                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

THOMAS KLEMM,                           
                 Plaintiff-Appellant,        No. 06-16981
                 v.
                                              D.C. No.
                                            CV 04-2140 DAD
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,             OPINION
               Defendant-Appellee.
                                        
        Appeal from the United States District Court
           for the Eastern District of California
        Dale A. Drozd, Magistrate Judge, Presiding

                  Argued and Submitted
         June 13, 2008—San Francisco, California

                  Filed September 16, 2008

 Before: A. Wallace Tashima, M. Margaret McKeown, and
            Ronald M. Gould, Circuit Judges.

                 Opinion by Judge Tashima




                            12901
12904                 KLEMM v. ASTRUE


                         COUNSEL

Ian M. Sammis, San Rafael, California, for the plaintiff-
appellant.

Deborah Lee Stachel, Special Assistant United States Attor-
ney, San Francisco, California, for the defendant-appellee.


                         OPINION

TASHIMA, Circuit Judge:

   Appellee Commissioner of the Social Security Administra-
tion (“Commissioner”) denied Appellant Thomas Klemm’s
motion to reopen an application for Disability Insurance Ben-
efits (“DIB”) under Title II of the Social Security Act. Klemm
subsequently filed a complaint with the District Court, which
the District Court dismissed for lack of subject matter juris-
diction. On appeal, we confront two jurisdictional questions:
whether Klemm’s appeal was timely and whether the District
Court erred by concluding that it lacked subject matter juris-
diction. We have jurisdiction to determine our own jurisdic-
tion, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir. 2007)
(per curiam), and hold that Klemm’s notice of appeal, though
                       KLEMM v. ASTRUE                   12905
deficient, was timely filed. Exercising our jurisdiction pursu-
ant to 28 U.S.C. § 1291, we further hold that Klemm failed to
state a colorable constitutional claim and affirm the district
court.

                              I.

   Klemm filed an application for DIB on October 23, 1996,
alleging disability due to constant pain from a “bad back and
both knees” with an onset date of October 1, 1992. The Com-
missioner denied Klemm’s application on December 7, 1996,
in a letter that also informed Klemm of the appeal procedure.
Klemm did not appeal.

   Klemm filed a second application for DIB and an applica-
tion for Supplemental Security Income under Title XVI of the
Social Security Act on April 12, 2002. In this application,
Klemm again alleged a disability onset date of October 1,
1992. The application was denied initially and on reconsidera-
tion. Klemm timely requested a hearing and, in April 2003,
asked the Administrative Law Judge (“ALJ”) to reopen the
1996 denial of benefits.

   The ALJ denied Klemm’s motion to reopen as untimely,
finding “no evidence in the record that the claimant lacked the
mental capacity to timely request review of the prior adverse
determination.” Thus, the ALJ determined that res judicata
applied to Klemm’s request for benefits from October 1,
1992, to December 7, 1996, the date of the initial denial. As
to the remainder of Klemm’s application, the ALJ determined
that Klemm was disabled due to obesity, sleep apnea, and
degenerative arthritis in the knee with an onset date of
December 8, 1996. The Appeals Council affirmed.

   Klemm then commenced this action, in which he filed a
motion for summary judgment arguing, in part, that he
“lacked the mental capacity to timely request review” of the
December 7, 1996, denial of benefits. The Commissioner
12906                  KLEMM v. ASTRUE
filed a motion to dismiss for lack of subject matter jurisdic-
tion, which the district court granted. Klemm then filed a
motion to alter or amend the judgment, Fed. R. Civ. P. 59(e),
which the district court denied on August 14, 2006.

   On October 10, 2006, Klemm’s notice of appeal arrived by
mail in the Office of the Clerk for the Eastern District of Cali-
fornia. The notice of appeal was accompanied by a check for
the filing fee, but the check was postdated to October 12,
2006. The Clerk rejected the notice and mailed it and the
check back to Klemm’s counsel. An accompanying deficiency
notice read: “The check was postdated to 10/12/06. We are
also an electronic filing court — this appeal should be filed
online.” Klemm filed an electronic notice of appeal on Octo-
ber 16, 2006.

                               II.

   [1] We must first determine whether we have jurisdiction
over Klemm’s appeal. Because an agency of the United States
is a party, the notice of appeal was required to be filed within
sixty days after the entry of final judgment. Fed. R. App. P.
4(a)(1)(B). This time constraint is “both mandatory and juris-
dictional.” United States v. Sadler, 480 F.3d 932, 937 (9th
Cir. 2007). For this court to have jurisdiction over this appeal,
Klemm must have filed his notice of appeal on or prior to
October 13, 2006, sixty days after the denial of his motion to
alter or amend the judgment.

