                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2509
                                       ___________

                                KENYOTTA TIMMONS,
                                            Appellant

                                             v.

                      COMMISSIONER OF SOCIAL SECURITY
                      ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 1-16-cv-01550)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 11, 2017
             Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges

                           (Opinion filed: December 15, 2017)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Pro se appellant Kenyotta Timmons appeals from the District Court’s order

granting the motion of appellee Commissioner of Social Security (“Commissioner”) to

dismiss his complaint for lack of subject matter jurisdiction. For the reasons stated


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
herein, we will affirm in part, vacate in part, and remand to the District Court for

proceedings consistent with this opinion.

       From the complaint and other filings in the District Court, we glean the following

facts. Timmons requested a hearing with an Administrative Law Judge (“ALJ”) alleging

that the Commissioner had incorrectly determined that his disability had ceased. A

hearing was scheduled, and Timmons was sent a notice which, among other things, set

forth the time and place of the hearing, advised him that he was responsible for his

transportation costs, and warned him that failure to appear at the hearing without good

cause would result in automatic dismissal of his hearing request.

       On the day of the hearing, Timmons called the hearing site and explained that he

would not be attending the hearing because he could not afford the transportation costs.

He also sent a letter to the Commissioner, which belatedly asked for a postponement of

the hearing on the basis that he was “[i]ndigent having not enough money to[] pay for

transportation costs to this hearing today.” On that same day, the ALJ issued and sent

him a request to show cause for failure to appear with instructions to return a written

explanation of why he did not come to the hearing.

       In his response to the request to show cause, Timmons again explained that he was

“indigent” and unable to afford to travel to the hearing site; he also explained that he did

not go to the hearing because of “[e]pile[p]tic seizure and ongoing continuous relapse of

[his] disability condition.” The ALJ, in his subsequent order of dismissal, noted that

Timmons had been notified that his transportation costs were not payable to the hearing
                                              2
site, and concluded that the inability to pay such costs did not constitute good cause for

having missed the hearing. Timmons requested review by the Appeals Council. The

Appeals Council denied his request for review.

        Timmons then filed a civil action in the District Court, seeking judicial review of

the administrative proceedings. The Commissioner moved to dismiss the complaint for

lack of subject matter jurisdiction, on the basis that Timmons’s failure to attend the

hearing meant that he had failed to obtain a final decision that would permit judicial

review of the merits of his claim. The District Court granted the motion and dismissed

the case for lack of subject matter jurisdiction. The District Court further concluded that

Timmons’s complaint did not present any constitutional issue over which it could

exercise jurisdiction.

       This appeal followed. We have jurisdiction to review the District Court’s order

under 28 U.S.C. § 1291. Our review of the dismissal of Timmons’s complaint for lack of

subject matter jurisdiction is plenary. Tobak v. Apfel, 195 F.3d 183, 185 (3d Cir. 1999).

       The District Court’s jurisdiction over claims arising under the Social Security Act

is provided by 42 U.S.C. § 405(g), which states, in relevant part, that an “individual, after

any final decision of the Commissioner of Social Security made after a hearing . . . may

obtain a review of such decision by a civil action.” The Supreme Court has stated that §

405(g) “clearly limits judicial review to a particular type of agency action, a ‘final

decision’ of the [Commissioner] made after a hearing.” Califano v. Sanders, 430 U.S. 99,

108 (1977). But these exhaustion requirements may be waived where the claimant
                                              3
alleges a colorable claim implicating a constitutional issue. See id. at 108-09; Bacon v.

Sullivan, 969 F.2d 1517, 1521-22 (3d Cir. 1992).

