                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                               No. 00-30065


                         NELSON GUILLORY ESTATE,

                                                         Plaintiff-Appellant,

                                       v.

                            KENNETH S. APFEL,
                    COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.



          Appeal from the United States District Court for the
                      Western District of Louisiana
                          Civil Docket 99-CV-110


                             November 16, 2000

Before JOLLY, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

              The Estate of Nelson Guillory (“Guillory”) appeals from

the   district     court’s   dismissal      for   lack    of   subject-matter

jurisdiction.       Guillory   seeks    judicial    review     of   the   Social

Security Administration’s (“SSA”) determination of his disability

insurance benefits.      Guillory asserts that an Administrative Law

Judge constructively reopened a prior denial of his benefits when

the ALJ determined that the onset date of his disability was 1983.

      *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
He contends that this reopening resulted in a final decision

appropriate for judicial review.           This court finds that there was

no de facto reopening.          Without reaching the issue whether there

would be subject-matter jurisdiction if there had been a de facto

reopening, we affirm the district court’s dismissal.

                   I.   FACTS AND PROCEDURAL HISTORY

            This case comes before us after an “extraordinary and

unnecessarily tortured” past. Guillory v. Chater, No. 95-31195 (5th

Cir. June 18, 1996).         Nelson Guillory, now deceased, filed an

application for disability insurance benefits with the Social

Security Administration in November of 1985, alleging an onset date

of August, 1983.        His initial application was denied by the

Commissioner in February, 1986.            At that time, no further appeal

was taken.

            Guillory    filed    a   second    application    for    disability

insurance    benefits   on   April    30,     1990   which   was    denied   both

initially and on reconsideration.              After Guillory requested a

review of the denial, a favorable decision was rendered by an ALJ

on May 23, 1991.    The ALJ found that Guillory “met the disability

insured status requirements of the Act on August 27, 1983, the date

that claimant stated he became unable to work, and continued to

meet them through March 31, 1990.”          The ALJ decided that “based on

the application filed on April 30, 1990,” Guillory was entitled to

a “period of disability” beginning in August of 1983, and to



                                       2
“disability insurance benefits” under sections 216(i) and 223 of

the Social Security Act.          There was no reference to the 1985

application in the ALJ’s decision.

            On July 24, Guillory was notified by SSA that he was

entitled to monthly disability benefits beginning April 1989.              The

notice did not explain why the award began from 1989 and not 1983.

Rather, it stated that “[t]his action supersedes our previous

determination   and   is   in    accordance   with   the   decision   of   the

Administrative Law Judge.”        In addition, it advised Guillory that

he could ask for a reexamination of his case within sixty days of

the date he received the notice.          On August 6, 1991, Guillory, in

a   three    paragraph     letter     from    his    attorney,    requested

reconsideration “in connection with the notice,” asserting that the

determination was incorrect and that because “a de facto reopening

of his earlier application for benefits [had] occurred,” he was due

additional benefits.       The    letter stated only that Guillory was

requesting reconsideration of the notice; it made no mention of an

appeal to the ALJ’s decision.

            The delay that followed can only be attributed to SSA’s

neglect.    The agency did not respond until December, when it sent

Guillory a letter incorrectly stating that Guillory’s request was

untimely because it was not sent within sixty days of the May

decision.    As Guillory had made clear, however, he was appealing

the July 24 notice. Guillory’s attorney immediately sent a letter



                                      3
clarifying the agency’s misunderstanding. The following month, the

agency informed Guillory that it noted the error and was forwarding

his request for reconsideration to his local Social Security

office.      Guillory heard from the Appeals Council one year later in

February of 1993 at which time the council repeated the agency’s

error, finding that the request for review had not been timely

filed.    Moreover, the council acknowledged Guillory’s letter of

December 12 but found that there was no good cause to extend the

time for filing and dismissed Guillory’s request for review.               In

the   same    order,   the   Appeals   Council   addressed   the   issue   of

reopening.      However, rather than considering Guillory’s argument

that the earlier application was de facto reopened, the council

treated Guillory’s letter as a “request for reopening of the final

determination made in connection with a prior claim.” As such, the

council found that reopening was precluded because the “request”

was not timely made within four years of the prior claim filed in

November 1985.      Finally, the council once again notified Guillory

that his case was being forwarded to the local social security

office to take action on the request for reconsideration of the

July 1991 notice.

