                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 26, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 SHAWN LEE ALLRED,

               Plaintiff–Appellant,
                                                         No. 08-4079
 v.
                                               (D.C. No. 2:06-CV-00566-DAK)
                                                          (D. Utah)
 SOCIAL SECURITY
 ADMINISTRATION,

               Defendant–Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and MCCONNELL, Circuit Judges.


      Shawn Lee Allred, proceeding pro se, appeals the district court’s dismissal

of his complaint seeking payment of his suspended Social Security benefits. The

court found that it lacked subject matter jurisdiction due to Allred’s failure to

exhaust administrative remedies. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm for substantially the same reasons given by the district court.



      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
      In July 2001, Allred filed applications for benefits under Title II and Title

XVI of the Social Security Act. The Commissioner of Social Security (“the

Commissioner”) determined that Allred was entitled to benefits under Title II as

of July 2000 and eligible for benefits under Title XVI as of August 2001. He

received Title II benefits through July 2003 and Title XVI benefits through

October 2003.

      In December 2003, after determining that Allred was no longer financially

eligible to receive Title XVI benefits, the Commissioner suspended those benefits

with an effective date of November 2003 and eventually terminated them as of

November 2004. In January 2005, the Commissioner suspended his Title II

benefits, effective August 2003, because Allred was imprisoned pursuant to a

criminal conviction. Allred did not file an administrative appeal from any of

these decisions.

      On July 11, 2006, Allred filed a pro se complaint in the United States

District Court for the District of Utah seeking payment of the suspended benefits.

The Commissioner moved to dismiss for lack of subject matter jurisdiction

because Allred had failed to exhaust administrative remedies. After ordering the

Commissioner to produce the administrative record, the district court concluded

that Allred had not exhausted his administrative remedies, and it granted the

motion to dismiss.




                                        -2-
      By statute, federal courts have jurisdiction to review “any final decision of

the Commissioner.” 42 U.S.C. § 405(g); see also § 405(h) (“No findings of fact

or decision of the Commissioner . . . shall be reviewed by any person, tribunal, or

governmental agency except as herein provided.”). Because the term “final

decision” is not defined in the statute, “its meaning is left to the [Commissioner]

to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 766 (1975).

Under the regulations, a decision of the Commissioner is not “final” for

jurisdictional purposes unless the claimant first exhausts his administrative

remedies. 20 C.F.R. §§ 404.900(a), 416.1400(a); see Marshall v. Shalala, 5 F.3d

453, 455 (10th Cir. 1993); see also Califano v. Sanders, 430 U.S. 99, 102 (1977)

(“The Act and regulations thus create an orderly administrative mechanism, with

district court review of the final decision of the [Commissioner] . . . .”).

      Allred failed to exhaust his administrative remedies because he did not file

an administrative appeal from the decisions of the Commissioner that he now

challenges in his complaint. Accordingly, unless Allred is excused from the

exhaustion requirement, the district court lacked jurisdiction to consider his

claims.

      A claimant is excused from the exhaustion requirement if (1) full

exhaustion would be futile, (2) he has suffered irreparable harm, and (3) he states

a colorable constitutional claim that is collateral to his substantive claim of

entitlement to social security benefits. See Marshall, 5 F.3d at 455; see also

                                          -3-
Mathews v. Eldridge, 424 U.S. 319, 330-32 (1976). Even with the benefit of

liberal construction, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), Allred does

not allege that exhaustion would have been futile. We note that the

Commissioner stated in his brief before this court that he “has decided to grant

Allred further review of his claim” in order to determine whether “[Allred] has

established good cause for missing the deadlines to request review.” Appellee Br.

at 15; see 20 C.F.R. §§ 404.911, 416.1411. For this reason, he is not excused

from his failure to exhaust administrative remedies, and the district court properly

dismissed his complaint.

      We AFFIRM the judgment of the district court. We GRANT Allred’s

motion to proceed in forma pauperis on appeal, and we DENY Allred’s motion

for a change of venue.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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