   The Commissioner contends that Klemm’s notice of appeal
was filed on October 16, 2006, when Klemm electronically
filed the notice with the proper payment, in conformance with
the local rules. The Commissioner further contends that the
Clerk properly rejected the October 10, 2006, notice of appeal
because the accompanying filing fee check was postdated and
                        KLEMM v. ASTRUE                      12907
the notice was filed by mail rather than electronically, as
required by local rule.1

  Klemm concedes that his October 10, 2006, notice of
appeal was not filed electronically, as the local rules require,
and that he attempted to pay the filing fee with a postdated
check. Nonetheless, he contends that the notice was filed on
October 10, 2006, because the Clerk physically received the
notice of appeal on that date. We agree.

   [2] As a general rule, a notice of appeal is considered filed
at the time the clerk receives the document. Houston v. Lack,
487 U.S. 266, 274 (1988) (collecting cases); Aldabe v.
Aldabe, 616 F.2d 1089, 1091 (9th Cir. 1980). In this case,
however, the Clerk rejected Klemm’s notice of appeal for two
reasons: (1) the filing fee was paid with a postdated check,
and (2) the appeal was filed by mail rather than electronically,
as required by local rule.

   [3] If the Clerk had rejected the notice of appeal solely on
the ground that the notice was accompanied by a postdated
check, our jurisdiction would be clear. In Parissi v.
Telechron, Inc., the Supreme Court held that a notice of
appeal was filed within the jurisdictional time period, not-
withstanding the fact that the filing fee was not paid until after
the deadline to appeal had passed. 349 U.S. 46, 47 (1955) (per
curiam). We reached the same conclusion in Gee v. Tenneco,
Inc., holding that “[w]here a notice of appeal is physically
placed in the hands of the clerk’s office within the prescribed
time limit for filing, but the fee is not paid and filing does not
take place until the limit expires, the notice may be treated as
timely.” 615 F.2d 857, 859 (9th Cir. 1980).

  There is no principled distinction between a notice of
  1
   The Commissioner also argues that the notice and proof of service
were deficient because they were postdated to October 12, 2006. The
Clerk, however, did not reject the notice on these grounds.
12908                     KLEMM v. ASTRUE
appeal submitted without a filing fee and a notice of appeal
accompanied by a postdated check. Thus, the postdated check
cannot, by itself, render the October 10, 2006, notice of
appeal untimely.

   [4] The Clerk, however, also rejected Klemm’s October 10,
2006, notice of appeal because it was mailed rather than elec-
tronically filed. The Eastern District of California has adopted
an electronic case filing system. The local rules provide:

      Unless excused by the Court or by the electronic fil-
      ing procedures set forth in these Rules, attorneys
      shall file all documents electronically pursuant to
      those Rules. All complaints, and subsequent
      motions, pleadings, briefs, exhibits, and all other
      documents in a case shall be electronically filed
      except as otherwise provided by these Rules.

E.D. Cal. Local R. 5-133(a). The local rules further state
when electronic filing is complete: “[A] document filed elec-
tronically shall not be considered filed for purposes of these
Local Rules or the Federal Rules of Civil or Criminal Proce-
dure until the filing counsel receives a system-generated
‘Notice of Electronic Filing.’ ” E.D. Cal. Local R. 5-134(a).2
Klemm did not comply with these local rules.

  [5] Klemm’s failures do not defeat our jurisdiction, how-
ever, because filing requirements dictated by local rules are
not jurisdictional. Loya v. Desert Sands Unified Sch. Dist.,
721 F.2d 279, 280 (9th Cir. 1983). Local rules govern local
practice, but a violation of local rules cannot divest this court
of the jurisdiction afforded to it by Congress. See Cintron v.
Union Pac. R.R. Co., 813 F.2d 917, 920 (9th Cir. 1987); Loya,
721 F.2d at 280-81. Thus, a notice of appeal is filed when it
  2
   Klemm did not receive a Notice of Electronic Filing until he re-filed
electronically on October 16, 2006.
                            KLEMM v. ASTRUE                          12909
is received by the clerk, notwithstanding deficiencies in form
that violate local rules.