              Guillory filed a civil action in April of 1994 seeking

judicial review of the council’s order.           According to Guillory’s

complaint, he made repeated requests for information both prior to

and after the 1993 order but with limited success.            In addition,



                                       4
Guillory averred that “his November 1985 claim was reconsidered on

the merits by the administrative law judge” at the 1991 hearing and

“was reopened as a matter of administrative discretion.” In August

of 1995, the magistrate judge recommended that Guillory’s claim be

dismissed without prejudice because he had not exhausted his

administrative remedies.       The district court subsequently adopted

the recommendation of the magistrate judge and this court affirmed

in June 1996.      We noted, however, the “extraordinary nature of the

Administrator’s treatment of this case” and stated that “[w]e are

confident that the Administrator will process the plaintiff’s

claims with the speed to which he is by now surely entitled.”

            Separate from the litigation, Guillory finally received

a letter from the local social security office in January of 1995

stating that his request to reopen the prior claim was denied

because    it   was    made   over    four     years    after    the     initial

determination.      This letter did not address Guillory’s claim of a

de facto reopening. That September, the SSA issued a second notice

of reconsideration, stating that the initial determination could

not   be   reopened   under   the    rules    of   administrative      finality.

Although    this    reconsideration    did     not   address    the    de   facto

reopening argument, it stated that the ALJ had “substituted his

judgment in establishing the date of onset in the second claim” in

compliance with SSA regulations.             Moreover, it pointed out that

there was “no mention of the prior claim” in the ALJ’s decision.



                                       5
It also explained that the ALJ’s judgement was effectuated with a

date of entitlement of April 1989 because that was the twelve month

retroactivity of the 1990 claim.

          Guillory then requested another hearing before an ALJ to

review the September 21, 1995 denial.        Despite the fact that

Guillory’s attorney made the same de facto reopening argument at

the hearing, the ALJ stated that the issue to be decided was

whether the 1985 application could be reopened.       In December of

1996, the ALJ found that it could not be reopened and, again,

failed to address Guillory’s argument that it had been reopened.

          Guillory   therefore   sought   review   from   the   Appeals

Council. The Appeals Council granted review without oral argument.

In November 1998, the Appeals Council finally issued a decision

addressing the implied reopening issue. The Appeals Council denied

Guillory relief, stating that the ALJ’s 1991 decision did not

address the issue of reopening and that there was no basis for

concluding that he implicitly reopened the earlier application.

The Appeals Council also held that any reopening was barred by

administrative regulations, because Guillory’s current application

was filed on April 30, 1990, more than four years after the notice

of determination whose reopening is asserted, and thus beyond the

administrative time limits 20 C.F.R. § 404.988, § 404.989.        This

decision came seven years after Guillory first raised the issue.




                                   6
           In   the   interim,         Guillory       died   in   April   of    1997.

Guillory’s estate commenced this action in January of 1999 seeking

judicial review of the Appeals Council’s determination that there

had been no de facto reopening.               The defendant filed a motion to

dismiss   contending      that     the        court     lacked    subject      matter

jurisdiction.      In October of 1999, the magistrate judge issued a

report and recommendation concluding that, pursuant to 42 U.S.C. §

405(g) and Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977),

judicial review of “the Secretary’s denial of a motion to reopen a

claim lies only where a colorable constitutional question is at

issue.”   Id. at 985.      Because the plaintiff failed to present a

constitutional claim, the magistrate judge found that there was no

jurisdiction over the matter and recommended that the plaintiff’s

complaint be dismissed.      The district court adopted the magistrate

court’s   report    and   recommendation,         dismissing       the    complaint.

Guillory appeals.

