                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-1998

Fitzgerald v. Apfel
Precedential or Non-Precedential:

Docket 97-1605




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Recommended Citation
"Fitzgerald v. Apfel" (1998). 1998 Decisions. Paper 135.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/135


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Filed June 8, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1605

KATHLEEN FITZGERALD,
       Appellant

v.

KENNETH S. APFEL*
Commissioner of Social Security

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 97-cv-2508)

Argued: March 13, 1998

Before: Stapleton, and Alito, Circuit Judges, and O'Kelley,
Senior District Judge**

(Opinion Filed: June 8, 1998)

       Robert Savoy (Argued)
       Three Neshaminy Interplex,
        Suite 301
       Trevose, PA 19053
       Counsel for Appellant
_________________________________________________________________

* Kenneth S. Apfel was sworn    in as Commissioner of Social Security on
September 29, 1997. Pursuant    to Rule 43(c)(1) of the Federal Rules of
Appellate Procedure, Kenneth    S. Apfel is substituted for John J.
Callahan as the defendant in    this suit.

** The Honorable William O'Kelley, United States Senior District Judge
for the Northern District of Georgia, sitting by designation.
       Michael R. Stiles, U.S. Attorney
       Eastern District of Pennsylvania
       Joan K. Garner, Ass't U.S. Attorney
       Deputy Chief, Civil Division

       Arthur J. Fried, General Counsel
       Charlotte Hardnett, Principal Deputy
       General Counsel
       John M. Sacchetti, Acting Associate
        General Counsel
       M. Ashley Harder (Argued)
       Office of the General Counsel
       Social Security Administration
       6401 Security Boulevard
       Room 651 Altmeyer Building
       Baltimore, Maryland 21235

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Appellant Kathleen Fitzgerald appeals from the dismissal
of her complaint against Kenneth S. Apfel, the
Commissioner of Social Security, by the district court. The
district court held that: it lacked subject matter jurisdiction
over her claim for benefits; interim benefits were not
authorized by statute; and Fitzgerald's due process claim
failed on the merits. On appeal, Fitzgerald argues that the
district court erred in concluding that interim benefits are
unavailable and that her due process claim failed to state
a claim upon which relief could be granted. Because we
find that the district court did not have jurisdiction over
Fitzgerald's claim for interim benefits, we will affirm the
dismissal of her complaint.1
_________________________________________________________________

1. Although Fitzgerald did not raise the issue on appeal, we note that the
district court correctly determined that it lacked jurisdiction over her
claim for disability benefits for the same reasons as it lacked
jurisdiction
over her claim for interim benefits, as will be discussed infra.

                               2
I.

Kathleen Fitzgerald applied for supplemental social
security income and disability insurance benefits on July
16, 1993, and August 31, 1993, respectively. Fitzgerald's
claims were denied initially and on reconsideration.
Fitzgerald filed a timely request for a hearing on October
24, 1994.

A hearing was held before an administrative law judge
("ALJ") on July 18, 1995. The ALJ issued a decision on
March 18, 1996, finding that Fitzgerald was not disabled.
On March 20, 1996, Fitzgerald requested review from the
Appeals Council. In her letter to the Appeals Council,
counsel requested that "this claim be treated as one
involving CRITICAL NEED and that the matter raised below
be considered as expeditiously as possible." (App. at 8).
Counsel did not elaborate on this request.

On November 29, 1996, Fitzgerald's counsel sent another
letter to the Appeals Council, stating that "[m]y client
Kathleen Fitzgerald is in desperate financial need. I
requested review on her behalf more than eight months
ago. I have heard nothing from you about the matter." (App.
at 10). Having not heard from the Appeals Council,
Fitzgerald began the present action on April 16, 1997.2

In her complaint, Fitzgerald alleged that she was disabled
and entitled to disability insurance benefits and
supplemental security income. She further alleged that she
was in dire financial straits due to the extensive delay in
deciding her application. Fitzgerald claimed that the failure
of the Appeals Council to rule on her request for more than
a year, despite the fact that she had informed them that
she was destitute, constituted a constructive denial of her
claim. She further alleged that the unreasonable delay
violated her Due Process rights under the Fifth Amendment
and the Social Security Act. Fitzgerald requested as relief:
_________________________________________________________________

2. On June 27, 1997, the Appeals Council remanded Fitzgerald's
application to the ALJ for further proceedings. A hearing was held on
November 14, 1997. Fitzgerald's application was again denied on
February 2, 1998. Counsel requested review by the Appeals Council on
February 4, 1998. That request is still pending.

                                3
that the district court find that she was entitled to the
benefits sought; interim benefits during the pendency of
any further proceedings; and "such other relief as the court
finds just and proper." (App. at 7). Fitzgerald filed a motion
requesting interim benefits on May 2, 1997.

On July 24, 1997, the district court issued an order
denying the motion for interim benefits. See Fitzgerald v.
Callahan, No. Civ. A. 97-2508, 1997 WL 438483 (E.D. Pa.
July 24, 1997). The district court held that interim benefits
were not provided for by statute and that it lacked the
equitable power to grant them. The court also dismissed
Fitzgerald's claim for benefits for lack of subject matter
jurisdiction, since she failed to exhaust her administrative
remedies. Finally, the court found that Fitzgerald's due
process claim failed to state a claim upon which relief could
be granted. This appeal followed.

II.

On appeal, Fitzgerald argues that the district court erred
in determining that interim benefits were not available and
that her due process claim failed as a matter of law. She
apparently concedes that the district court lacked
jurisdiction over her claim of entitlement to final benefits.
Because we find that the district court lacked jurisdiction
to consider the availability of interim benefits, we need not
decide whether such benefits are precluded by statute.

