Opinion
Case No. A1-03-102
September 9, 2003
ORDER DENYING MOTION FOR RECONSIDERATION
The Plaintiff, Rick Gorley, acting pro se, filed the above-entitled action against the Social Security Administration on August 29, 2003,. The Court denied the Plaintiff's request and stated that the Plaintiff had failed to exhaust his administrative remedies. On September 4, 2003, the Plaintiff filed a Motion for Reconsideration. Attached to the motion were documents dated September 3, 2003, indicating that the Plaintiff was seeking an Appeals Council Review. The basis for the Plaintiff's motion is that he is in dire financial straits and cannot wait for the appeals process to play itself out.
A district court generally lacks jurisdiction to issue a temporary restraining order before a plaintiff has exhausted his or her administrative remedies. See Rodabaugh v. Sullivan, 943 F.2d 855, 857 (8th Cir. 1991). "Judicial review of the Secretary's decision is available only after a "final decision" by the Secretary, that is, after an administrative hearing and appeal are complete." Id. The United States Supreme Court has explained the reasoning for this requirement:
Exhaustion is generally required as a matter of preventing 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, to afford the parties and the courts the benefits of its experience and expertise, and to compile a record which is adequate for judicial review.
Weinberger v. Salfi, 422 U.S. 749, 765 (8th Cir. 1975). However, the Supreme Court has determined that the exhaustion requirement may be waived if a petitioner establishes (1) a colorable constitutional claim collateral to the substantive claim; (2) irreparable injury by enforcement of the exhaustion requirement; and (3) that the purpose of exhaustion would not be served by requiring further administrative procedures. Id.
In this case, the Plaintiff has not alleged a colorable constitutional claim collateral to his substantive claim, i.e., the allegedly wrongful suspension of his disability benefits. See Otis v. Apfel, 202 F.3d 1050, 1052 (8th Cir. 2000). In addition, the Plaintiff has not satisfied the criteria for waiver of the exhaustion requirement. The Court sympathizes with the Plaintiff, but it can find no legal basis for abandoning its previous order without defying the law as pronounced by the Eighth Circuit Court of Appeals and the United States Supreme Court. This situation appears to cry out for some relief. The Court believes that the Social Security Administration has the power to continue benefits to the Plaintiff pending a final determination of the issues. The Court would urge the Social Security Administration to carefully review this case and consider the possibility of continuing benefits as permitted under the applicable laws and regulations subject to repayment if the Plaintiff is unsuccessful on appeal. In addition, the Plaintiff should seek legal counsel through Legal Assistance of North Dakota. Accordingly, the Court DENIES the Plaintiff's Motion for Reconsideration.
IT IS SO ORDERED.