Michael F. Putnam, Plaintiff-appellant, v. John J. Callahan,* Commissioner of Thesocial Security Administration, Defendant-appellee, 125 F.3d 859 (9th Cir. 1997)

MEMORANDUM^** 

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.

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).

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.

AFFIRMED.