                                                                          FILED
                           NOT FOR PUBLICATION                            OCT 17 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RONALD WELCH,                                   No. 12-56850

              Plaintiff - Appellant,            D.C. No. 5:11-cv-00740-MLG

  v.
                                                MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Central District of California
                  Marc L. Goldman, Magistrate Judge, Presiding

                           Submitted October 8, 2013**
                              Pasadena, California

Before: FERNANDEZ, PAEZ, and HURWITZ, Circuit Judges.

       Ronald Welch appeals the district court’s judgment dismissing his complaint

against the Commissioner of Social Security for lack of subject matter jurisdiction.



        *
             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).
We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s judgment.

We vacate and remand.

      The Social Security Appeals Council dismissed as untimely Welch’s request

for review of a decision by an administrative law judge denying his application for

disability benefits. Welch’s attorney claims that he timely filed the request for review

by facsimile, as permitted by agency rules. To prove that he did so, Welch’s attorney

provided the Council with, among other documents, a transmission log with the

Council’s fax number.

      Although the Council’s dismissal order is not a final decision, the district court

nonetheless had jurisdiction to review it under 42 U.S.C § 405(g) because Welch

asserted a colorable constitutional claim. Califano v. Sanders, 430 U.S. 99, 109

(1977); Matlock v. Sullivan, 908 F.2d 492, 493–94 (9th Cir. 1990). We recently held

that due process requires the Commissioner to give “some explanation” when

dismissing an apparently valid request for a hearing. Dexter v. Colvin, No. 12-35074,

2013 WL 5434699, at *3 (9th Cir. Sept. 30, 2013). Because Welch provided the

Council with evidence that, if credited, would establish that he timely filed the request

for review, due process requires the Council to provide some explanation why it

concluded to the contrary.




                                           2
       We vacate the judgment of the district court and remand to the district court to

remand to the Commissioner to consider the evidence that Welch timely filed his

request for review and either to explain her decision dismissing the request or to treat

it as timely.

       VACATED and REMANDED.




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