Pettigrew v. Barnhart

1 Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 24, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41511
Summary Calendar
LELIA C. PETTIGREW,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, Commissioner of Social Security; ET AL.,
Defendants,
VERNON ARRELL, Commissioner of Rehabilitation Commission
of Texas, sued in his official capacity under contract with SSA,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-266
--------------------
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Leila C. Pettigrew appeals the district court’s dismissal of
his claims against Vernon Arrell, the Commissioner of the Texas
Rehabilitation Commission (TRC). Pettigrew argues that the
district court had jurisdiction over his claims against Arrell
pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1383(c)(3).

-- 1 of 2 --

2
In the district court, Pettigrew explicitly abandoned his
claim that the district court had jurisdiction over his claims
against Arrell pursuant to the Social Security Act as provided for
in 42 U.S.C. § 1383(c)(3). Moreover, the district court’s grant of
Arrell’s second motion to dismiss was based not on lack of subject
matter jurisdiction under 28 U.S.C. § 1331 but on the magistrate
judge’s determination that Pettigrew failed to argue in his brief
to the district court that Arrell unconstitutionally used the
framework analysis. Pettigrew does not argue on appeal that the
district court erred when it dismissed his 28 U.S.C.
§ 1331-based claims against Arrell based on Pettigrew’s abandoning
them by failing to brief them in the district court. He has
therefore waived this issue on appeal. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Pettigrew’s argument that he should not be required to exhaust
administrative remedies on remand lacks merit inasmuch as he has
already exhausted his administrative remedies. see Harper v.
Bowen, 813 F.2d 737, 739 (5th Cir. 1987).
AFFIRMED.

-- 2 of 2 --