UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

TERRY L. GIBBS, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, * Defendant-Appellee. No. 13-6044 (D.C. No. 5:12-CV-01030-M) (W.D. Okla.)

ORDER AND JUDGMENT **

Before TYMKOVICH , ANDERSON , and MATHESON , Circuit Judges.
Terry L. Gibbs, pro se, appeals from the district court’s dismissal of his action for lack of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* In accordance with Rule 43( c)(2) of the Federal Rules of Appellate Procedure, Carolyn W. Colvin is substituted for Michae l J. Astrue as the defendant-appellee in this action.

** After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 18, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Gibbs has sought Social Se curity benefits since 1991. See Gibbs v. Astrue , 449 F. App’x 744, 744-45 (10th Cir. 2011) (s etting out history of Gibbs’s pursuit of benefits). In the most recent round of litig ation, the district court remanded his case to the agency for further pr oceedings pursuant to sentence four of 42 U.S.C. § 405(g). Gibbs appealed, and we affirmed. See id. at 744. Among other things, we rejected Gibbs’s argument that a fully favorable decision he recei ved in 1996 was conclusive evidence that he was di sabled prior to 2004. Id. at 745-46. We observed that the decision Gibbs relied on was in reality a one -page administrative fo rm that stated his “‘case is being cleared base d on [the Commissioner’s] Disability Initiatives’” and indicated a “‘[f]ully favorable medical/vocational decision.’” Id. at 745-46. We determined that the district court was not required to give preclusive effect to that 1996 form because Gibbs was collaterally es topped from asserting he was disabled in 1996 by virtue of a 1997 administrative la w judge (ALJ) determination (upheld by a district court and this c ourt) that Gibbs was not di sabled from 1992 to 1997. Id.
at 746. On remand after that appeal , the agency issued a Noti ce of Hearing on July 18, 2012, for an October 10 hearing before an ALJ. In a letter dated July 19, Gibbs responded to the Notice of Hearing by ques tioning whether the proper issue had been scheduled for hearing. He apparently rema ined of the opinion that the effect of the 1996 administrative form was an issue for the ALJ to consider at the hearing.- 3 - Next, Gibbs filed a compla int in the district cour t on September 14, 2012, contesting the Notice of Hearing. He alleged that the remanded proceeding was without an assigned ALJ and that the defendant Commissioner denied him due process of law. He furthe r asserted that the Commissi oner was obligated to provide him with a hearing on the propriety of the 1996 administrative form . He claimed that this obligation satisfied his requirement to exhaust administrativ e remedies prior to filing his complaint, and he concluded that the Commissioner was “estopped and the July 18th, 2012 administrative proceeding is dissolved” by virtue of the obligation to afford him a hearing regardi ng the 1996 form. R. at 8. On November 20, the Commissioner filed a motion to dismiss, asserting that the ALJ held a hearing on October 10 but Gibbs did not appear. The Commissioner asked the district court to di smiss the case for lack of s ubject matter jurisdiction due to Gibbs’s failure to exhaust administrativ e remedies. A magist rate judge issued a Report and Recommendation (R&R), recomme nding that the district court grant the Commissioner’s motion and dismiss the acti on without prejudice for lack of subject matter jurisdiction. The magistrate judge conclude d that there was no final appealable decision because Gibbs had not exhausted his administrative remedies. The magistrate judge further determined that Gibbs failed to establish an exception to the exhaustion requirement for constitutiona l claims and that he was estopped from asserting disability based on the 1996 form under this court’s decision in Gibbs , 449 F. App’x 744. Gibbs filed a response to the mo tion to dismiss after the- 4 - magistrate judge issued the R&R, and he also filed objections to the R&R. The district court overruled the objections, a dopted the R&R, and dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(1). On January 15, 2013, Gibbs filed a moti on for an extension of time to file a notice of appeal, claiming the Commissioner had engaged in delay or inaction regarding the remanded proceedings and had “not acknowle dge[d] any pending administrative proceeding.” R. at 74. In a court-ordered res ponse, the Commissioner argued, inter alia , that the motion should be denied because the AL J had issued a partially favorable ALJ decision on Gibbs’ s benefits applica tions on January 25, 2013, and that decision rendered Gibbs’s ar guments moot. But the district court rejected that argument and granted Gibbs ’s motion for an extension of time, observing that the ALJ’s decision was only pa rtially favorable. The next day, Gibbs filed a motion that primarily sought leave to submit a reply in s upport of his motion for an extension of time to appeal. In the alte rnative, Gibbs reques ted that the court reopen the case under Federal Rule of Civil Procedure 60(b). The court denied the motion as moot based on its prior grant of Gibbs’s motion for ex tension of time. This appeal followed. II. Discussion “We review the district c ourt’s dismissal for lack of subject matter jurisdiction de novo.” Green v. Napolitano , 627 F.3d 1341, 1344 (10t h Cir. 2010). Because- 5 - Gibbs appears pro se, we afford his filings a liberal constr uction, but we do not act as his advocate. See Yang v. Archuleta , 525 F.3d 925, 927 n. 1 (10th Cir. 2008). Under the Social Security Act, federa l district courts have jurisdiction to review “any final decision of the Commissioner of Soci al Security made after a hearing.” 42 U.S.C. § 405(g) (emphasis added). “But th e Act does not define ‘final decision,’ instead leaving it to the [Social Security Admini stration] to give meaning to that term through regulations.” Sims v. Apfel , 530 U.S. 103, 106 (2000). The pertinent regulations, 20 C.F. R. §§ 404.900(a) and 416.14 00(a), describe a four-step review process leading to a final d ecision: (1) initial determination, (2) reconsideration, (3) a hearing before an ALJ, and (4) a request for review by the Appeals Council. A final decision exists only after a claimant has completed these four steps. Id. §§ 404.900(a)(5), 416.1400(a)(5). 1
It is clear that at the time Gibbs filed his complain t, he had not completed steps three and four after the senten ce-four remand, so there was no final administrative decision. Hen ce, he failed to exhaust hi s administrative remedies and was not entitled to judicial review. See Sims , 530 U.S. at 107 (failure to exhaust precludes judicial review); see also Califano v. Sanders , 430 U.S. 99, 108 (1977)

