Dianne Weeks v. Nancy Berryhill, Acting Cmsnr ( 2017 )


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  •      Case: 16-31092      Document: 00514104990         Page: 1    Date Filed: 08/07/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-31092                                  FILED
    Summary Calendar                           August 7, 2017
    Lyle W. Cayce
    Clerk
    DIANNE WEEKS,
    Plaintiff - Appellant
    v.
    NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
    SECURITY,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 6:15-CV-2653
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant Dianne Weeks (“Weeks”) appeals the district court’s
    dismissal of her action for lack of jurisdiction. For the reasons below, we
    AFFIRM.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-31092    Document: 00514104990    Page: 2   Date Filed: 08/07/2017
    No. 16-31092
    I.
    Weeks applied for disability insurance benefits in November 2009. The
    claim was initially denied on April 20, 2010, and Weeks requested a hearing,
    after which an Administrative Law Judge (“ALJ”) issued an unfavorable
    decision on January 21, 2011. The Appeals Council (“Appeals Council”) of the
    Social Security Administration (“SSA”) denied Weeks’s request for review in
    April 2012, and Weeks did not request judicial review from the district court.
    Then, on July 1, 2013, after retaining counsel, Weeks submitted a second
    application for benefits with a statement from her doctor that related back to
    the earlier time period. On July 22, 2013, the SSA denied Weeks’s second
    application on the basis that it involved the same issues as the January 2011
    decision. Weeks did not pursue her administrative appeals process regarding
    this denial.
    Starting in July 2013, Weeks also began the process for reopening the
    November 2009 application. She details communications with various SSA
    offices that occurred between July 2013 and September 2015, at which point
    the Appeals Council found no reason to reopen the April 2012 decision.
    Weeks then filed a complaint in the district court on November 6, 2015.
    Defendant-Appellee     Acting   Commissioner     of   Social   Security    (the
    “Commissioner”) filed a motion to dismiss under Federal Rule of Civil
    Procedure 12(b)(1), or in the alternative, for summary judgment.           The
    magistrate judge concluded that the court lacked subject matter jurisdiction to
    consider the Commissioner’s decision not to reopen the April 2012 decision
    absent a colorable constitutional claim, which Weeks had not sufficiently
    raised.   Weeks filed objections to the report and recommendation of the
    magistrate judge, and the district court adopted the recommendation of the
    magistrate judge and dismissed the case in its entirety. Weeks now appeals.
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    No. 16-31092
    II.
    This court reviews de novo a district court’s decision to dismiss based on
    lack of subject matter jurisdiction and applies the same standard as the district
    court. See Ramming v. United States, 
    281 F.3d 158
    , 161 (5th Cir. 2001)).
    III.
    Before a federal court may exercise jurisdiction over an action pursuant
    to 
    42 U.S.C. § 405
    (g), the claimant must have exhausted his administrative
    remedies. See Matthews v. Eldridge, 
    424 U.S. 319
    , 327–28 (1976); Harper v.
    Bowen, 
    813 F.2d 737
    , 739 (5th Cir. 1987). Jurisdiction is clearly limited to
    actions that amount to a “final decision” and “made after a hearing.”
    Weinberger v. Salfi, 
    422 U.S. 749
    , 764 (1975); Harper, 
    813 F.2d at 739
    . The
    term “final decision” is undefined in the Act, and the meaning of that term was
    left to the Social Security regulations. Brandyburg v. Sullivan, 
    959 F.2d 555
    ,
    559 (5th Cir. 1992). In this regard, we have explained the administrative steps
    leading up to a final decision as follows: (1) an individual files a claim with the
    SSA for initial determination; (2) a dissatisfied claimant must file a request for
    and receive reconsideration; (3) after obtaining the initial and reconsidered
    determinations, a dissatisfied claimant may file for an evidentiary hearing
    before an ALJ; (4) a dissatisfied claimant may request that the Appeals Council
    review the ALJ’s decision. Harper, 
    813 F.2d at 739
    .
    The finality requirement of section 405(g), however, does not preclude
    judicial review if a claimant asserts a colorable constitutional challenge. See
    Califano v. Sanders, 
    430 U.S. 99
    , 107–09 (1977); Robertson v. Bowen, 
    803 F.2d 808
    , 810 (5th Cir. 1986). “Merely alleging a constitutional violation or making
    a conclusory allegation is not enough; the claimant must have a colorable
    constitutional claim.” Kinash v. Callahan, 
    129 F.3d 736
    , 738 (5th Cir. 1997).
    We agree with the district court that jurisdiction is lacking over Weeks’s
    claims relating to the refusal to reopen the April 2012 decision. A refusal to
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    No. 16-31092
    reopen is not subject to judicial review. 
    20 C.F.R. § 404.903
    (l). Accordingly,
    federal courts lack jurisdiction to review a decision not to reopen a claim for
    benefits. See Califano, 
    430 U.S. at
    107–08; Thibodeaux v. Bowen, 
    819 F.2d 76
    ,
    79–80 (5th Cir. 1987). Thus, there was no jurisdiction over Weeks’s claims
    relating to the refusal to reopen absent a colorable constitutional claim.
    We further agree with the district court that Weeks did not present a
    colorable constitutional claim in her complaint because Weeks was not entitled
    to a hearing on her request to reopen.          See Califano, 
    430 U.S. at 108
    ;
    Brandyburg, 
    959 F.2d at 560
    .         Accordingly, the district court correctly
    determined that the refusal to reopen was not subject to judicial review and
    that Weeks did not allege a colorable constitutional claim.
    With respect to Weeks’s complaint related to the denial of her 2013
    application as a new claim, she did not meet her burden to establish that she
    exhausted her administrative remedies as to that claim such that jurisdiction
    would be proper. See Paterson v. Weinberger, 
    644 F.2d 521
    , 523 (5th Cir. 1981)
    (“If a defendant makes a ‘factual attack’ upon the court’s subject matter
    jurisdiction over the lawsuit, . . . a plaintiff is also required to submit facts
    through some evidentiary method and has the burden of proving by a
    preponderance of the evidence that the trial court does have subject matter
    jurisdiction.”).   The only potential argument for a colorable constitutional
    violation related to that claim is that the prototype process applied. Not only
    was that argument never made before the district court, but also it is
    inadequately briefed on appeal. It is therefore abandoned, Young v. Repine (In
    re Repine), 
    536 F.3d 512
    , 518 n.5 (5th Cir. 2008); FED. R. APP. P. 28(a)(8), and
    we do not address it.
    AFFIRMED.
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