                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          JAN 22 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 MARIA METKO,                                    No. 08-17285

               Plaintiff - Appellant,            D.C. No. 3:07-cv-00226-BES-
                                                 RAM
   v.

 SOCIAL SECURITY                                 MEMORANDUM *
 ADMINISTRATION; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Nevada
                     Brian E. Sandoval, District Judge, Presiding

                             Submitted January 11, 2010 **


Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Maria Metko appeals pro se from the district court’s judgment dismissing

her action for failure to exhaust administrative remedies under the Social Security

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Act (“SSA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo, Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003), and we affirm.

       The district court properly concluded that it lacked subject matter

jurisdiction because Metko failed to exhaust her administrative remedies before

filing this action. See id. at 1082-86 (affirming dismissal for lack of subject matter

jurisdiction where plaintiffs failed to exhaust administrative remedies under the

SSA). We construe the dismissal as without prejudice. See O’Guinn v. Lovelock

Corr. Ctr., 502 F.3d 1056, 1063 (9th Cir. 2007) (concluding that dismissal without

prejudice is proper where plaintiff failed to exhaust administrative remedies).

       Metko’s remaining contentions are unavailing.

       AFFIRMED.




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