FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT FEBRUARY 7, 2003 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-14177 Non-Argument Calendar

________________________ D.C. Docket No. 01-00435-CV-3-RV-MD LINDA CASH, Plaintiff-Appel lant,
versus JO ANNE B. BARNHART, Commissi oner of

Social Securit y, Defendant-Appellee.

__________________________ Appeal from t

he United States D

istrict Court for t

he Northern Distric

t of Florida

_________________________ (February 7, 200

3)
Before ANDE

RSON, BLAC

K and HULL, Circuit Judges. PER CURIAM:2

Linda Cash appeals the dist

rict court’s ord

er dismissing her

petition for a wri

t of mandamus against the Commissioner of Social Security. Cash requested that the district court order the adm inistrative law j udge (“ALJ”) to conduct a hearing

on her second application for soci

al security

benefits, which t

he ALJ dismissed

as barred by
res judicata. The

ALJ also denied Cash’ s implied reque st to reopen her fir st appl icati on for benef

its. A fter r eview , we aff

irm. I. BACKGROUND A. Cash’s Fir

st Application for D

isability Benef

its In 1996, Cash filed an a

pplication

for disability be

nefits, alleging her disabili ty began on June 1, 1988. This application

was denied initiall

y and on reconsideration. It is undisputed that Cash had a right to a hearing before an ALJ on her firs t applicati on , if she timely requested one. T

he problem for

Cash is that she did not request a hearing be

fore an ALJ or a

ppeal the determ

ination of her first applicat

ion in any way. B. Cash’s Second Application for D isability Benef

its In 1999, Cash

filed a second application for disability benefits, again alleging her disability began o

n June 1, 1988. The a

gency staff at

the regi onal level den ied1 The initial denial letter from the agency staff stated that, “[b]ased on a review of y

our health problems you do not qua

lify for be nefits on this claim

. This is because you are not disabled under our rules.” The letter further explained that, after examining medical records from Pensacola Naval Hospital, Milwaukee Medical Clinic, and Sacred Heart Hospital, the Regional Commissioner had determined that Ca

shwas not disabled at the time she last met the earnings requirement for social security benefits on March 31, 1995.

There is no refe

rence to Cash’s f

irst claim in the letter denying her second application.

2 The r econsid eration letter explained that the agency had examined the response of Dr
. Lawrence L. Prokop, received

on November 30, 1999, and a repor t from Pensacola N

aval Hospital, dated June 3, 1999, in addition to the medical records identified in the initial denial of benefits. The Regional Commissionerthen reiterated its determination tha

t Cash was not disabl

ed then on any

date through March

31, 1995, when she was last insured for disability benefits. There is also no referenc e to Cash’s first claim in the reconsideration denial of her second application. 3 Cash’s second application. 1 Cash requested re consideration, and t

hat request a

ls o
was denied in an ag ency l etter stating, “You asked us to take another look at y our Social Se curity disability case. Someone who did not make the first decision reviewed your case, inc

lu ding an y n ew facts we re ceived. After reviewing all the information

carefully, we found that our fi rst decision [on

the second application] was correct.” 2 Cash then requested a hearing b efore an ALJ as to her secon d application. The ALJ c onducted a hearing on w hether Cash’s cl

aim should be reo

pened but

not a n evidentiary

hearin g on the merits of her claim. The

ALJ dismissed

Cash’s hearing request on the basis of

res judicata because he found that Cash’s “

current request f

or hearing involves the rights of the sa me clai mant on the sa me fact s and o n the s ame issues which were deci

ded in the final and bin

ding determin

ation . . . made on th

e4

[first] application.” Th

roughout this case in the

district court and

on appeal, there has been no dispute over the AL J’s finding that Ca

sh’s second applica

tion involved the same facts a

nd issues as her firs

t application. Apparently

in light of Cash’s res jud icata problem, the ALJ also co nstrued Cash’s request for

a hearing on her second application as an implied request to reopen her first application

for benefits. T

he ALJ then found

that there was no good cause to reopen Cash’s fi

rst application, pur

suant to 20 C.F.R.§§ 40 4.987-404 .989, because (1) no new and material evidence had been submitted w