Jurisdiction over Social Security benefits cases is
provided by 42 U.S.C. S 405(g), which provides, in relevant
part: "[a]ny individual, after any final decision of the
Secretary made after a hearing to which he was a party . . .
may obtain a review of such decision by a civil action . . . ."
Ordinarily, judicial review is barred absent a "final decision"
by the Commissioner of Social Security. Mathews v.
Eldridge, 424 U.S. 319, 328 (1976).

A final decision is "central to the requisite grant of
subject matter jurisdiction." Id. The Supreme Court has
stated that the "final decision" requirement

       consists of two elements, only one of which is purely
       "jurisdictional" in the sense that it cannot be waived by

                               4
       the Secretary in a particular case. The waivable
       element is the requirement that the administrative
       remedies prescribed by the Secretary be exhausted.
       The nonwaivable element is the requirement that a
       claim for benefits shall have been presented to the
       Secretary.

Id.

If a plaintiff 's claim is collateral to her claim for benefits,
exhaustion may be waived under certain circumstances.
See Bowen v. City of New York, 476 U.S. 467, 483 (1986).
"A claim is collateral if it is not essentially a claim for
benefits." Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir.
1993) (citing Bowen, supra).

The district court lacked jurisdiction over Fitzgerald's
claim for interim benefits both because she failed to present
a demand for such benefits to the Commissioner and
because her claim is not collateral to a claim for benefits.
As to the former point, there is no indication in the record
that Fitzgerald ever requested interim benefits from the
Social Security Administration pending the outcome of the
proceedings. Although she presented a general claim of
disability, she did not address her claim of entitlement to
interim benefits due to the excessive delay to the
Commissioner. The failure to raise such a claim violates the
nonwaivable jurisdictional aspect of exhaustion and is fatal
to her claim.

Furthermore, the district court lacked jurisdiction over
Fitzgerald's claim for interim benefits because such a
demand is not collateral to her claim for final benefits.
Whether predicated on S 405(g) or on the due process
clause, it is beyond cavil that interim benefits are linked to
disability benefits. First, they are two forms of the same
entitlement. More importantly, Fitzgerald's claim to interim
benefits is linked to her entitlement to final benefits.
Indeed, Fitzgerald repeatedly emphasized in her briefs and
at argument that she was entitled to such benefits not just
because of the extensive delay, but also because of her
indigency and the merits of her case. Cf. Bush v. Shalala,
94 F.3d 40, 46 (2d Cir. 1996) ("absent a finding that the
claimant was actually disabled, delay alone is an

                               5
insufficient basis on which to remand for benefits;"
discussing Kelly v. Railroad Ret. Bd., 625 F.2d 486, 491 (3d
Cir. 1980)). Since we are unable to separate the merits of
her claim for interim benefits from her claim forfinal
disability benefits, the district court lacked jurisdiction to
hear her claim for interim benefits absent a final decision
by the Commissioner. Her motion was thus properly denied.3
Because we have determined that the federal courts lack
jurisdiction to consider Fitzgerald's interim benefits claim,
we need not decide whether such benefits are available
under the Social Security statutory regime.

The district court may well have had jurisdiction over
Fitzgerald's due process claim to the extent that she sought
some other form of relief. In her complaint, Fitzgerald
added a general request for "such other relief as the court
finds just and proper" to her demands for final and interim
benefits. We do not understand her to be asking for other
equitable remedies such as injunctive relief mandating that
the SSA promptly decide her application. No such request
appeared in either her complaint or her appellate briefs.
Counsel did indicate at argument that to the extent the
Court denied Fitzgerald the relief that she sought, she
would welcome some other form of equitable relief.
Nevertheless, even if such a claim had been properly raised
to the Court, it would be inappropriate in the present case.
Although Fitzgerald's request for review by the Appeals
Council had been pending for thirteen months at the time
she filed the instant action, the Appeals Council
subsequently ordered a remand to the ALJ. The ALJ
rendered an unfavorable decision on February 4, 1998, and
Fitzgerald's request for review is currently before the
_________________________________________________________________

3. We note that in those cases where the court discussed the availability
and appropriateness of interim benefits in initial determination cases,
the court had jurisdiction under S 405(g) because, unlike the instant
appeal, the Commissioner had rendered a final decision. See, e.g.
Doughty v. Bowen, 839 F.2d 644 (10th Cir. 1988); Taylor v. Heckler, 769
F.2d 201 (4th Cir. 1985); Saltares v. Bowen, 711 F. Supp. 162 (S.D.N.Y.
1989); Davenport v. Bowen, 709 F. Supp. 634 (E.D. Pa. 1989); Mason-
Page v. Bowen, 655 F. Supp. 255 (D.N.J. 1987); Weiser v. Secretary,
HHS, 645 F. Supp. 602 (S.D.N.Y. 1986); Dandeneau v. Heckler, 607 F.
Supp. 583 (D. Me. 1985).

                               6
Appeals Council. Under this factual scenario, individualized
injunctive relief is unwarranted.

III.

We have considered Fitzgerald's arguments and we
conclude that the district court lacked jurisdiction to
consider her request for interim benefits. Because
Fitzgerald's application is currently proceeding in a
relatively timely manner before the Social Security
Administration, other forms of injunctive relief are
inappropriate. The judgment of the district court is
therefore affirmed.4

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

4. Because we have limited our discussion to the jurisdictional aspects
of this action, nothing in this opinion should be construed as expressing
a view as to the merits of Fitzgerald's disability claim, or as to the
availability of interim benefits in an appropriate case when the district
court properly has jurisdiction.
                                7
