Titus v. Sullivan

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LOKEN, Circuit Judge,

concurring:

To justify waiver of administrative exhaustion under Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), “claimants [must] show (1) their claims are collateral to their claim of benefits; (2) that irreparable injury will follow; and (3) that exhaustion would otherwise be futile.” Schoolcraft v. Sullivan, 971 F.2d 81, 85 (8th Cir.1992). Although I doubt whether plaintiffs can meet this burden with respect to their claims that have survived Rule 12(b)(6) dismissal, that question should be decided in the first instance by the district court. Because it is unclear to me whether the district court’s exhaustion ruling was based entirely upon the secret policy issue that we subsequently decided the other way *596in Schoolcraft, I conclude that the Rule 12(b)(1) portion of the court’s dismissal order must be remanded for further consideration in light of Schoolcraft. I believe that is what the court has done in the Subject Matter Jurisdiction portion of its opinion. Therefore, I concur.