ith Cash’s second

application and (2) the denial of Ca

sh’s first applic ation was not based on a clerical error or an error on the face of the ev idence. The Appeals Coun cil denied review. C. Cash’s Peti

tion for Mandam

us Cash then filed thi s petition for writ of mandamus, which sought an order requiring the ALJ to hold an ev identi ary hearing

on the merits of

her second application. The Comm

issioner moved to

dismissCash’s “complaint,” arguing that there had been no “fin

al decision” by t

he Commiss

ioner and th

us th e district court lackedsubject matter jurisdictio n under both 42 U.S.C. § 4 05(g) and 28 U.S.C. § 1361. A magistrate j udge recomm ended that Cash’s “action” be dis missed. Ove

r Cash’s objections, the di strict court a dopt ed the recommendation and dismissed Cash’s “action” for lack of subject matter jur isdiction under § 405(g) . Neither the3 Although Cash styled h er complaint as a

mandamus petition, Cash did complete and file a “civil cover sheet” expressly stating she was filing her ac tion pursuant to “42 U.S.C. § 405(g).”
4 The decision of the district court as to its subject matter jurisdiction is a question of law that we review de novo
. See, e.g. , Sherrod v. Chater , 74 F.3d 243, 245 (11th Cir. 1996).

5 Section 405(g) s

tates in relevan

t part: Any individual, after any final decision of the Commissionerof Social Security made after a hearing to which he was a party, irr e spe cti ve o f th e am oun t in con tro vers y, may obtain a review of

suchdeci sio n by a civ il a cti on c omm ence d wi thi n si xty d ays after the mailing to

him of notice of such decision or within such further time as the Commissioner of Social Security may allow. 42 U.S.C. § 405(g). 5 magistrate

judge nor the distri

ct court discussed m

andamus jurisdiction under 28 U.S.C. § 1361. 3 II. DISCUSSION In the district court and on appeal, the parties focus on 42 U.S.C. § 405(g) as the basis for jurisdicti on. Thus, we first d iscuss 42 U.S.C. § 405(g) and then mandamus j urisdiction under 28 U .S.C. § 1361. 4 A. Limited Jurisdiction Under § 405(g) The district court’s

jurisdiction is limited by the Social Sec urity Act, and judicial review exists only over “final de

cision of the Com

missioner of

Socia l Secu ri ty.” 42 U.S.C. § 405(g) (2002). 5 The Social Se curity Adminis tration’s regulationsprovide that the Commissioner

may dism

iss a hearing reques

t and decline to issue a “final

decision” if the doct

rine of res judic ata

applies in t

hat the Commissioner

has made a

previous decision about the claimant’s right s on t he same6 Section405(b) of Title 42 mandates an evidentiary hearing bef o re anadministrative law judge on an original application for benefits if one is timely requested by the cla imant. See 42 U.S.C. § 405(b); see also

20 C.F.R. §§ 404.929, 404.930. H owever, an AL

J may dismiss a r

equest for a hearing, inter alia , on res judicata grounds. 20 C.F.R. § 404.957(c)(1).

7 See also 20 C.F.R. § 404.900(a)(5) (defining a final decision for purposes of judicial review as an initial determination that has been pursued through all four steps in the administrative review process); 20 C.F.R. § 404.903(l) (excluding a denialof a request to reopen a determination from the definition of final determinations, which are subject to judicial review). 6 facts and the same iss

ues and this previous d

et ermination has become final.20 C.F.R. § 404.957(c)(1). 6 Cash does not disp ute that th e two applications in volve essentially

the same onset d

ate and same facts and issues. I nstead, Cash prim

arily contends that, in considering her hearing reques

t onher second applicat

ion, the ALJ
was estopped from applying res judicata because her first appl ication had been de facto reopened. As ageneral matte

r, district courts

do not have ju risdicti on over th e Secretary’s refusal to reopen a claim , since su ch a refusal is not a “ final decision” wit