       In part of his complaint, Timmons discussed the decision to terminate his benefits

and stated that a Social Security representative should have accessed his medical and

hospitalization records. Complaint at 2. As recounted above, Timmons did not attend his

scheduled hearing, and the ALJ dismissed Timmons’s hearing request for failure to show

good cause for having missed the hearing. Accordingly, because no hearing was ever

held, the District Court was correct that no “final decision” had been made, and it thus

lacked jurisdiction under § 405(g) to review the disability determination. See, e.g., Hoye

v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992) (per curiam) (holding that district court

lacked subject matter jurisdiction under § 405(g) where Social Security claimant, by

refusing to attend scheduled ALJ hearing, failed to exhaust administrative remedies upon

which judicial review depends).

       But the District Court was not correct in its conclusion that Timmons had not

alleged a colorable constitutional claim over which it had jurisdiction. Timmons’s pro se

complaint, which must be construed liberally, see Erickson v. Pardus, 551 U.S. 89, 94

(2007), can reasonably be interpreted as alleging that he was denied due process because

the ALJ did not follow the appropriate agency regulations to determine if he established

good cause for failing to attend the hearing. Relevant here, he specifically challenged the

ALJ’s denial of his request for review because of his failure to show good cause.

Complaint at 1; Doc. No. 11-1, Exhs. 11-13. In support, Timmons explained that various
                                             4
problems prevented him from attending the hearing. For instance, he wrote in his

complaint – just as he did in his response to the request to show cause1 – that he was

unable to attend the hearing because of a “relapse of [his] disability condition.” See 20

C.F.R. §§ 404.957(b)(2), 416.1457(b)(2) (stating that, in determining whether good cause

exists for failing to attend the hearing, “[the Commissioner] will consider any physical,

mental, educational, or linguistic limitations [] which [the claimant] may have”); Dexter

v. Colvin, 731 F.3d 977, 981-82 (9th Cir. 2013) (explaining that “if a claimant provides a

facially legitimate reason that constitutes ‘good cause’ under the Commissioner’s

regulations, then due process requires that the ALJ address it”) (citation omitted)).

Accordingly, and while we express no opinion on the merits of Timmons’s due process

claim, it is apparent that Timmons made a colorable constitutional claim over which the

District Court had jurisdiction.2


1
  The ALJ may not have considered Timmons’s response to the request to show cause.
The ALJ’s order of dismissal only refers to Timmons’s statement that he was “[i]ndigent
having not enough money to[] pay for transportation costs to this hearing today.” But
that statement is not taken from Timmons’s response to the request to show cause – it
appears in the letter that Timmons sent the Commissioner on the day of the hearing.
2
  In his complaint, Timmons challenged the decision to deny him a hearing as much or
more than the decision to deny him benefits. However, he did not present arguments
about the decision to deny him review because of his inability to attend the hearing until
the end of his reply brief. (He also discussed the issue in a subsequently filed letter in
support of his appeal). Absent extraordinary circumstances, an appellant’s failure to raise
and argue an issue in his opening brief results in the waiver of that issue on appeal. See
Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (citing Federal Rules of Appellate
Procedure 28 and Local Rule 28.1); see also Al-Ra’Id v. Ingle, 69 F.3d 28, 31 (5th Cir.
1995) (noting that pro se litigants are not excepted from this requirement). Under the
circumstances of this case, we conclude that it is appropriate to consider whether
                                             5
       For the foregoing reasons, we will affirm the dismissal order to the extent the

District Court concluded that it lacks subject matter jurisdiction under § 405(g) over the

adverse disability determination, but we will otherwise vacate the order and remand this

matter to the District Court for further proceedings, including the consideration of

Timmons’s constitutional claim.




Timmons stated in his complaint a colorable claim that he was deprived of his right to the
due process of law when the ALJ denied him review without a hearing. Cf. Gambino v.
Morris, 134 F.3d 156, 168-69 (3d Cir. 1998). And we note that the Commissioner will
not be prejudiced by our consideration of this issue; in its response brief, the
Commissioner addressed the issue of whether Timmons stated a colorable constitutional
claim over which the District Court had jurisdiction. Cf. id.
                                             6
