* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

Shirley A. Chater, former Commissioner of Social Se curity, as the defendant in this action. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 11 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LUIS BRANDTNER,

Plaintiff-Appellant,

v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Kenneth S. Apfel, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-2392

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR 96-1721 LH/DJS)

Submitted on the briefs: Luis Brandtner, Pro se. John J. Kelly, United States Attorney; Joan Marie H art, Assistant United States Attorney; Arthur J. Fried, General Counsel, Social Security Administration; Charlotte J. Hardnett, Principal Deputy General Cou nsel; John M. Sacchetti, Associate General Counsel, Litigation Division; Etz ion Brand, Acting Chief, Retirement, Survivors and Supplemental Assistance L itigation Branch, Office of** Honorable Wesley E. Brown, Senior District Judge, United States

District Court for the District of Kansas, sitting by designation. -2- the General Counsel, Social Security Administration , Baltimore, Maryland, for Defendant-Appellee.

Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District Judge.

TACHA , Circuit Judge.

Plaintiff filed an application for disability insur ance benefits on June 6, 1991, claiming disability since June 15, 1957. The application was denied initially and upon reconsideration, and plaintiff r equested a hearing before an Administrative Law Judge (ALJ). The ALJ found thatplaintiff was entitled to disability benefits beginning on December 31, 1962. The Appeals Council reopened the case on July 20, 1993, and remanded th e case to the ALJ for further proceedings. On January 27, 1994, the ALJ issued a decision thatplaintiff was not entitled to disability benefits because he did not meet the disability insured status requirements. Plaintiff was notified that, if he w ished to appeal the ALJ’s decision, he must do so within sixty days from the date he received notice of the decision. See 20 C.F.R. §§ 404.968(a)(1), 404.971 (together requ iring that review1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument. -3- by Appeals Council must be requested within sixty d ays of notification of hearing decision). Plaintiff petitioned the Appeals Counci l to review the ALJ’s decision on June 19, 1996, well beyond sixty days from notif ication of the ALJ decision. Predictably, the Appeals Council dismissed the appe al because it was untimely. Plaintiff filed suit in the United States District Court for the District of New Mexico, seeking review of the denial of benefits. The magistrate judge recommended that the case be dismissed for lack of jurisdiction because there was no final decision of the Secretary as a result of p laintiff’s failure to request review by the Appeals Council in a timely manner. The district court, in adopting the magistrate judge’s analysis and recommended dis position, dismissed the action with prejudice. Plaintiff appeals from the district court’s dismissal. 1 The district court was correct to dismiss the actio n. Because plaintiff failed to make a timely request for review of the ALJ’s de cision denying benefits to the Appeals Council, the ALJ’s decision binds plaintiff. See id. § 404.955(a). The Appeals Council’s dismissal of plaintiff’s request for review is binding and not subject to further review. See id. § 404.972. The dismissal as untimely is not a decision on the merits or a denial of a request forreview by the Appeals Council,2 We disagree with the Eleventh Circuit’s holding in Bloodsworth , and

we specifically decline to adopt that court’s reaso ning on this issue. That court grounded much of its analysis in its opinion that the administrative regulations do not distinguish between dismissals of untimely requ ests for review and decisions on the merits of a request for review. We disagree . For purposes of judicial review, the regulations do not distinguish between a denial of a request for review and a decision on the merits. They do, however, di stinguish between a dismissal of an untimely request and the denial or merits det ermination of the request, specifically providing that a dismissal is binding and not subject to further review, but that a denial or decision is judicially reviewable. See Matlock , 908 (continued...) -4- both of which constitute final decisions and can be reviewed by the federal district court. See id. § 404.981. Our sole jurisdictional basis in socia l security cases arises from 42 U.S.C. § 405(g), which provide s for judicial review of final decisions of the Secretary. See Reed v. Heckler , 756 F.2d 779, 782 (10th Cir. 1985). Plaintiff did not request administrative re view of the ALJ’s decision in a timely manner, the Appeals Council dismissed his re quest for review as untimely, and, consequently, there is no “final decision” forus to review. With one exception, every circuit court that has addressed this question has reached this same result. See Bacon v. Sullivan , 969 F.2d 1517, 1520-21 (3d Cir. 1992) (collecting cases); Matlock v. Sullivan , 908 F.2d 492, 493 (9th Cir. 1990); Harper ex rel. Harper v. Bowen , 813 F.2d 737, 739-43 (5th Cir. 1987); Adams v. Heckler , 799 F.2d 131, 133 (4th Cir. 1986); Smith v. Heckler , 761 F.2d 516, 518-19 (8th Cir. 1985); Dietsch v. Schweiker , 700 F.2d 865, 867 (2d Cir. 1983); but see Bloodsworth v. Heckler , 703 F.2d 1233, 1236-39 (11th Cir. 1983). 2Like the2 (...continued)

F.2d at 494.

3 We acknowledge that there may be limited circumstan ces where an Appeals Council dismissal of an untimely request fo r review may be a “final” decision of the Secretary, such as when a plaintiff raises a constitutional claim of a due process violation. See Bacon , 969 F.2d at 1521-22. We do not reach the question, however, because no such circumstances ex ist in this case. -5- Bacon court, we join the majority of circuit courts in h olding that we have no jurisdiction to review a decision when the Appeals Council has dismissed an untimely request for review, because there is no fi nal decision of the Secretary as required under 42 U.S.C. § 405(g). 3 The district court was correct in dismissing the action for that reason. Accordingly, the appea l is DISMISSED for lack of jurisdiction.