                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 22 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARIA HASEEB,                                    No.   16-15226

              Plaintiff-Appellant,               D.C. No. 3:15-cv-03931-LB

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Laurel D. Beeler, Magistrate Judge, Presiding

                             Submitted May 18, 2017**


Before: D.W. NELSON, TROTT, and OWENS, Circuit Judges.

      Maria Haseeb appeals the district court’s dismissal as untimely of her

complaint seeking review of the Commissioner of Social Security’s denial of her



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for supplemental security income under Title XVI of the Social

Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The complaint was late because it was filed more than sixty-five days after

the Appeals Council’s decision of March 26, 2015. See 42 U.S.C. § 405(g) (setting

forth a sixty-day statute of limitations running from the date of a final decision of

the Commissioner). Counting sixty days plus five days for receipt of the Appeals

Council’s decision, pursuant to 20 C.F.R. § 422.210(c), the complaint was due by

June 1, 2015. Haseeb, however, did not file it until August 27, 2015.

      Haseeb contends that the Appeals Council’s decision was not a final

decision because her request for an extension of time was pending, and the Appeals

Council therefore retained jurisdiction, until November 19, 2015. The Appeals

Council’s decision whether to grant an extension of time, however, is discretionary

and therefore non-final for purposes of the sixty-day deadline. See 42 U.S.C.

§ 405(g) (providing that complaint must be filed within sixty days “or within such

further time as the Commissioner of Social Security may allow”); Klemm v Astrue,

543 F.3d 1139, 1144 (9th Cir. 2008) (holding that ALJ’s discretionary denial of an

untimely motion to reopen was not final and reviewable). The Appeals Council’s

August 7, 2015 denial of Haseeb’s request for reconsideration also did not amount

to a new final decision of the Commissioner. See Banta v. Sullivan, 925 F.2d 343,


                                           2
344-45 (9th Cir. 1991) (holding that Appeals Council’s denial of a request to

reopen or vacate its previous decision was not a new final decision and did not

restart the sixty-day period for filing a district court action).

       Haseeb also has not established a colorable claim of a denial of due process.

See Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013). She contends that the

Appeals Council’s delay in denying her request for an extension of the sixty-day

time limit until a date well after the sixty days had expired prevented her from

timely filing her complaint because she reasonably relied on the Appeals Council’s

general practice of not ruling until after the deadline but then granting such

requests. These circumstances do not establish a colorable claim of the denial of a

meaningful opportunity to be heard or to seek reconsideration of an adverse

benefits determination. See Klemm, 543 F.3d at 1144 (holding that a due process

claim is colorable if it is not wholly insubstantial, immaterial, or frivolous); Udd v.

Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (holding that due process requires

that a claimant receive meaningful notice and an opportunity to be heard before her

claim for disability benefits may be denied).

       AFFIRMED.




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