                                                                           FILED
                             NOT FOR PUBLICATION                             JUL 7 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DAVID W. FERNANDES,                              No. 10-15344

               Plaintiff - Appellant,            D.C. No. 1:08-cv-01775-DLB

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Dennis L. Beck, Magistrate Judge, Presiding **

                              Submitted June 15, 2011 ***

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       David W. Fernandes appeals pro se from the district court’s judgment



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).

       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissing for lack of subject matter jurisdiction his action against the

Commissioner of Social Security. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. Subia v. Comm’r of Soc. Sec., 264 F.3d 899, 901 (9th Cir.

2001). We affirm.

      The district court properly dismissed Fernandes’s action for lack of subject

matter jurisdiction because Fernandes, through counsel, withdrew his request for a

hearing before an administrative law judge and thus failed to exhaust his

administrative remedies, and he failed to allege a colorable constitutional claim.

See id. at 902-03.

      Fernandes’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           2                                   10-15344
