No. 96-7411 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 KIM SMITH, PETITIONER v. SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General ANTHONY J. STEINMEYER Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ARTHUR J. FRIED General Counsel M. ASHLEY HARDER Attorney Social Security Administration Altmeyer Building. 6401 Security Boulevard Woodlawn, Maryland 21235 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner's suit to review the administrative decision denying his claim for Supplemental Security Income -. benefits was properly dismissed because petitioner failed to file a timely administrative appeal and thus did not exhaust his administrative remedies. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7411 KIM SMITH, PETITIONER v. SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The decision of the court of appeals (Pet. App. B) is unpublished, but noted at 100 F.3d 948 (Table). The decision of the district court (Pet. App. A) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 24, 1996. A petition for rehearing was denied on November 15, 1996. The petition for a writ of certiorari was filed on January 5, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT On September 27, 1988, petitioner filed an application for supplemental security income (SSI) benefits under title XVI of the ---------------------------------------- Page Break ---------------------------------------- 2 Social Security Act, 42 U.S.C. 1381a et seq. Pet. App. C. Petitioner was incarcerated in November 1988. Following an administrative hearing at the correctional institution, the administrative law judge (ALJ) on March 29, 1990, found that petitioner was disabled and eligible for SSI benefits as of the date of his application, subject to reductions based on income and resources. Pet. App. C. Petitioner was released from prison in August 1990. On September 10, 1990, petitioner filed a request to the Appeals Council for review of the March 29, 1990 decision, arguing that the ALJ erred in not setting the onset date as the date of his earlier, previously-rejected applications. The Appeals Council dismissed his request as untimely under 20 C.F.R. 416.1468(a). Pet. App. B. Petitioner then filed this action in the United States District Court for the Western District of Pennsylvania, alleging that he was entitled to an earlier onset date 1. A United States magistrate recommended that petitioner's action be dismissed for failure to exhaust administrative remedies. The district court adopted that recommendation. Petitioner appealed to the United States Court of Appeals for the Third Circuit. In his brief to the Third Circuit, petitioner alleged, inter alia, that prior to September 1990, he tried to appeal the ALJ decision by telephoning the Altoona Social Security Office; he maintained that the Altoona office neither processed his ___________________(footnotes) 1 Petitioner also requested review of an 1994 overpayment claim. That issue is not raised in the certiorari petition. ---------------------------------------- Page Break ---------------------------------------- 3 oral request nor sent him any papers to fill out and submit. He did not allege in his brief to the Third Circuit that an SSA representative in the Altoona Office told him that he had to wait until his release from prison to appeal. The court of appeals affirmed without opinion. ARGUMENT The unpublished order below, which affirms the dismissal of petitioner's action for failure to exhaust his administrative remedies, is correct and consistent with the decisions of this Court. Further review is not warranted. 1. The ALJ's decision was issued on March 29, 1990, but petitioner did not file a request for review of that decision until September 10, 1990, well after the expiration of the 60-day period allowed. 20 C.F.R. 416.1468. Because petitioner did not file a timely request for review with the Appeals Council, he did not obtain a "final decision" of the Commissioner that would vest a court with subject matter jurisdiction. 42 U.S.C. 405(g) ; 20 C.F.R. 416.1481; see also Califano v. Saunders, 430 U.S. 99 (1977) 2. Moreover, petitioner's challenge to the. ALJ's determination regarding the correct onset date of his disability not only is procedurally barred, but also is without merit. "Payment of SSI ___________________(footnotes) 2 A request for Appeals Council review must be in writing. 20 C.F.R. 416.1468(a) & (b). That requirement is also set forth in the notice of the ALJ's decision that petitioner received. If a claimant does not complete the entire administrative process as set out in the regulations, he has not exhausted his administrative remedies and has not obtained the statutorily specified "final decision" of the Commissioner, which is a prerequisite for judicial review. Califano v. Sanders, 430 U.S. 99, 108 (1977) . ---------------------------------------- Page Break ---------------------------------------- 4 benefits may not be made for any period that precedes the date on which an application is filed or, if later, the date all conditions for eligibility and payment are met." 20 C.F.R. 416.501. 2. Petitioner maintains that because he was incarcerated until August 1990, he was denied the opportunity to file a timely appeal from the ALJ's decision. That contention, too, is without merit. Although social security regulations prohibit the payment of benefits for "any month any part of which [an] individual is [incarcerated] ," they "do not prohibit an individual from prosecuting a claim for benefits covering a period during which he was not incarcerated, see 20 C.F.R. 404.468; indeed, petitioners September 1988 application for benefits, on which he partially prevailed, was adjudicated while he was in prison. Further, petitioner alleges that he attempted to appeal the ALJ's decision by telephoning the Social Security Office in Altoona. Petitioner maintains for the first time in his petition for certiorari that an SSA employee in the Altoona Social Security Office told him that he could not appeal until he was released from prison. Since that fact-bound assertion was not raised by petitioner at either the district court or the court of appeals, level , it should not be considered by this Court. Singleton v. Wulff, 428 U.S. 106, 120 (1976). ---------------------------------------- Page Break ---------------------------------------- 5 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. ARTHUR J. FRIED General Counsel M. ASHLEY HARDER Attorney WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General ANTHONY J. STEINMEYER Attorney MARCH 1997