F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 23, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
W A N D A L. M C LER OY ,
Plaintiff-Appellant,
No. 06-3409
v. (D.C. No. 05-CV-1353-W EB)
(D . Kan.)
M ICH AEL J. ASTRU E, *
Commissioner of Social Security,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.
W anda L. M cLeroy filed a complaint for judicial review in federal district
court challenging the Social Security Commissioner’s decision not to reopen a
prior application for benefits. The case was referred to a magistrate judge who
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
recommended dismissing M s. M cLeroy’s case “because the court lacks
jurisdiction to review the decision of the Commissioner not to reopen plaintiff’s
1 st disability application.” A plt. App., Vol. III at 1036. After thoroughly
considering M s. M cLeroy’s objections to the magistrate judge’s recommendation,
the district court adopted the recommendation and ordered the case dismissed for
want of jurisdiction. See generally Blair v. Apfel, 229 F.3d 1294, 1295 (10th Cir.
2000) (“Absent a colorable constitutional claim . . ., a district court does not have
jurisdiction to review the [Commissioner’s] discretionary decision not to reopen
an earlier adjudication. Nor does the district court have jurisdiction to review the
ALJ’s denial of [a claimant]’s request for a hearing when the current claim has
the same factual basis as the initial claim.” (internal quotations omitted)). This
appeal followed.
Our jurisdiction arises under 28 U.S.C. § 1291. M s. M cLeroy frames the
issue on appeal as follow s:
W hether the district court has jurisdiction to review the
Commissioner of Social Security’s decision that the ALJ did not have
discretion to reopen plaintiff’s first or prior application for disability
insurance and supplemental security income benefits on the basis of
res judicata?
Aplt. Br. at 2. W e review de novo the district court’s determination that it was
without subject matter jurisdiction to consider M s. M cLeroy’s challenge to the
Commissioner’s decision not to reopen her prior application for benefits. See
M ires v. United States, 466 F.3d 1208, 1209 (10th Cir. 2006) (“W hether a district
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court had subject matter jurisdiction is a question of law that we review
de novo.”).
In his well-reasoned recommendation, the magistrate judge provided a
detailed summary of this case’s procedural history, and we need not restate that
material here. Having reviewed the briefs, the record, and the applicable law
pursuant to the above-mentioned standard, we conclude that M s. M cLeroy has not
identified any reversible error in this case and that the district court was correct to
dismiss the case for want of jurisdiction. W e therefore AFFIRM the judgment of
the district court for substantially the same reasons as stated in the magistrate
judge’s recommendation, Aplt. App., Vol. III at 1025-37, and the district court’s
order adopting that recommendation, id., Vol. III at 1043-47.
Entered for the Court
Robert H. Henry
Circuit Judge
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