Carol L. DIETZLER, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee, 124 F. App'x 463

Order When Carol Dietzler sought leave to pursue this suit in forma pauperis under 28 U.S.C. § 1915, the district judge concluded that it failed to state a claim on which relief may be granted and dismissed it outright. The judge thought that Dietzler was trying to obtain disability benefits on behalf of her ex-husband (who, the complaint alleged, would “never cooperate or follow through” with an application) and dismissed the complaint because she could not make a claim on someone else’s behalf. On appeal Dietzler has clarified her position.

She seeks benefits on behalf of her son, and the basis of these benefits would be her ex-husband’s disability (brain damage manifested in, among other things, inability to apply himself). See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350-368. The clarification does not, however, affect Dietzler’s fundamental obstacle: no one has applied for federal benefits. Not her ex-husband, not her ex-husband’s guardian, not her son (now an adult), and not Dietzler herself. An application is essential. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v.

Salfi, 422 U.S. 749, 763-64, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). If the agency tarries unduly in making a decision, it might be possible to use the Administrative Procedures Act to seek a resolution of the administrative claim. See 5 U.S.C. § 706(1). But Dietzler, who has not filed an application, lacks either a final decision or a claim of unwarranted delay. What she contends is that preparing an application would be too cumbersome and difficult, but no rule of federal law entitles a person to cut the agency out of the process and head straight to court.

Until the agency has acted (or had a full opportunity to do so), there is no legal wrong to redress. Affirmed