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125 F3d 859 Putnam v. J Callahan

125 F.3d 859

Michael F. PUTNAM, Plaintiff-Appellant,
v.
John J. CALLAHAN,* Commissioner of the
Social Security Administration, Defendant-Appellee.

No. 96-36061.

United States Court of Appeals, Ninth Circuit.

Submitted September 22, 1997***
Decided Sept. 24, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the District of Alaska, No. CV-95-00447-JWS; John W. Sedwick, District Judge, Presiding

Before: HALL, BRUNETTI, and THOMAS, Circuit Judges.

1

MEMORANDUM**

2

Michael F. Putnam appeals pro se the district court's dismissal for lack of subject matter jurisdiction of his action seeking social security disability insurance and supplemental security income. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

3

We review de novo a district court's conclusion that it lacks subject matter jurisdiction. See Wilson v. A.H. Belo Corp., 87 F.3d 393, 396 (9th Cir.1996) Under the Social Security Act, judicial review is limited to "final decision[s] of the Secretary made after a hearing." 42 U.S.C. § 405(g); see also Matlock v. Sullivan, 908 F.2d 492, 493 (9th Cir.1990). An Appeals Council decision declining to consider an untimely petition for review is not a final decision made after a hearing. See Matlock, 908 F.2d at 493. Absent a final decision, the district court nevertheless has subject matter jurisdiction where there is a colorable constitutional claim. See Hove v. Sullivan, 985 F.2d 990, 991-92 (9th Cir.1993) (per curiam).

4

Here, the Appeals Council declined to consider Putnam's untimely petition for review, and Putnam failed to raise a colorable claim for deprivation of due process. Accordingly, the district court properly dismissed the action for lack of subject matter jurisdiction. See Wilson, 87 F.3d at 396.

5

AFFIRMED.

*

John J. Callahan, Acting Commissioner, Social Security Administration, is substituted for Donna Shalala pursuant to Fed. R.App. P. 43(c)(1)

**

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3