United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-2725
                                      ___________

Billy Grisso,                           *
                                        *
             Appellant,                 *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
Kenneth S. Apfel, Commissioner of       * Eastern District of Missouri
Social Security, Robert E. Rubin,       *
Secretary of the U.S. Treasury; Janet   * [TO BE PUBLISHED]
Reno, Attorney General of the           *
United States,                          *
                                        *
             Appellee.                  *
                                   ___________

                            Submitted: July 12, 2000

                                 Filed: July 25, 2000
                                     ___________

Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                         ___________

PER CURIAM.

       Billy Grisso appeals from a final judgment entered in the District Court for the
Eastern District of Missouri, dismissing his mandamus action for lack of subject matter
jurisdiction. For reversal, Grisso argues that the district court had jurisdiction to decide
his constitutional claim and to rule on his mandamus petition. Four Missouri prisoners
have moved for leave to file a Fed. R. App. P. 28(j) letter as intervenors; we deny their
motion. For the following reasons, we affirm in part, reverse in part, and remand.

       From 1983 to 1994, while Grisso was an Arkansas and Missouri prisoner, his
disability insurance benefits were suspended. During that time, federal law provided
that an individual confined in jail for a felony was not entitled to monthly benefits
unless “actively and satisfactorily participating in a rehabilitation program which has
been specifically approved for such individual by a court of law and, as determined by
the [Social Security Commissioner], is expected to result in such individual being able
to engage in substantial gainful activity upon release and within a reasonable time.” 42
U.S.C. § 402(x)(1) (1993) (amended 1994). In September 1997, Grisso filed the
instant petition for a writ of mandamus against the Commissioner, seeking
reimbursement of his suspended benefits and asserting that § 402(x)(1) was
unconstitutional. Also in September 1997, Grisso filed an application with the Social
Security Administration (SSA) for approval of industrial training programs as
rehabilitation programs. In the application, Grisso informed the SSA that he had filed
this federal action, and the SSA later informed him that it would not comment on his
application and that the appropriate forum was the federal district court. Thus, in
November 1997, Grisso moved for the district court to compel the SSA to rule on his
application.

       The Commissioner moved to dismiss Grisso’s mandamus action, arguing his
exclusive remedy for reimbursement of benefits was under 42 U.S.C. § 405(g), and the
district court could not review the claim until he exhausted administrative remedies.
Grisso responded that he did not need to exhaust because his petition attacked the
constitutionality of § 402(x)(1), and he attested that he filed the mandamus petition to
force the Commissioner to review his September 1997 application. The district court
characterized Grisso’s petition as seeking benefits and thus as seeking judicial review
of an agency action, and concluded that it lacked jurisdiction because Grisso had failed
to exhaust. The district court further concluded that it lacked jurisdiction to order the

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Commissioner to take action on Grisso’s pending application, and that Grisso had no
standing to challenge the constitutionality of § 402(x)(1).

       We review the district court’s dismissal de novo. See Phillips v. Ford Motor
Co., 

, 239 (8th Cir. 1996). Grisso correctly argues the district court has
jurisdiction to decide constitutional issues such as that raised in his mandamus petition.
See Califano v. Sanders, 

, 108-09 (1977) (where claimant challenges
Commissioner’s denial of benefits on constitutional grounds, judicial review is
appropriate). Even if Grisso--who is no longer a prisoner having his benefits
suspended--has standing to raise his constitutional claim, it lacks merit. See Jensen v.
Heckler, 

, 385-86 (8th Cir. 1985) (per curiam) (suspension of benefits to
prisoners does not violate Due Process, Equal Protection, or Ex Post Facto Clauses).

       To the extent Grisso’s mandamus petition sought reimbursement of benefits, we
agree with the district court that it lacked jurisdiction to review such a claim absent
exhaustion of administrative remedies. See Anderson v. Sullivan, 

, 692
(8th Cir. 1992). We believe, however, that Grisso’s petition and subsequent filings
indicate he also sought an order to compel the Commissioner to review his September
1997 application for approval of rehabilitation programs. We conclude that this was
a proper request for mandamus relief, and we note that granting this aspect of the
petition would not entitle Grisso to benefits per se. See Linquist v. Bowen, 

, 887 n.12 (8th Cir. 1987) (citing cases from this circuit and others which have held
§ 405(g) does not preclude exercise of mandamus jurisdiction, and noting mandamus
is appropriate in social security case when dispute does not involve “entitlement to
benefits per se”); Peeler v. Heckler, 

, 652 (8th Cir. 1986) (sentencing
court approves rehabilitation program, while Commissioner considers whether program
could result in substantial gainful activity; if Commissioner’s decision is unfavorable,
plaintiff may seek review in federal district court).




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       Accordingly, we affirm the dismissal of Grisso’s constitutional challenge, and
we reverse and remand for the district court to exercise its mandamus jurisdiction on
Grisso’s request as to his September 1997 application. We deny the prisoners' motion
for leave to file a Rule 28(j) letter as intervenors.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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