                                 II.    ANALYSIS

           An individual may obtain judicial review in a federal

district court of “any final decision of the Commissioner of Social

Security made after a hearing to which he was a party....”                        42.

U.S.C. § 405(g).      The court may enter, “upon the pleadings and

transcript of the record, a judgment affirming, modifying, or

reversing the decision of the Commissioner....”                    Id.    Whether a




                                          7
federal court has subject matter jurisdiction depends upon what

constitutes a “final decision made after a hearing.”

             The Supreme Court and this circuit have made clear that

a denial of a request to reopen an agency determination is not a

“final    decision”     for   the   purposes    of   federal   jurisdiction.

Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977).            This court,

in Torres v. Shalala, 48 F.3d 887 (1995), applied Califano and held

that, absent a colorable constitutional question, it would not

review a Secretary’s denial of a motion to reopen a claim.2

Neither    Torres    nor   Califano   specifically    addressed    whether   a

federal court lacks subject matter jurisdiction in cases where

there has been a “de facto” reopening, since both involved denials

of reopening.       As will be seen, however, the rule of those cases

applies here.

             Guillory contends that the ALJ constructively reopened

his 1985 application and then made a final determination that

Guillory was entitled to receive retroactive benefits from 1983.

This decision, Guillory argues, constitutes a final decision for

the purposes of federal jurisdiction.

             There are three obstacles to Guillory’s position: First,

the appeals Council reviewed the ALJ decision and found not only

that no de facto reopening actually occurred, but that reopening of




     2
          Guillory raises no constitutional issue.

                                       8
any sort was barred by the time limits in the administrative

regulations.

            Second, the courts in similar cases have concluded that

where, as here, an ALJ decision in the applicant’s second case made

no mention of the first application but simply arrived at an early

onset     date   that   was   arguably      consistent    with    the   first

(administratively denied) applications, no de facto reopening had

occurred.    See King v. Charter, 90 F.3d 323, 324 (8th Cir. 1996);

Coates v. Bowen, 875 F.2d 97, 99 (7th Cir. 1988).3

            Third, as these other decisions explain, administrative

reopenings of any kind must occur within four years of the initial

decision denying coverage, subject to exceptions not relevant here.

See King, 90 F.3d at 325; Coates, 875 F.2d at 99-101.            This is true

because, as Califano and Torres have explained, the opportunity for

reopening is afforded by the regulations, and the Commissioner may

restrict the conditions of reopening.          Without such restrictions,

the administrative time limit for appeals would become meaningless.

Moreover, because administrative law judges lack authority to

deviate from the regulations’ time limits, de facto reopening must

also occur within such periods.           Coates, id.




      3
            The only slight reference to a previous decision was a statement in
the July 1991 “Notice of Award” that “[t]his action supersedes our previous
determination and is in accordance with the decision of the Administrative Law
Judge.” However, there is no other mention of the previous determination and no
indication that it had been reviewed.

                                      9
            For    these     reasons,       Guillory’s      reliance    on        Brown    v.

Sullivan, 932 F.2d 1243 (8th Cir. 1991), is misplaced.                        In Brown,

the second claim was filed within four years of the initial denial.

Moreover,    the     Eighth       Circuit    found      that   there        had     been    a

constructive reopening because both applications claimed the same

onset date and impairments.              A review of the second application

necessarily       included    a     review       of   the   merits     of     the       first

application, even though the second review made no mention of the

previous application.          Id. at 1246.           Most important, the denial

notice that the claimant received following reconsideration of his

second application explicitly referenced the previous decision. No

similar reference was made in the instant case.

                                  III.   CONCLUSION

            The     district       court’s       dismissal     was   based         on     its

understanding that Guillory was seeking judicial review of the

agency’s denial of a motion to reopen a claim.                         Although that

approach     mischaracterized         Guillory’s        position,      the        relevant

authorities nevertheless compel the conclusion that the court

lacked jurisdiction over the issue of an out-of-time, de facto

reopening.    We therefore affirm the dismissal on other grounds.

            AFFIRMED.




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