     Case: 16-31092      Document: 00514104990         Page: 1    Date Filed: 08/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-31092                                  FILED
                                  Summary Calendar                           August 7, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
DIANNE WEEKS,

              Plaintiff - Appellant

v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:15-CV-2653


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Dianne Weeks (“Weeks”) appeals the district court’s
dismissal of her action for lack of jurisdiction. For the reasons below, we
AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 16-31092
                                      I.
      Weeks applied for disability insurance benefits in November 2009. The
claim was initially denied on April 20, 2010, and Weeks requested a hearing,
after which an Administrative Law Judge (“ALJ”) issued an unfavorable
decision on January 21, 2011. The Appeals Council (“Appeals Council”) of the
Social Security Administration (“SSA”) denied Weeks’s request for review in
April 2012, and Weeks did not request judicial review from the district court.
      Then, on July 1, 2013, after retaining counsel, Weeks submitted a second
application for benefits with a statement from her doctor that related back to
the earlier time period. On July 22, 2013, the SSA denied Weeks’s second
application on the basis that it involved the same issues as the January 2011
decision. Weeks did not pursue her administrative appeals process regarding
this denial.
      Starting in July 2013, Weeks also began the process for reopening the
November 2009 application. She details communications with various SSA
offices that occurred between July 2013 and September 2015, at which point
the Appeals Council found no reason to reopen the April 2012 decision.
      Weeks then filed a complaint in the district court on November 6, 2015.
Defendant-Appellee     Acting   Commissioner     of   Social   Security    (the
“Commissioner”) filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), or in the alternative, for summary judgment.           The
magistrate judge concluded that the court lacked subject matter jurisdiction to
consider the Commissioner’s decision not to reopen the April 2012 decision
absent a colorable constitutional claim, which Weeks had not sufficiently
raised.   Weeks filed objections to the report and recommendation of the
magistrate judge, and the district court adopted the recommendation of the
magistrate judge and dismissed the case in its entirety. Weeks now appeals.


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                                  No. 16-31092
                                        II.
      This court reviews de novo a district court’s decision to dismiss based on
lack of subject matter jurisdiction and applies the same standard as the district
court. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).
                                       III.
      Before a federal court may exercise jurisdiction over an action pursuant
to 42 U.S.C. § 405(g), the claimant must have exhausted his administrative
remedies. See Matthews v. Eldridge, 424 U.S. 319, 327–28 (1976); Harper v.
Bowen, 813 F.2d 737, 739 (5th Cir. 1987). Jurisdiction is clearly limited to
actions that amount to a “final decision” and “made after a hearing.”
Weinberger v. Salfi, 422 U.S. 749, 764 (1975); Harper, 813 F.2d at 739. The
term “final decision” is undefined in the Act, and the meaning of that term was
left to the Social Security regulations. Brandyburg v. Sullivan, 959 F.2d 555,
559 (5th Cir. 1992). In this regard, we have explained the administrative steps
leading up to a final decision as follows: (1) an individual files a claim with the
SSA for initial determination; (2) a dissatisfied claimant must file a request for
and receive reconsideration; (3) after obtaining the initial and reconsidered
determinations, a dissatisfied claimant may file for an evidentiary hearing
before an ALJ; (4) a dissatisfied claimant may request that the Appeals Council
review the ALJ’s decision. Harper, 813 F.2d at 739.
      The finality requirement of section 405(g), however, does not preclude
judicial review if a claimant asserts a colorable constitutional challenge. See
Califano v. Sanders, 430 U.S. 99, 107–09 (1977); Robertson v. Bowen, 803 F.2d
808, 810 (5th Cir. 1986). “Merely alleging a constitutional violation or making
a conclusory allegation is not enough; the claimant must have a colorable
constitutional claim.” Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
      We agree with the district court that jurisdiction is lacking over Weeks’s
claims relating to the refusal to reopen the April 2012 decision. A refusal to
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                                  No. 16-31092
reopen is not subject to judicial review. 20 C.F.R. § 404.903(l). Accordingly,
federal courts lack jurisdiction to review a decision not to reopen a claim for
benefits. See Califano, 430 U.S. at 107–08; Thibodeaux v. Bowen, 819 F.2d 76,
79–80 (5th Cir. 1987). Thus, there was no jurisdiction over Weeks’s claims
relating to the refusal to reopen absent a colorable constitutional claim.
      We further agree with the district court that Weeks did not present a
colorable constitutional claim in her complaint because Weeks was not entitled
to a hearing on her request to reopen.          See Califano, 430 U.S. at 108;
Brandyburg, 959 F.2d at 560.         Accordingly, the district court correctly
determined that the refusal to reopen was not subject to judicial review and
that Weeks did not allege a colorable constitutional claim.
      With respect to Weeks’s complaint related to the denial of her 2013
application as a new claim, she did not meet her burden to establish that she
exhausted her administrative remedies as to that claim such that jurisdiction
would be proper. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)
(“If a defendant makes a ‘factual attack’ upon the court’s subject matter
jurisdiction over the lawsuit, . . . a plaintiff is also required to submit facts
through some evidentiary method and has the burden of proving by a
preponderance of the evidence that the trial court does have subject matter
jurisdiction.”).   The only potential argument for a colorable constitutional
violation related to that claim is that the prototype process applied. Not only
was that argument never made before the district court, but also it is
inadequately briefed on appeal. It is therefore abandoned, Young v. Repine (In
re Repine), 536 F.3d 512, 518 n.5 (5th Cir. 2008); FED. R. APP. P. 28(a)(8), and
we do not address it.
      AFFIRMED.




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