                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         July 18, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
TERRY L. GIBBS,

             Plaintiff-Appellant,

v.                                                         No. 13-6044
                                                   (D.C. No. 5:12-CV-01030-M)
CAROLYN W. COLVIN, Acting                                 (W.D. Okla.)
Commissioner of Social Security
Administration,*

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.


      Terry L. Gibbs, pro se, appeals from the district court’s dismissal of his action

for lack of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    I. Background

      Gibbs has sought Social Security benefits since 1991. See Gibbs v. Astrue,

449 F. App’x 744, 744-45 (10th Cir. 2011) (setting out history of Gibbs’s pursuit of

benefits). In the most recent round of litigation, the district court remanded his case

to the agency for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

Gibbs appealed, and we affirmed. See id. at 744. Among other things, we rejected

Gibbs’s argument that a fully favorable decision he received in 1996 was conclusive

evidence that he was disabled prior to 2004. Id. at 745-46. We observed that the

decision Gibbs relied on was in reality a one-page administrative form that stated his

“‘case is being cleared based on [the Commissioner’s] Disability Initiatives’” and

indicated a “‘[f]ully favorable medical/vocational decision.’” Id. at 745-46. We

determined that the district court was not required to give preclusive effect to that

1996 form because Gibbs was collaterally estopped from asserting he was disabled in

1996 by virtue of a 1997 administrative law judge (ALJ) determination (upheld by a

district court and this court) that Gibbs was not disabled from 1992 to 1997. Id.

at 746.

      On remand after that appeal, the agency issued a Notice of Hearing on July 18,

2012, for an October 10 hearing before an ALJ. In a letter dated July 19, Gibbs

responded to the Notice of Hearing by questioning whether the proper issue had been

scheduled for hearing. He apparently remained of the opinion that the effect of the

1996 administrative form was an issue for the ALJ to consider at the hearing.


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      Next, Gibbs filed a complaint in the district court on September 14, 2012,

contesting the Notice of Hearing. He alleged that the remanded proceeding was

without an assigned ALJ and that the defendant Commissioner denied him due

process of law. He further asserted that the Commissioner was obligated to provide

him with a hearing on the propriety of the 1996 administrative form. He claimed that

this obligation satisfied his requirement to exhaust administrative remedies prior to

filing his complaint, and he concluded that the Commissioner was “estopped and the

July 18th, 2012 administrative proceeding is dissolved” by virtue of the obligation to

afford him a hearing regarding the 1996 form. R. at 8.

      On November 20, the Commissioner filed a motion to dismiss, asserting that

the ALJ held a hearing on October 10 but Gibbs did not appear. The Commissioner

asked the district court to dismiss the case for lack of subject matter jurisdiction due

to Gibbs’s failure to exhaust administrative remedies. A magistrate judge issued a

Report and Recommendation (R&R), recommending that the district court grant the

Commissioner’s motion and dismiss the action without prejudice for lack of subject

matter jurisdiction. The magistrate judge concluded that there was no final

appealable decision because Gibbs had not exhausted his administrative remedies.

The magistrate judge further determined that Gibbs failed to establish an exception to

the exhaustion requirement for constitutional claims and that he was estopped from

asserting disability based on the 1996 form under this court’s decision in Gibbs,

449 F. App’x 744. Gibbs filed a response to the motion to dismiss after the


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magistrate judge issued the R&R, and he also filed objections to the R&R. The

district court overruled the objections, adopted the R&R, and dismissed the action

pursuant to Federal Rule of Civil Procedure 12(b)(1).

      On January 15, 2013, Gibbs filed a motion for an extension of time to file a

notice of appeal, claiming the Commissioner had engaged in delay or inaction

regarding the remanded proceedings and had “not acknowledge[d] any pending

administrative proceeding.” R. at 74. In a court-ordered response, the Commissioner

argued, inter alia, that the motion should be denied because the ALJ had issued a

partially favorable ALJ decision on Gibbs’s benefits applications on January 25,

2013, and that decision rendered Gibbs’s arguments moot. But the district court

rejected that argument and granted Gibbs’s motion for an extension of time,

observing that the ALJ’s decision was only partially favorable. The next day, Gibbs

filed a motion that primarily sought leave to submit a reply in support of his motion

for an extension of time to appeal. In the alternative, Gibbs requested that the court

reopen the case under Federal Rule of Civil Procedure 60(b). The court denied the

motion as moot based on its prior grant of Gibbs’s motion for extension of time.

