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830 F2d 67 Ingram v. Secretary of Health and Human Services

830 F.2d 67

19 Soc.Sec.Rep.Ser. 103, Unempl.Ins.Rep. CCH 17,591
Delmar INGRAM, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-1705.

United States Court of Appeals,
Sixth Circuit.

Argued May 19,1987.
July 14, 1987.

Edgar Jerome Dew (argued), Goodman, Eden, Millender and Bedrosian, Detroit, Mich., for plaintiff-appellant.

Pam Thompson, Asst. U.S. Atty., Detroit, Mich., Blanca Bianchi de la Torre (argued), Asst. Regional Counsel, Chicago, Ill., for defendant-appellee.

Before KEITH and NORRIS, Circuit Judges; and PECK, Senior Circuit Judge.

PER CURIAM.

1

Plaintiff appeals from an order of the district court granting summary judgment to the Secretary. The order had the effect of upholding a decision of the Secretary denying plaintiff's request to re-open an earlier application, in order to extend the period over which benefits awarded him on his later application would be given retroactive effect.

2

The Supreme Court has noted that federal courts are without jurisdiction to review a decision of the Secretary refusing to re-open previously adjudicated claims, at least in the absence of a constitutional challenge. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Simply couching in constitutional language what is in reality an argument, that the Secretary abused his discretion in refusing to re-open a claim, does not convert the argument into a colorable constitutional challenge. Gosnell v. Secretary, 703 F.2d 216 (6th Cir.1983).

3

Because we conclude that the Secretary did refuse to re-open the previous application, and that plaintiff has failed to raise a colorable constitutional challenge, the Secretary's decision is not reviewable.

4

In addition, plaintiff is precluded from raising here, for the first time, his argument that he is raising a colorable constitutional challenge.

5

Accordingly, the order of the district court is affimed.