Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

Gertrude FUSCO, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee.

No. 90-15650.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1991.Decided June 5, 1991.

Before GOODWIN, SKOPIL and CANBY, Circuit Judges.


In 1986, Gertrude Fusco filed an initial application for disability benefits under Title II of the Social Security Act, alleging disability since September 1984. Her claim was denied, and Fusco did not pursue it further. In 1988, Fusco filed a second application for disability benefits, alleging disability from the same period alleged in her prior application. That claim was also denied, and an administrative law judge dismissed her request for a hearing on the basis of res judicata.

Fusco next requested review by the Social Security Administration Appeals Council and submitted a 1989 report from her treating physician. The Appeals Council concluded that the report did not change the material facts and thus did not warrant reopening the 1986 determination. This action represented the final decision of the Secretary of Health and Human Services.

Fusco then filed an action in federal district court appealing the Secretary's decision. The district court dismissed for lack of subject matter jurisdiction, and we now affirm.

Judicial review of unfavorable administrative decisions on claims arising under Title II of the Social Security Act is provided by 42 U.S.C. § 405(g) (1988), which permits judicial review of final decisions of the Secretary. Under Califano v. Sanders, 430 U.S. 99 (1977), a decision not to reopen is not the type of "final decision" for which section 405(g) grants review. Therefore, federal courts have no jurisdiction to review the Secretary's refusal to reopen a case, unless the refusal to reopen is challenged on constitutional grounds. Id. at 107-09. This court has held that in most cases, Sanders also bars federal courts from reviewing administrative determinations that a claim is res judicata. See Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985) ("District courts, therefore, have no jurisdiction to review a refusal to re-open a claim for disability benefits or a determination that such a claim is res judicata."), cert. denied, 475 U.S. 1025 (1986).

Fusco argues that the Secretary's decision not to grant an administrative hearing to consider the merits of her second disability claim resulted in an arbitrary deprivation of property in violation of the due process clause. But "a petition to reopen a prior final decision may be denied without a hearing...." Sanders, 430 U.S. at 108, citing 42 U.S.C. § 405(b). Thus, there is no denial of due process in the Secretary's failure to grant a hearing on the merits of Fusco's second application, where a final decision had been rendered on her first application.

Fusco has presented other arguments, but they raise no substantial constitutional challenge to the Secretary's application of res judicata or his refusal to reopen her case.

Fusco further argues that the Secretary had a duty to reopen her case, and that the mandamus statute, 28 U.S.C. § 1361 (1988), therefore provides an alternate ground for jurisdiction. However, the Secretary followed the Social Security regulations in determining that Fusco had not presented new and material evidence. Thus, he had no duty to reopen her case, and no basis exists for the district court to exercise mandamus jurisdiction.

The district court properly dismissed Fusco's action for lack of subject matter jurisdiction.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3