This appeal followed.

                                    II. Discussion

      “We review the district court’s dismissal for lack of subject matter jurisdiction

de novo.” Green v. Napolitano, 627 F.3d 1341, 1344 (10th Cir. 2010). Because




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Gibbs appears pro se, we afford his filings a liberal construction, but we do not act as

his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

      Under the Social Security Act, federal district courts have jurisdiction to

review “any final decision of the Commissioner of Social Security made after a

hearing.” 42 U.S.C. § 405(g) (emphasis added). “But the Act does not define ‘final

decision,’ instead leaving it to the [Social Security Administration] to give meaning

to that term through regulations.” Sims v. Apfel, 530 U.S. 103, 106 (2000). The

pertinent regulations, 20 C.F.R. §§ 404.900(a) and 416.1400(a), describe a four-step

review process leading to a final decision: (1) initial determination,

(2) reconsideration, (3) a hearing before an ALJ, and (4) a request for review by the

Appeals Council. A final decision exists only after a claimant has completed these

four steps. Id. §§ 404.900(a)(5), 416.1400(a)(5).1

      It is clear that at the time Gibbs filed his complaint, he had not completed

steps three and four after the sentence-four remand, so there was no final

administrative decision. Hence, he failed to exhaust his administrative remedies and

was not entitled to judicial review. See Sims, 530 U.S. at 107 (failure to exhaust

precludes judicial review); see also Califano v. Sanders, 430 U.S. 99, 108 (1977)


1
       The regulations also provide for an expedited appeal process, which permits a
claimant to file in federal court after the initial determination has been reviewed but
only (1) to contest the constitutionality of the controlling laws and (2) provided that a
claimant has no dispute with the agency’s findings of fact or application of
controlling laws. See 20 C.F.R. §§ 404.900(a)(6), 416.1400(a)(6). Gibbs’s claims do
not meet these requirements.


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(stating that § 405(g) “clearly limits judicial review to a particular type of agency

action, a ‘final decision of the Secretary made after a hearing’” (quoting § 405(g))).

Gibbs’s unsupported contention that the July 18 Notice of Hearing was a final,

reviewable decision lacks merit. Cf. Subia v. Comm’r, 264 F.3d 899, 900-02

(9th Cir. 2001) (concluding there was no exhaustion where claimant received notice

of hearing but failed to appear and ALJ did not issue a decision).

       Gibbs also complains that the magistrate judge issued the R&R before Gibbs

filed his response to the Commissioner’s motion to dismiss. In so doing, the

magistrate judge relied on one of the district court’s local rules, LCvR 1.2(c), which

provides that a “trial judge has discretion in any civil or criminal case to waive any

requirement of these local rules when the administration of justice requires.” The

magistrate judge stated that he was waiving a response to the motion to dismiss

because the court’s lack of jurisdiction was clear on the face of the complaint. Our

review of the application of a district court’s local rules is for abuse of discretion.

McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1147 (10th Cir. 2006). We see

none. The magistrate judge’s determination was correct. Moreover, in Gibbs’s

objections to the R&R, which the district court considered, Gibbs repeatedly

referenced his response, and we see nothing in the response that calls the R&R or the

district court’s disposition into question.

       Gibbs advances only one other contention that merits discussion. He

complains that the district court erred in denying as moot his alternative request for


                                              -6-
Rule 60(b) relief. But Gibbs provided no reasoned basis for Rule 60(b) relief. He

stated only that the Notice of Hearing and the ALJ’s decision had made the remand

“useless” and warranted “reopening this case [due] to . . . Rule 60(b)(3) concerns.”

R. at 101. Rule 60(b)(3) relief is available for “fraud . . . , misrepresentation, or

misconduct by an opposing party.” Gibbs made no showing of such conduct

warranting relief from the district court’s decision that it lacked subject matter

jurisdiction due to Gibbs’s failure to exhaust administrative remedies. We therefore

see no reversible error in the district court’s handling of the request for Rule 60(b)

relief.

          Affirmed.


                                                 Entered for the Court


                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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