   In Cintron, we considered whether a complaint was filed
before the statute of limitations had run. The clerk received
the complaint before the expiration of the statute of limita-
tions, but rejected the complaint for three reasons: the plead-
ing lacked a two-hole punch at the top of each page; it did not
have a civil cover sheet; and it was accompanied by a ninety-
nine dollar check, an amount above the required sixty dollar
filing fee. Cintron, 813 F.2d at 920. We found the complaint
timely because the deficiencies did not amount to jurisdic-
tional bars. We explained that the first two deficiencies were
only “governed by local rules” and that the filing fee require-
ment, while statutory, did not rise to “the level of a jurisdic-
tional requirement.” Id. Because the clerk received the
complaint before the statute of limitations had run, it was
timely filed. Id. at 921.

  In Loya, we held that a complaint prepared and filed on
wrong-sized paper was timely filed because it “arrived in the
hands of the Clerk within the statutory period.” 721 F.2d at
280. We emphasized that local rules are not jurisdictional
requirements but are “merely for the convenience of the
court’s own record keeping.” Id.

   [6] Our cases are also in accord with Federal Rule of Civil
Procedure 5(d)(4), which provides: “The clerk must not refuse
to file a paper solely because it is not in the form prescribed
by these rules or by a local rule or practice.” Under this rule,
the Clerk was obligated to accept Klemm’s notice of appeal
for filing, despite Klemm’s failure to comply with the local
electronic filing rules.3 In any event, the Clerk’s failure for-
  3
    This is not to say that the District Court is without power to enforce
its rules. The local rules authorize sanctions for counsel’s failure “to com-
ply with these Rules.” E.D. Cal. Local R. 11-110. Such sanctions, how-
ever, cannot strip this court of jurisdiction.
12910                  KLEMM v. ASTRUE
mally to file Klemm’s notice of appeal is of no import
because the paper was deemed filed when it “arrived in the
hands of the Clerk within the statutory period.” Loya, 721
F.2d at 280. Thus, Klemm’s notice of appeal was timely even
though it was mailed to the Clerk, rather than filed electroni-
cally, as the local rules require.

   [7] The Commissioner’s final argument on lack of appellate
jurisdiction is that the combination of the postdated check and
the failure to electronically file rendered the notice of appeal
so deficient that it was not filed when it was received by the
Clerk. We find no support for this argument. As demonstrated
above, neither error standing alone can defeat our jurisdiction,
and we see no reason why these errors in combination should
apply with any greater force.

   [8] Other circuits have considered a notice of appeal “filed”
when received by the Clerk with deficiencies equal to or
greater than Klemm’s. See Wisniewski v. Dir., OWCP, U.S.
Dep’t of Labor, 929 F.2d 952, 956 (3d Cir. 1991) (holding
that a petition for review was timely even though it did not
include additional copies, the names and addresses of counsel
for the respondent, and a docketing fee); Long v. U.S. Dep’t
of the Air Force, 751 F.2d 339, 342 (10th Cir. 1984) (accept-
ing as timely a notice of appeal that was missing a filing fee
and a certificate of service); Haney v. Mizell Mem’l Hosp.,
744 F.2d 1467, 1472 (11th Cir. 1984) (holding that a notice
of appeal was timely filed where the plaintiff filed a motion
to proceed in forma pauperis within the time required by Fed-
eral Rule of Appellate Procedure 4).

   [9] While error-ridden, Klemm’s filing was clearly a notice
of appeal. There may be a case in which a filing is so deficient
that it cannot fairly be considered a notice of appeal and, thus,
would not be deemed filed at the moment of receipt by the
clerk. This, however, is not that case. The defects in Klemm’s
notice of appeal could not possibly have obscured the nature
of the filing.
                        KLEMM v. ASTRUE                     12911
   [10] Because the Clerk received Klemm’s notice of appeal
on October 10, 2006, and that date was within sixty days of
the order from which Klemm appeals, we have jurisdiction
over his appeal.

                               III.

