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BANKS v. CHATER

September 9, 1996

ULYSSES BANKS, Plaintiff,
v.
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 This is an action brought by plaintiff for judicial review of the denial by the Appeals Council of the Social Security Administration ("SSA") to review a decision by an Administrative Law Judge ("ALJ") which found no "good cause" for plaintiff's untimely filing of appeal and thus dismissed plaintiff's request for a hearing. Defendant argues that this Court does not have jurisdiction because the denial by the Appeals Council does not constitute a "final decision" of the Commissioner. Because we agree that there has been no "final decision" for jurisdictional purposes and do not believe that claimant presents a colorable constitutional claim on which jurisdiction might rest, we will dismiss for lack of jurisdiction.

 I. BACKGROUND

 The SSA mailed a reconsideration denial notice to Banks on October 16, 1992. Banks does not dispute that he and his lawyer received the notice shortly thereafter. From the date of receipt, Banks had 60 days in which to file for a hearing before an ALJ. The SSA received nothing from plaintiff within that time frame.

 In December 1994 and early 1995, the SSA received two letters from plaintiff's lawyer dated, respectively, December 8, 1994, and January 9, 1995. In these letters, plaintiff's attorney asserted that the request for a hearing had been filed on time. As proof, he attached two letters which he averred had previously been sent to the SSA on or near their indicated dates. One of them was dated December 9, 1993; it inquired about the hearing and referred to an even earlier letter. That earlier letter, which was dated October 22, 1992, forms the basis of plaintiff's claim that his notice was timely filed within 60 days of the denial of reconsideration.

 Plaintiff appealed. In the letter of appeal, plaintiff's lawyer again stated that the notice of appeal had been timely filed by letter dated October 22, 1992, and suggested that his delay in following up was a product of his familiarity with the "significant backlog in the processing of requests for hearing." On April 18, 1995, the Appeals Council found no compelling basis to vacate, and declined to reverse the Administrative Law Judge's dismissal. The Appeals Council made reference to plaintiff's lawyer's assertions, but concluded that "the Administrative Law Judge, however, declined to accept your attorney's account of the facts in your case. Your attorney has not submitted additional evidence showing either that he mailed a letter requesting a hearing in October 1992, or that he mailed a letter requesting status in December 1993. Neither the documents in your file nor your attorney's assertions provide a compelling basis for vacating the Administrative Law Judge's order of dismissal."

 Plaintiff seeks two alternative forms of relief in his complaint. First, he asks that the determination of the Commissioner be reversed and he be awarded SSI benefits. Alternatively, plaintiff asks that the case be remanded to the Commission for a hearing on the merits of his claim.

 Plaintiff's brief in opposition to the government's motion to dismiss, however, presents somewhat different arguments from those of his complaint. In his brief, plaintiff argues that, prior to a dismissal for lateness, plaintiff should have been given notice and provided with an opportunity to present evidence in a special hearing on the issue of the timeliness of his filing. Along with his brief, plaintiff has provided an affidavit dated May 14, 1996, and signed by a paralegal employed by plaintiff's lawyer, which states that notice was timely filed. *fn1"

 II. ANALYSIS

 Title II of the Social Security Act limits judicial review to a "final decision of the Secretary made after a hearing." 42 U.S.C. ยง 405(g). The decision by the SSA not to consider an untimely request for review is not a "final decision" subject to judicial review. Bacon v. Sullivan, 969 F.2d 1517 (3d Cir. 1992) *fn2" We therefore do not have jurisdiction to review the merits of the claim or even to review the SSA's determination of the timeliness of filing. Id. at 1519.

 Our lack of jurisdiction is subject to an exception where a plaintiff asserts a "colorable constitutional claim." Id. at 1521; Penner v. Schweiker, 701 F.2d 256 (3d Cir. 1983). Plaintiff asserts that the failure of the ALJ to notify him that timeliness was at issue and to hold a hearing prior to the "good cause" determination violated his due process rights under the Fifth and Fourteenth Amendments.

 A constitutional claim is not "colorable" if it "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial or frivolous." Boettcher v. Secretary of HHS, 759 F.2d 719, 722 (9th Cir. 1985). The mere allegation of a due process violation is not sufficient to raise a "colorable" constitutional claim to provide subject matter jurisdiction. "If the mere allegation of a denial of due process can suffice to establish subject-matter jurisdiction, then every decision of the Secretary would be [judicially] reviewable by the inclusion of the [magic] words" "arbitrary" or "capricious." Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir. 1986). "Every disappointed claimant could raise such a due process claim, thereby undermining a statutory scheme designed to limit judicial review." Holloway v. Schweiker, 724 F.2d 1102, 1105 (4th Cir. 1984). See U.S. v. Neville, 985 F.2d 992 (9th Cir. 1993) (holding ...


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