The opinion of the court was delivered by: COHILL, JR.
MAURICE B. COHILL, JR., CHIEF UNITED STATES DISTRICT JUDGE
This case is presently before us on cross-motions for summary judgment. The plaintiff Henry A. Hatfield filed a Complaint seeking a writ of mandamus to enjoin the defendant Secretary of Health and Human Services from continuing to recover an alleged disability benefits overpayment from the plaintiff and to compel the Secretary to make proper disability benefit payments. For the reasons set forth below, we will grant the plaintiff's motion for summary judgment and deny the defendant's motion for summary judgment.
On April 24, 1980, the plaintiff applied for disability benefits alleging disability since October 23, 1979. On October 31, 1980, an Administrative Law Judge (ALJ) determined that plaintiff was not disabled. T.62-67. The plaintiff requested a review of this determination on November 5, 1980. T.61. On January 5, 1981, the Appeals Council denied his request for review. T.60.
On February 22, 1982, the plaintiff reapplied for disability insurance benefits. T. 193-196. On August 31, 1983, an ALJ concluded that plaintiff was disabled as of October 23, 1979. T.41-45.
On August 2, 1984, the Appeals Council reopened the ALJ's August 31, 1983, determination and found that it was not based on substantial evidence. T.37-40. The Appeals Council vacated the decision and remanded it to the ALJ. On December 26, 1984, the ALJ determined that plaintiff was disabled but found that he was only entitled to disability benefits commencing June 6, 1983. T.24-31.
On April 18, 1985, the Secretary sent the plaintiff a letter explaining that due to the incorrect onset date determination made by the ALJ on August 31, 1983, the plaintiff had been overpaid $ 27,143.40, and therefore his future monthly disability payments would be decreased by $ 55.50 so that the Secretary could recover the overpayment. T.5-9. On July 24, 1985, the Secretary's decision became final when the Appeals Council denied the plaintiff's request for a review of the ALJ's December 26, 1984, decision. T.3-4.
Initially, we note that we have subject matter jurisdiction over this mandamus action. Federal district courts have original jurisdiction over mandamus actions to compel an officer or employee of the United States or any of its agencies to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. Section 1361 jurisdiction is available in social security cases where the dispute involved is purely procedural and is not related to the merits of the plaintiff's claim for benefits. Belles v. Schweiker, 720 F.2d 509, 511-512 (8th Cir. 1983); Dietsch v. Schweiker, 700 F.2d 865, 868 (2nd Cir. 1983). The issue involved here is procedural and is therefore properly before this Court.
20 C.F.R. § 404.969 - Appeals Council initiates review
Anytime within 60 days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken. If the Appeals Council does review the hearing decision or dismissal, notice of the action will be mailed to all parties at their last known address.
20 C.F.R. § 404.970 - Cases the Appeals ...