                      UNITED STATES COURT OF APPEALS
Filed 1/6/97
                             FOR THE TENTH CIRCUIT



    GARY G. LOHSE,

                Plaintiff-Appellant,

    v.                                                   No. 96-1098
                                                     (D.C. No. 95-S-2945)
    SHIRLEY S. CHATER, Commissioner                       (D. Colo.)
    of Social Security,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff, proceeding pro se, brought this action seeking damages resulting

from the Social Security Administration’s alleged unconstitutional delay in

adjudicating his claim for disability benefits. By order and judgment entered June

14, 1994, this court reversed the Secretary’s denial of plaintiff’s 1990 application

for disability benefits and remanded the case to the agency for further

proceedings. Lohse v. Shalala, No. 93-1392 (10th Cir. June 16,

1994)(unpublished order and judgment). Plaintiff filed the present action in late

November 1995, claiming that he had yet to receive a hearing before an

administrative law judge (ALJ) after remand from this court. Plaintiff alleged

that, as a result of the agency’s delay in adjudicating his claim, he had been

“deprived of Medicare for much needed medical treatment, medical maintenance

medications, which are life threatening, if not able to purchase,” and he had

“endured pain & suffering, undue hardship, loss of property, increased major

depression, also much needed medical treatment, prescribed by orthopedic

surgeon and primary care physician and psychiatrist.” R. Vol. I, Doc. 3 at 2.

      The district court ordered the Commissioner to file a Martinez 1 report,

which she did in February 1996. The Martinez report stated that a hearing had


1
      Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

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been held on plaintiff’s disability claim on February 6, 1996, but that the ALJ had

not yet issued a decision. Plaintiff did not respond to the Martinez report and, on

March 12, 1996, the district court entered an order dismissing this action as

frivolous under 28 U.S.C. § 1915(d). Plaintiff subsequently filed a motion

seeking to strike the dismissal order and to obtain additional time in which to

respond to the Martinez report. The district court denied the motion, and this

appeal followed.

      The district court dismissed the action on essentially three grounds. First,

the court concluded that it did not have jurisdiction over the action under

42 U.S.C. §§ 401-433 because the Commissioner had not yet issued a final

decision on plaintiff’s disability application, so plaintiff had not met the finality

requirements of § 405(g). Second, the court determined that, to the extent

plaintiff sought relief in the nature of an order directing the agency to adjudicate

his claim more quickly, such relief was barred pursuant to Heckler v. Day, 467

U.S. 104 (1984). Finally, the court determined that, to the extent plaintiff sought

to allege a Bivens 2 claim against a federal official, the claim was without merit.

The court reasoned that, because plaintiff was already receiving social security



2
       Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388, 397 (1971)(holding that a constitutional violation by a federal
official acting under color of his authority may give rise to an action for
damages).

                                          -3-
benefits based on an application he filed in December 1994, and because he was

awaiting the agency’s determination of his entitlement to additional benefits

under his 1990 application, the facts did not establish that plaintiff had been

deprived of a constitutional right.

      We review the district court’s dismissal under § 1915(d) for an abuse of

discretion. See Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995). Based

upon our review of the record, the parties’ briefs, and the pertinent law, we affirm

the dismissal, though on different grounds than those upon which the district

court relied. See Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir.

1993)(recognizing that an appellate court can affirm a district court for reasons

other than those relied upon by the district court).

      Contrary to the district court’s statement, the requirement that a claimant

exhaust his administrative remedies and obtain a final decision from the

Commissioner before seeking judicial review under § 405(g) is not jurisdictional,

and can be waived under appropriate circumstances. Bowen v. City of N.Y., 476

U.S. 467, 482-83 (1986); Mathews v. Eldridge, 424 U.S. 319, 328 (1976). The

only element of § 405(g)’s finality requirement that is jurisdictional, and,

therefore, not subject to waiver, is the requirement that a claim for benefits

actually be presented to the agency. City of N.Y., 476 U.S. at 483; Mathews, 424

U.S. at 328. Plaintiff has fulfilled this nonwaivable requirement.


                                          -4-
      Even when liberally construed, however, see Haines v. Kerner, 404 U.S.

519, 520-21 (1972), a fair reading of plaintiff’s complaint reveals that he seeks

only money damages for the injuries resulting from the agency’s alleged

unconstitutional delay. He does not seek injunctive or declaratory relief, nor does

he seek relief in the nature of mandamus. 3

      Therefore, we need not consider whether the facts of this case would

warrant waiving the § 405(g) requirement that a claimant exhaust his

adminstrative remedies and secure a final agency decision before seeking judicial

review. See City of N.Y., 476 U.S. at 483-84 (setting forth factors to consider).

Instead, we need only consider whether plaintiff can bring a claim for money

damages resulting from alleged unconstitutional conduct by the agency in

adjudicating his claim for benefits. Based upon the Supreme Court’s opinion in

Schweiker v. Chilicky, 487 U.S. 412 (1988), we think the clear answer is “No.”

      The plaintiffs in Chilicky were social security claimants whose disability

benefits had been improperly terminated, allegedly as a result of unconstitutional



3
      Contrary to the district court’s suggestion, if plaintiff were seeking
injunctive relief aimed at ordering the agency to adjudicate his claim more
quickly, the Supreme Court’s opinion in Heckler v. Day would not bar such relief.
The Court in Day reviewed a district court’s injunction that set mandatory
deadlines for the agency’s adjudication of all future claims, statewide. 467 U.S.
109-10. While striking down such broad, prospective relief, id. at 110-11, 119,
the Court made clear that it was not prohibiting the proper use of injunctive relief
to remedy an individual claim, id. at 119 n.33.

                                         -5-
policies attributable to the defendant officials. The plaintiffs sought money

damages for “emotional distress and for loss of food, shelter and other necessities

proximately caused by [defendants’] denial of benefits without due process,” id.

at 419 (quotation omitted), which injuries, the plaintiffs contended, could not be

fully recompensed by the retroactive award of back benefits, id. at 428. While

“agree[ing] that suffering months of delay in receiving the income on which one

has depended for the very necessities of life cannot fully be remedied by the

belated restoration of back benefits,” id. at 428 (quotation omitted), the Court

refused, nonetheless, to create a Bivens remedy. Although “a Bivens remedy

would obviously offer the prospect of relief for injuries that must now go

unredressed,” id. at 425, the Court concluded that such a remedy was not

available because “Congress has provided what it considers adequate remedial

mechanisms for constitutional violations that may occur in the course of [the

program’s] administration,” id. at 423, “and we see no legal basis that would

allow us to revise its decision,” id. at 429.

      The Court’s rationale for not recognizing a Bivens remedy in Chilicky is

equally applicable here. Therefore, because plaintiff asserts only a Bivens claim

for damages, the district court did not abuse its discretion in dismissing plaintiff’s

complaint under § 1915(d).




                                           -6-
      Because we conclude that plaintiff’s complaint seeks only money damages

for injuries resulting from alleged unconstitutional delays in adjudicating his

claim for benefits and the Supreme Court’s opinion in Chilicky clearly bars such a

claim, we conclude that the district court did not abuse its discretion in dismissing

plaintiff’s case under 28 U.S.C. § 1915(d).

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED. All outstanding motions are denied as moot.

      The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




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