Apfel

Robert Burdett Butler challenges the constitutionality of 42 U.S.C. § 402 (x) which mandates the suspension of his social security benefits because he is a convicted felon currently incarcerated in prison. Butler claims that § 402(x) violates the due process and equal protection clauses of the Fifth Amendment and acts as an invalid ex post facto law and bill of attainder in violation of Article 9, Section 1. The district court dismissed Butler’s complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We find that the district court had subject matter jurisdiction over Butler’s claim. We affirm the district court based only on Butler’s failure to state a claim upon which relief can be granted.

BACKGROUND

Butler is a seventy-seven year old inmate currently housed at the Southern Nevada Correction Center in Jean, Nevada. Butler applied for and was granted social security retirement benefits in 1983. Subsequently, Butler was incarcerated to serve numerous life sentences in the Nevada prison system. In February 1993, the Social Security Administration determined that…