Matos-Cruz v. Commissioner

USCA1 Opinion [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1123 MATILDE MATOS-CRUZ, Plaintiff, Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge] Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge. Juan A. Hernandez Rivera and Raymond Rivera Esteves on brief for appellant. Guillermo Gill, United States Attorney, Lilliam Mendoza Toro, Assistant U.S. Attorney, Arthur J. Fried, General Counsel, Charlotte J. Hardnett, Principal Deputy General Counsel, John M. Sacchetti, Associate General Counsel, Litigation Division, and Eileen A. Farmer, Attorney, Office of the General Counsel, Social Security Administration, on brief for appellee. OCTOBER 7, 1998 Per Curiam. In this Social Security appeal, claimant Matilde Matos-Cruz seeks to challenge an agency decision refusing to reinstate her request for an administrative hearing. We agree with the district court that subject-matter jurisdiction is lacking to review such a ruling. We therefore affirm the judgment of dismissal. In 1994, at age 36, claimant filed a claim for child's insurance benefits as the adult child of a deceased wage earner, alleging that she had been disabled since birth. Following a preliminary denial of her claim, claimant requested a hearing before an Administrative Law Judge ("ALJ"). Such a hearing commenced as scheduled on December 6, 1995. Yet during the course thereof, with the advice of counsel, claimant switched gears and filed a written withdrawal of her hearing request--having come to believe that, because of her marriage at age 16, she was statutorily ineligible for benefits. The ALJ issued a notice of dismissal six days later pursuant to 20 C.F.R. 404.957(a). At some point thereafter, claimant and her counsel came to the conclusion that they had been mistaken--that, because claimant had been "left single" before age 22, she was in fact eligible for child's benefits. Accordingly, on January 11, 1996, claimant asked the Appeals Council to vacate the ALJ's dismissal of her hearing request and reinstate her application. She there recounted the evolution in her legal position, while also explaining that the change in her marital status had not earlier been revealed due to unidentified "mental limitations." The Appeals Council was unpersuaded. Finding no "good cause" for the request as required by 20 C.F.R. 404.960, it declined to vacate the dismissal. Claimant filed the instant action under 42 U.S.C. 405(g) in order to challenge this ruling. The Commissioner responded with a motion to dismiss for lack of jurisdiction, contending on the basis of Califano v. Sanders, 430 U.S. 99 (1977), that the agency decision was not subject to review. The district court agreed and summarily dismissed the case. This appeal followed. Under 405(g), judicial review is limited to "any final decision of the Secretary made after a hearing." In Sanders, the Court held that the Commissioner's discretionary decision not to reopen a claim for benefits did not fall within this provision and so was unreviewable (absent a colorable constitutional challenge). See 430 U.S. at 107-09. The same conclusion has been reached with respect to the dismissal of a hearing request. This is so whether such a dismissal occurred because res judicata was thought applicable, see, e.g., Rios v. Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980); Matos v. Secretary of HEW, 581 F.2d 282, 286-87 (1st Cir. 1978), because the hearing request was deemed inexcusably untimely, see, e.g., Hilmes v. Secretary of HHS, 983 F.2d 67, 69-70 (6th Cir. 1993), or because claimant was absent from the hearing without good cause, see, e.g., Brandyburg v. Sullivan, 959 F.2d 555, 558-62 (6th Cir. 1992); Doe v. Secretary of HHS, 744 F.2d 3, 4-5 (1st Cir. 1984) (per curiam). Here, where the Commissioner declined to set aside the voluntary withdrawal of a hearing request, there is no reason not to apply the same rule. Cf. Hilmes, 983 F.2d at 70 ("the reason for the dismissal of the hearing request--so long as it does not implicate constitutional concerns--does not appear to affect the analysis"). The arguments advanced by claimant do not call for a different result. She attempts to invoke the exception for constitutional claims--by contending that the procedures here were "so fundamentally unfair" as to constitute a due process violation--but provides no supporting argumentation. Her reliance on a regulation governing the withdrawal of benefit applications is unhelpful. Her assertion that the Appeals Council's ruling constituted a "final decision" overlooks the statutory mandate that only a decision "made after a hearing" is appealable. And the fact that her hearing request was withdrawn after the hearing had commenced is without significance. Cf. Rios, 614 F.2d at 26 (hearing held by ALJ to consider new evidence prior to dismissal of hearing request on res judicata grounds held not to be "a 'hearing' within the meaning of 405(g)"). Affirmed.