   [11] The Social Security Act grants to district courts juris-
diction to review only “final decisions” of the Commissioner.
42 U.S.C. § 405(g). Because a denial of a motion to reopen
is a discretionary decision, it is not final and, thus, is not gen-
erally reviewable by a district court. Udd v. Massanari, 245
F.3d 1096, 1098-99 (9th Cir. 2001) (citing Califano v. Sand-
ers, 430 U.S. 99, 107-09 (1977)). The Supreme Court, how-
ever, recognized an exception to this rule in Sanders. The
Court explained that federal subject matter jurisdiction exists
“where the . . . denial of a petition to reopen is challenged on
constitutional grounds.” Sanders, 430 U.S. at 109. We under-
stand the Sanders exception to “ ‘appl[y] to any colorable
constitutional claim of due process violation that implicates a
due process right either to a meaningful opportunity to be
heard or to seek reconsideration of an adverse benefits deter-
mination.’ ” Udd, 245 F.3d at 1099 (quoting Evans v. Chater,
110 F.3d 1480, 1483 (9th Cir. 1997)).

   [12] A constitutional claim is colorable if it is “not ‘wholly
insubstantial, immaterial, or frivolous.’ ” Id. (quoting Boett-
cher v. Sec’y of Health & Human Servs., 759 F.2d 719, 722
(9th Cir. 1985)); see also Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998) (“Dismissal for lack of subject-
matter jurisdiction because of the inadequacy of the federal
claim is proper only when the claim is ‘so insubstantial,
implausible . . . or otherwise completely devoid of merit as
not to involve a federal controversy.’ ”) (quoting Oneida
Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666
(1974)). A “mere allegation of a due process violation” is not
a colorable constitutional claim. Anderson v. Babbitt, 230
F.3d 1158, 1163 (9th Cir. 2000) (citing Hoye v. Sullivan, 985
12912                  KLEMM v. ASTRUE
F.2d 990, 992 (9th Cir. 1993)). Rather, the claim must be sup-
ported by “ ‘facts sufficient to state a violation of substantive
or procedural due process.’ ” Id. (quoting Hoye, 985 F.2d at
992).

   [13] Klemm contends that the denial of his motion to
reopen violated his due process rights because mental impair-
ments prevented him from petitioning for review of his initial
denial of benefits. An allegation of mental impairment can
form the basis of a colorable constitutional claim if the mental
impairment prevented the claimant from understanding how
to contest the denial of benefits. Udd, 245 F.3d at 1099 (hold-
ing that the claimant “asserted a colorable constitutional
claim” where the claimant averred that “he lacked the mental
capacity to understand” a termination of benefits and the pro-
cess for review). Additionally, in Evans we recognized that
allegations of mental impairment as defined by Social Secur-
ity Ruling (“SSR”) 91-5p amount to a colorable due process
claim. Evans, 110 F.3d at 1483. SSR 91-5p directs an ALJ to
grant a motion to reopen if a claimant “lacked the mental
capacity to understand the procedures for requesting review.”
Factors affecting a claimant’s capacity to understand the pro-
cedures include: (1) “inability to read or write,” (2) “lack of
facility with the English language,” (3) “limited education,”
and (4) “any mental or physical condition which limits the
claimant’s ability to do things for him/herself.” SSR 91-5p.

   [14] Klemm does not present a colorable due process claim
because his allegation of mental impairment is completely
unsupported by facts. Nothing in the record evinces a mental
impairment that could have prevented Klemm from under-
standing the process for appeal. Klemm applied for DIB in
1996 due to pain in his back and knees, not any mental
impairment. Before the ALJ, Klemm testified that at the time
of the initial denial he was “depressed,” but he did not allege
that his depression was such that he could not understand the
review process. Moreover, the record is devoid of any medi-
cal evidence of depression in late 1996. Klemm suffered from
                            KLEMM v. ASTRUE                          12913
obesity and sleep apnea during the relevant period, but he
does not allege that either condition prevented him from
understanding the review process.4

   [15] Because Klemm presents no facts in support of his
allegation of mental impairment, we find that his constitu-
tional claim is “wholly insubstantial” and thus hold that
Klemm failed to state a colorable constitutional claim. In the
absence of a colorable constitutional claim, the district court
lacked jurisdiction to hear Klemm’s claim.

   AFFIRMED.




  4
   Klemm further contends that he was not physically capable of proceed-
ing with the review process due to his obesity. In order to allege a color-
able due process violation, however, Klemm must present facts to show
that he lacked the capacity to understand the review process. See Udd, 245
F.3d at 1099. Klemm does not allege that his physical incapacities pre-
vented him from understanding the review process.
   While there may be a case in which the severity of a claimant’s physical
incapacity is such that the denial of a motion to reopen amounts to a due
process violation, Klemm’s allegation does not rise to that level. Klemm
testified before the ALJ that at the time his initial application was denied,
he could ride a bus and walk at least one-hundred feet with a cane.