1 The regulations also provide for an e xpedited appeal process, which permits a claimant to file in federal court after the initial determin ation has been reviewed but only (1) to contest the constitutionality of th e controlling laws and (2) provided that a claimant has no dispute with the agency’s findings of fact or application of controlling laws. See 20 C.F.R. §§ 404.900(a)(6), 416. 1400(a)(6). Gi bbs’s claims do not meet these requirements.- 6 - (stating that § 405(g) “clearly li mits judicial review to a particular type of agency action, a ‘final decision of the Secretary made after a h earing’” (quoting § 405(g))). Gibbs’s unsupported contenti on that the July 18 Notice of Hearing was a final, reviewable decisi on lacks merit. Cf. Subia v. Comm’r , 264 F.3d 899, 900-02 (9th Cir. 2001) (concluding there was no e xhaustion where claima nt received notice of hearing but failed to appear and ALJ did not issue a decision). Gibbs also complains that the magistra te judge issued the R&R before Gibbs filed his response to the Commissioner’s mo tion to dismiss. In so doing, the magistrate judge relied on one of the district court’s local rules, LCvR 1.2(c), which provides that a “trial judge has discretion in any civil or criminal case to waive any requirement of these local ru les when the administration of justice requires.” The magistrate judge stated that he was wa iving a response to the motion to dismiss because the court’s lack of jurisdiction was clear on the face of the complaint. Our review of the application of a district cour t’s local rules is for abuse of discretion. McInnis v. Fairfield Cmtys., Inc. , 458 F.3d 1129, 1147 (10t h Cir. 2006). We see none. The magistrate judge’s determina tion was correct. Mo reover, in Gibbs’s objections to the R&R, which the distri ct court considered, Gibbs repeatedly referenced his response, and we see nothing in the response that calls the R&R or the district court’s dispos ition into question. Gibbs advances only one other conten tion that merits discussion. He complains that the district c ourt erred in denying as moot his alternative request for- 7 - Rule 60(b) relief. But Gibbs provided no reasoned basis for Rule 60(b) relief. He stated only that the Notice of Hearing a nd the ALJ’s decision had made the remand “useless” and warranted “reopening this case [due] to . . . Rule 60(b)(3) concerns.” R. at 101. Rule 60(b)(3) relief is availa ble for “fraud . . . , mi srepresentation, or misconduct by an opposing party.” Gibbs made no showing of such conduct warranting relief from the di strict court’s decision that it lacked subject matter jurisdiction due to Gibbs’s failure to exha ust administrative reme dies. We therefore see no reversible error in th e district court’s handling of the request for Rule 60(b) relief. Affirmed.

Entered for the Court
Timothy M. Tymkovich Circuit Judge