December 8, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1484
YURI M. ROTHMAN,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Cyr, Boudin and Stahl, Circuit Judges.
Yuri M. Rothman on brief pro se.
Donald K. Stern, United States Attorney, Charlene A. Stawicki,
Special Assistant United States Attorney, Donna McCarthy, Assistant
Regional Counsel, United States Department of Health and Human
Services, Randolph W. Gaines, Acting Chief Counsel for Social
Security, John M. Sacchetti, Chief, Retirement Survivors and
Supplemental Assistance Litigation Branch, and Mark S. Ledford,
Attorney, United States Department of Health and Human Services, on
brief for appellee.
Per Curiam. Claimant Yuri Rothman seeks to challenge
various administrative determinations regarding his
entitlement to Social Security disability benefits. Given
the cryptic nature of his submissions, both below and on
appeal, the precise issues being raised are not readily
decipherable. To the extent claimant is challenging the
finding, reached by the Administrative Law Judge (ALJ) in a
1990 decision, that he was not disabled between 1979 and
1984, this claim was properly dismissed for lack of
jurisdiction. The Appeals Council rejected his untimely
request for review of the ALJ's decision after finding that
he had failed to establish the requisite good cause. As has
been widely held, such a dismissal is not a "final decision"
for the purposes of 42 U.S.C. 405(g) and thus is not
reviewable in federal court. See, e.g., Bacon v. Sullivan,
969 F.2d 1517, 1519-21 (3d Cir. 1992) (citing cases).
To the extent claimant is challenging the ALJ's finding
that he was ineligible for disability benefits after
September 1984 due to the earlier expiration of his insured
status, his claim was subject to dismissal on the same
ground. The district court, in dismissing this claim for
lack of jurisdiction, did so without prejudice--apparently in
the belief that it was the subject of pending administrative
action. The record reveals, however, that the ALJ addressed
this matter in his 1990 decision. Since the government has
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not expressed any concern on the point, we leave the judgment
as it stands and mention the matter only for purposes of
clarity.
Finally, claimant challenges the determination that he
received, and was obligated to repay, some $24,000 in
benefits that were "overpaid." To the extent he is disputing
the existence and amount of such overpayment, this claim
arguably was subject to dismissal with prejudice as well; the
record reveals that the ALJ addressed these matters in an
intervening 1993 decision from which claimant filed no appeal
(a decision which neither party apparently brought to the
attention of the district court). In any event, given the
Secretary's recent decision to waive repayment of such
benefits, this matter is now moot.
The judgment is affirmed. The motion to supplement
record is allowed.
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