hin the meaning of § 405(g). Califano v. Sanders , 430 U.S. 99, 1 07-09 (19 77). Instead, a decision refusing toreopen an earlier applicat ion ordinarily is considered an inter im decision not reviewable under § 405(g). See, e.g. , Loudermilk v. Barnhart , 290 F.3d 1265, 1268 (11th Cir. 2002); Sherrod v. Chater , 74 F.3d 243, 245 (11th Cir. 1996). 7 Nonethele ss, we hav e recognized an exception to this rule. Subject matter jurisdiction

exists in tho se cases where a final de cision on a prior “ social security7

claim is in fact reopened

and reconsidered on the merits to a ny extent on the administrative

level.” Sherrod , 74 F.3d at 245. Although the ALJ denied her impl icit request to reopen, Cash argues that a de facto reopening of her first claim

occurred. Thus, our task is to determine whether there was a de facto reopening of Cash’s first application resulting in a new final decision to support jurisdiction under § 405(g). In this case, it is undi sputed that the ALJ did not consi der the merits of Cash’s second application. Instea d, the ALJ did two th ings. The ALJ looked at Cash’s second application and herprior claim onl y to the extent required to determine if they involved the same clai

ms, facts and issues and determ

ined res judicata

applied. After doing so, the ALJ concluded Cash’s second applica ti on was barred by res judicata. Secondly, the ALJ construed the s econd application as a motion to re

open the final decision on her first applicat ion a nd expressly deni ed the motion to r

eopen. The Appeals Council th en denied review. In prior decisions, thi s Court has held that no reopening

of a prior application
occurs and no jurisdiction e xists under § 405(g)to support judicia l review of the ALJ and the Appeal Council’ s decision in the se circumstances. See, e.g. , Brown v. Sullivan , 921 F.2d 1233, 1237 (11th Cir. 1991) (stating that, in determining whether
res judicata applies,

“if the [Com

miss i oner] merely considers newly proff ered evidence without

reconsidering the m

erits of the previously denied application, then8

he has not reopened that

application”); Cherry v. Heckler , 760 F.2d 1186, 1189 (11th Cir. 1985) (noting that the Commissioner “must in fa

irness look

far enough into the proffered factual and legal s

upport [for the fir

stapplication] to

determine wh

ether it is the same clai

m, and if so, whether it should neve rtheless be r eopened as a discretionary matter” (quotation marks omitted))
. In contrast, when our precedent has concluded thata reopening occurr

ed, the
case involved an actual re opening of

a prior claim

by either the A

LJ or the Appeals Council. See, e.g. , Wolfe v. Ch ater , 86 F.3d 1072 (11th Ci r. 1996) (reopenin

g occurred whenALJ, considering third application for benefits, reexamined merits of determination

on first and second ap

plication concerning

claim ant’s educational level); Macon v. Sullivan , 929 F.2d 1524 (11th Cir. 1991)

(reopening occurred when Appeals Council reexamined merits of determinat

ion on claimants’ first application concerning their

status as surviving children af ter ALJ denied re

quest for a hearing on basis of res judicata). We recognize that Cash argues that, prior to the ALJ’s acti

on in this case, the letters from the regional level of the Social Security Administration indicated that the agency staff had examined and denied her second applicat

ion on the merits

initially and then on reconsideration.Thus, Cash contends there was a de facto reopening of her first a pplica tion b y the agen cy staff. O ur prior above decis

ions did not detail8 We have recognized a second exception to the general rule that courts do not have subject matter jurisdiction to rev

iew the Commissio

ner’s refusal to reopen a claim. We have found that subject matter jurisdiction exists wh

en the claimant ra

ises a colorable

constitutional issue. Sherrod , 74 F.3d at 245. Cash con tends that she raises a colorable constitutional claim because she argues that her due proc ess rights w ere violated when the ALJ denied her an evidentiary hearing on the merits of her second application. Howev er, her due process arg ument hinges on a

finding that a reopening occurred, thus entitling her to a hearing under 20 C.F.R. § 404.992(b). As we explain, no reopening occurred in Cash’s case. Therefore, Cash has not asserted a col orable co nstitutional claim.
9 Other circuits have expressly rejected the argument that a reopening of a prior final decision can occur at

