Unpublished Disposition, 872 F.2d 430 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 430 (9th Cir. 1989)

Thomas E. SPYCHALA, Plaintiff-Appellant,v.SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES,*  Defendant-Appellee.

No. 87-2341.

United States Court of Appeals,Ninth Circuit.

March 14, 1989.

Before KILKENNY, WIGGINS and NOONAN, Circuit Judges.


MEMORANDUM** 

Spychala appeals pro se from the district court's dismissal of his complaint for lack of subject matter jurisdiction, based on the appellant's failure to exhaust his administrative remedies prior to seeking judicial review of the termination of his social security disability benefits. We review de novo, see Hironymous v. Bowen, 800 F.2d 888, 891 (CA9 1986), and we affirm.

As a general proposition we note that only final decisions of the Secretary can be appealed to a federal district court. 42 USC Sec. 405(g); Cassim v. Bowen, 824 F.2d 791, 794 (CA9 1987). A final decision is one in which, inter alia, a claimant has exhausted his administrative remedies. Cassim, 824 F.2d at 794. Exhaustion of administrative remedies requires de novo reconsideration of the initial disability ruling, a subsequent hearing before an administrative law judge ("ALJ"), and a review of the ALJ's decision by the Appeals Council. Bowen v. City of New York, 476 U.S. 467, 471-72 (1986).

Because Spychala made no showing of prejudice and failed to demonstrate good cause for having his hearing take place in Baltimore rather than in Sacramento, his written demand that any other hearing (i.e., the one scheduled in Sacramento) be cancelled justified the ALJ's decision to dismiss the hearing request. See 20 CFR Secs. 404.936(b)--(d); 404.957(a). Consequently, the appellant failed to exhaust his administrative remedies. See Bowen v. City of New York, 476 U.S. at 471-72 (exhaustion requires hearing before ALJ); Hironymous, 800 F.2d at 894 (ALJ's dismissal of hearing request does not waive exhaustion requirement).

This exhaustion requirement, however, can be waived, either by the Secretary or by the court. Guadamuz v. Bowen, 859 F.2d 762, 767 n. 9 (CA9 1988). The Secretary has not waived the requirement in this case, and we see nothing in this record which would incline us to exercise our discretion in favor of waiving the requirement, either.

Although the district court erred by concluding that it lacked subject matter jurisdiction over the instant action, we can affirm the decision for any reason finding support in the record, and we find nothing in the record which would indicate that the district court committed reversible error by declining to review the action. In the absence of a showing that Spychala would suffer irreparable harm that could not be addressed in a post-deprivation hearing, see Heckler v. Ringer, 466 U.S. 602, 618 (1984), we decline to discuss the remaining issues presented by the appellant, as they should more appropriately be decided in the first instance by the Secretary.

Accordingly, the judgment of dismissal is AFFIRMED. To the extent that the appellant's emergency motion to stay his transfer to CTF Soledad is still before us, it is DENIED as irrelevant to this appeal.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3

 *

Pursuant to FRAP 43(c) (1) & (2), the appellee's title has been substituted for the former appellee, Otis Bowen, M.D

+ The panel unanimously finds this case suitable for decision without oral argument. Fed R.App.P. 34(a); 9th Cir.R. 34-4.