v.                               *
                                      *
Shirley S. Chater, Commissioner       *
of the Social Security                *
Administration,*                      *
                                      *
           Appellee.                  *

                                  ___________

                     Submitted:   September 28, 1995

                         Filed:   July 17, 1996
                                  ___________

Before McMILLIAN, BRIGHT and MAGILL, Circuit Judges.
                               ___________


McMILLIAN, Circuit Judge.




     *As of March 31, 1995, the Social Security Administration
     became an independent agency from the Department of
     Health and Human Services.     Therefore, the court has
     substituted Shirley S. Chater for Donna E. Shalala
     pursuant to Fed. R. App. P. 43(c).
     Robert Lee Rowden appeals from the final order of the District Court1
for the Eastern District of Missouri, dismissing for failing to exhaust his
administrative       remedies    his    claim      against   the     Social     Security
Administration (SSA) concerning his continued receipt of                      disability
benefits while incarcerated.          We affirm.


     When Rowden first applied for disability benefits in 1989, he signed
a statement agreeing to notify the SSA if he were imprisoned for conviction
of a felony.    Rowden was awarded disability benefits in 1990 due to a heart
impairment, and was convicted of a felony in October 1992.                    He did not
inform the SSA of his conviction.           In March 1993, the SSA notified Rowden
that it had learned of his conviction.             In May, the SSA informed Rowden
that his benefits were suspended effective October 1992, and that he owed
$5,334.60 in overpayment.        On June 8, Rowden submitted a request for a
waiver of collection of overpayment.               The SSA denied Rowden's waiver
request,     concluding   Rowden      was   not    without   fault   in   causing     the
overpayment.    After a personal conference, the SSA notified Rowden on May
25, 1994, that the decision to deny waiver of overpayment was correct, and
informed Rowden he had sixty days to request a review by an Administrative
Law Judge (ALJ).      Rowden did not do so.


     Rowden initiated a civil rights action against the SSA, claiming his
disability     benefits   were   wrongly      terminated.      The   district      court,
construing     the   complaint   as    asserting    jurisdiction     under    42   U.S.C.
§ 405(g), dismissed it as frivolous because Rowden did not assert that he
was participating in an approved




      1
       The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri, adopting the report and
recommendations of the Honorable Catherine D. Perry, then United
States Magistrate Judge for the Eastern District of Missouri, now
United States District Judge for the Eastern District of Missouri.

                                            -2-
rehabilitation program.           See 42 U.S.C. § 402(x)(1).2              Because Rowden had
attempted     to    amend   his    complaint       to    allege    that     he   was   attending
rehabilitation, we remanded the case for further proceedings.                          Rowden v.
Warden, No. 93-3553 (8th Cir. Nov. 19, 1993) (order).                       On remand, Rowden
amended his complaint asserting he was participating in the Missouri Sexual
Offenders Program.


          The SSA did not respond to the amended complaint for five months
because Rowden served an SSA employee, not the proper party.                       Once notified
of the pending action, the SSA moved to dismiss.                       The district court then
granted the SSA's motion, concluding that the court lacked subject matter
jurisdiction because Rowden had failed to exhaust his administrative
remedies by requesting a hearing before an ALJ.                         Rowden unsuccessfully
sought reconsideration, arguing his failure to exhaust was not intentional,
the   SSA   did    not   inform    him    of    his     rights    or    obligation     to    appeal
administratively, and prison officials mishandled his mail.


      On appeal, Rowden argues that, but for the SSA's delay in informing
him during the litigation that he had to exhaust his administrative
remedies, he would have complied.              Similarly, he argues that had the court
pointed     out    the   exhaustion      problem      rather     than    dismiss   his      initial
complaint as frivolous, he also would have filed a timely request for
hearing.    The SSA argues that any delay in the SSA answering the complaint
was caused by Rowden's failure to properly serve the agency and thus the
SSA is not responsible for Rowden's failure to exhaust his administrative
remedies.


      Rowden may seek judicial review of the Secretary's decision in this
case only after a final decision by the Secretary "made after a hearing."
42 U.S.C. § 405(g); see Medellin v. Shalala, 23 F.3d




      2
     The rehabilitation exception has been eliminated for benefits
paid beginning February 1995.      See Social Security Domestic
Employment Reform Act of 1994, Pub. L. No. 103-387, § 4, 1994
U.S.C.C.A.N. (108 Stat.) 4071, 4076.

                                               -3-
199, 202 nn.4-5 (8th Cir. 1994).      Because Rowden has not shown he requested
a hearing before an ALJ to appeal either the decision to terminate his
benefits or to deny a waiver of his overpayment, Rowden did not exhaust his
administrative remedies.        See 20 C.F.R. §§ 404.929 - .933 (request for
hearing before ALJ); 404.967 (Appeals Council review); 404.981 (judicial
review).    Although the exhaustion requirement may be waived in certain
limited circumstances, see Rodabaugh v. Sullivan, 943 F.2d 855, 857 (8th
Cir. 1991), Rowden has not met those conditions.


       In addition, Rowden may not assert estoppel, based on his assertion
that the district court and the SSA failed to inform him earlier of his
need   to   exhaust    his   administrative   remedies.   Estoppel   against   the
government requires a showing of affirmative misconduct, which Rowden has
not shown here.   See Olsen v. United States, 952 F.2d 236, 241 & n.2 (8th
Cir. 1991) (test for estoppel).      Thus, absent grounds to excuse exhaustion,
the district court was bound to dismiss for lack of jurisdiction.


       Accordingly, we affirm.


       A true copy.

             Attest:

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




                                        -4-
