Ronald Welch v. Carolyn W. Colvin , 542 F. App'x 609 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD WELCH, No. 12-56850
Plaintiff - Appellant, D.C. No. 5:11-cv-00740-MLG
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Marc L. Goldman, Magistrate Judge, Presiding
Submitted October 8, 2013**
Pasadena, California
Before: FERNANDEZ, PAEZ, and HURWITZ, Circuit Judges.
Ronald Welch appeals the district court’s judgment dismissing his complaint
against the Commissioner of Social Security for lack of subject matter jurisdiction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s judgment.
We vacate and remand.
The Social Security Appeals Council dismissed as untimely Welch’s request
for review of a decision by an administrative law judge denying his application for
disability benefits. Welch’s attorney claims that he timely filed the request for review
by facsimile, as permitted by agency rules. To prove that he did so, Welch’s attorney
provided the Council with, among other documents, a transmission log with the
Council’s fax number.
Although the Council’s dismissal order is not a final decision, the district court
nonetheless had jurisdiction to review it under 42 U.S.C § 405(g) because Welch
asserted a colorable constitutional claim. Califano v. Sanders, 430 U.S. 99, 109
(1977); Matlock v. Sullivan, 908 F.2d 492, 493–94 (9th Cir. 1990). We recently held
that due process requires the Commissioner to give “some explanation” when
dismissing an apparently valid request for a hearing. Dexter v. Colvin, No. 12-35074,
2013 WL 5434699, at *3 (9th Cir. Sept. 30, 2013). Because Welch provided the
Council with evidence that, if credited, would establish that he timely filed the request
for review, due process requires the Council to provide some explanation why it
concluded to the contrary.
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We vacate the judgment of the district court and remand to the district court to
remand to the Commissioner to consider the evidence that Welch timely filed his
request for review and either to explain her decision dismissing the request or to treat
it as timely.
VACATED and REMANDED.
3