Matos-Cruz v. Commissioner

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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.