a lower level of staff agency re view and estop the ALJ and in turn the Commissioner fromasserting res judicata and refusing to consider a second application. See Johnson v. Sullivan , 936 F.2d 974 (7th Cir. 1 991); Morris v. Sullivan , 897 F.2d 553 (D.C. Cir. 1990). At a glance, one 9 exactly what had happened a

t the staff level b efore the ALJ determined that res judicata barred a claimant’s second applicat i on. However, w

e conclude that those d ecisions are sufficiently similar to contr

ol this case. In add

ition, the di strict cour

t has jurisdiction to review only the Commissioner’s final decision, and thus

we must look to what the ALJ a

nd the Appeals Counci

l did to determine if a

reopening occurred and not to the initial interim decisions at the lower agency levels. Further, the ALJ’s res judicata analysis and review did not constitute a de facto reopening

of Cash’s first application
. More important ly in this cas e, the ALJ als o constru ed Cash’s second application as a m

otion to reopen her first claim

and expressly

denied Cas h’s motion. Given the particular facts in this case, we conclude there was no actual or de facto r eopening of the final decisio n on the first applica

tion to serve as a basis for jurisdiction

under § 405(g). 8 Rat her, the ALJ’ s refusal to reopen was an interim decision, not a final decision, and does not support jurisdiction under § 405(g). 9circuit

decision appear

s to differ, but the facts there are materially differ ent. See Cle ato n v. Sec ’y, Dep’t of Health & Human Servs. , 815 F.2d 295 (4th Cir. 1987) (not involving a second application at all b ut addressing the agency and the AL J examining only the first application a second time). Moreover, the Fourth

Circuit appears to have receded somewhat from its earlier approach. See Hall v. Chater , 52 F.3d 518, 520-21 (4th Cir. 1995).

10 Section 1361 states

in full: The district courts shall ha ve original jurisdiction of any action in the nature of mandamus to compel an offic er or emplo

yee of t he United States or any agency thereof to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. 10 B. Jurisdiction Und

er § 1361 Under 28 U.S.C. § 1361, otherwise known as The Mandamus A ct, the district courthas original jurisdiction over a m andamus action “to com pel an officer or employee of the United St ates o r any agency thereof to perfor

m a duty owe

d to the plaintiff.” 28 U.S.C. § 1361
. 10 “[M]andamus is an extraordinary reme dy which should be utiliz ed only in the clearest and most compelling of cases.” Carter v. Seamans , 411 F.2d 767, 773 (5t h Cir. 1969). Alth

ough the issuance of a

writ of mandamus

is “a legal remedy,

it is largely co

ntrolled by equita

ble principles and its issuance is a matter of judicial discretion.” Id. “The test for jurisdiction is

whether mand

amus would be an

appropriate m

eans of relief.” Jones v. Alexander , 609 F.2d 778, 781 (5th Cir. 1980). Mandamus relief is only appropriate

when: (1) the plaintiff ha s a clear right to th

e relief requeste

d; (2) the defendant has a cle ar duty to act; a

nd (3) “no oth

er a dequate remed

y [is] available.” Id. Put an othe r way, a w rit of mandamu s “is i ntended to provide a11

remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defen dant owes h im a clear no ndiscretionary duty.” Heckler v. Ringer , 466 U.S. 602, 616 (1984). “ In resolving whethe

r section 136 1 jurisdiction is pre sent, allegationsof the complain t, unless patently

frivolous, are tak en as true to avoid tackling the merits under the ruse of assessing jurisdiction.” Jones , 609 F.2d at 781. Here, Cash argues that,

under 42 U.S.C. § 405(b ), she was entitle

d to, and the ALJ had a clear duty

to provide her with,

a hearing on her second application for benefits because her first

application for bene

fits had been de facto reopened. Given that no de facto reopening of Cash’s first

application occurr

ed, we conclude th

at the ALJ had no clea rduty to provide Ca sh with a hearing on he

r second application. Thus, the district

court also lacked j urisdiction over Cas h’s action under § 1 361. AFFIRMED.