40 L. Ed. 2d 496, 94 S. Ct. 2038 (1974). Both of these conditions, even if present, do not persuade this court to waive the exhaustion requirement in the case sub judice.
For the court to circumvent the exhaustion requirement and review plaintiffs' individual claims would impose an impossible burden of proof upon the Secretary. To disprove such a claim, the Secretary would be required to prove that the evaluative procedures were followed in each individual case without the benefit of a full administrative record and background on claimants typically developed when the administrative process runs its full course. For the court to circumvent the process and review en masse plaintiffs' claims without regard to the specific facts of each individual's case, contradicts the statute's demand that "disability claims be evaluated on a case-by-case method, taking into account each applicant's peculiar characteristics." Santise v. Schweiker, 676 F.2d 925, 930 (3d Cir. 1982).
Such dangerous and unwarranted results further support the requirements of 405(g) and the proposition that a judicial review of the Secretary's actions is exclusive and cannot be circumvented by resort to the general jurisdiction of the district courts. Surely, the language of 405(g) does not suggest that Congress in 1939 thought it was establishing procedures to be used in class actions challenging the constitutionality of the provisions of the Act or of procedures adopted by the Secretary, and seeking broad injunctive and declaratory relief. Ellis v. Blum, 643 F.2d 68, 74 (2d Cir. 1981).
Alternatively, plaintiffs assert that this court has a jurisdictional basis under the mandamus statute, 28 U.S.C. § 1361. However, this section provides mandamus jurisdiction only where there are "extraordinary circumstances." Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976); State Board of Education v. Fox, 620 F.2d 578, 579 (6th Cir. 1980). The party seeking such jurisdiction must have "no other adequate means to attain the relief he desires." Kerr v. United States District Court, supra at 403. See also, Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); Haneke v. Secretary of HEW, 175 U.S. App. D.C. 329, 535 F.2d 1291, 1296 n. 15 (D.C. Cir. 1976); 1 Moore's Federal Practice, P 0.62 , at 700.51. In the case sub judice, plaintiffs have not satisfied the criteria for the extraordinary remedy of mandamus. The plaintiffs have other ample and available means by which to have their claims reviewed, such as the administrative procedures of an Administrative Law Judge hearing and an Appeals Council review, and such as judicial review pursuant to 405(g) with the benefit of an administrative record.
The plaintiffs' assertion of jurisdiction under 28 U.S.C. § 1343 over State defendants must also fail. Section 1343 requires that persons have acted "under color of any state law, statute, ordinance, regulation, custom or usage," for jurisdiction to be established. The State defendants administering the disability benefits program have acted under color of federal law as mere agents of the Secretary and have not acted under color of any State law or statute in the case sub judice. Ellis v. Blum, supra at 74.
Lastly, the assertion of pendant jurisdiction must fail. The doctrine of pendant jurisdiction is applicable only where there is a federal claim and a state claim. United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). As previously stated, there is neither a federal nor state claim in the case sub judice at this time.
The motion of the defendants to dismiss is GRANTED.
This action is DISMISSED.
IT IS SO ORDERED.
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