Opinion
James R. Pate, Russellville, Ark., for plaintiff.
Gene O. Daniel, Asst. U. S. Atty., Little Rock, Ark., for defendant.
MEMORANDUM OPINION
ARNOLD, District Judge.
Pursuant to 42 U.S.C. s 405(g), plaintiff Verna L. Davidson filed suit for judicial review of the Secretary's decision dismissing her third application for disability benefits. The defendant filed a motion to dismiss the complaint on jurisdictional grounds, to wit, that the suit does not seek to review a "final decision of the Secretary made after a hearing," a prerequisite to judicial review under 42 U.S.C. s 405(g) as interpreted in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The plaintiff has not responded to the motion.
The pertinent procedural facts with regard to plaintiff's three applications for disability benefits do not appear to be in dispute. Plaintiff was last insured for the period ending March 31, 1962. On March 20, 1969, she filed her first application claiming that she became unable to work on March 11, 1961. The application was denied initially on May 1, 1969, and was not appealed. This May 1 denial then became a final decision of the Secretary. 20 C.F.R. s 404.940.
Plaintiff's second claim, filed March 19, 1973, was denied initially and on reconsideration. Plaintiff's hearing request was dismissed on Res judicata grounds on October 4, 1974, and this decision was affirmed by the Appeals Council on December 6, 1974. Plaintiff sought no judicial review of that decision.
Plaintiff's third claim, filed January 5, 1976, was denied initially and on reconsideration. Plaintiff was granted a hearing, but following the hearing the Administrative Law Judge issued a decision January 25, 1977, finding no disability. On appeal, the Appeals Council reopened the hearing decision and dismissed on Res judicata grounds. The Council reasoned that since the third application involved the same facts and issues finally decided on May 1, 1969, the Administrative Law Judge should have dismissed the hearing request under Section 404.937(a). The Council therefore dismissed under Section 404.947, which grants it the authority to reopen a decision in order to dismiss a hearing request improvidently granted by the Administrative Law Judge. This suit followed.
The February 13, 1979, decision of this Court granting the Secretary's motion to dismiss in Marchant v. Califano, 464 F.Supp. 923, is controlling. In the case at bar, the May 1, 1969, denial of plaintiff's claim became the final decision of the Secretary when it was not appealed. It is Res judicata as to subsequent applications involving the same facts and issues, and the Secretary's dismissal on that basis is not subject to judicial review. Cf. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 192, 51 L.Ed.2d 192 (1977); Janka v. Secretary of H. E. W., 589 F.2d 365 (8th Cir. 1978).
The motion to dismiss is granted, and the complaint is hereby dismissed.