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

Shirley A. Chater, former Commissioner of Social Security, 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 Hart, Assistant United States

Attorney; Arthur J. Fried, General Counsel, Social Security Administration;

Charlotte J. Hardnett, Principal Deputy General Counsel; John M. Sacchetti,

Associate General Counsel, Litigation Division; Etzion Brand, Acting Chief,

Retirement, Survivors and Supplemental Assistance Litigation Branch, Office of
** Honorable Wesley E. Brown, Senior District Judge, United States

District Court for the District of Kansas, sitting by designation.

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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 insurance benefits on June 6,

1991, claiming disability since June 15, 1957. The application was denied

initially and upon reconsideration, and plaintiff requested a hearing before an

Administrative Law Judge (ALJ). The ALJ found that plaintiff was entitled to

disability benefits beginning on December 31, 1962. The Appeals Council

reopened the case on July 20, 1993, and remanded the case to the ALJ for further

proceedings.

On January 27, 1994, the ALJ issued a decision that plaintiff was not

entitled to disability benefits because he did not meet the disability insured status

requirements. Plaintiff was notified that, if he wished 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 requiring that review
1 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially 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 argument.

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by Appeals Council must be requested within sixty days of notification of hearing

decision). Plaintiff petitioned the Appeals Council to review the ALJ’s decision

on June 19, 1996, well beyond sixty days from notification of the ALJ decision. 

Predictably, the Appeals Council dismissed the appeal 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 plaintiff’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 disposition, dismissed the

action with prejudice. Plaintiff appeals from the district court’s dismissal. 1

The district court was correct to dismiss the action. Because plaintiff failed

to make a timely request for review of the ALJ’s decision 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 for review by the Appeals Council,
2 We disagree with the Eleventh Circuit’s holding in Bloodsworth , and

we specifically decline to adopt that court’s reasoning on this issue. That court

grounded much of its analysis in its opinion that the administrative regulations do

not distinguish between dismissals of untimely requests 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, distinguish between a dismissal

of an untimely request and the denial or merits determination 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...)

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both of which constitute final decisions and can be reviewed by the federal

district court. See id. § 404.981. Our sole jurisdictional basis in social security

cases arises from 42 U.S.C. § 405(g), which provides 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 review of the ALJ’s decision in a

timely manner, the Appeals Council dismissed his request for review as untimely,

and, consequently, there is no “final decision” for us 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). 2 Like the
2

(...continued)

F.2d at 494.

3 We acknowledge that there may be limited circumstances where an

Appeals Council dismissal of an untimely request for 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 exist in this case.

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Bacon court, we join the majority of circuit courts in holding that we have no

jurisdiction to review a decision when the Appeals Council has dismissed an

untimely request for review, because there is no final 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 appeal is DISMISSED for lack of

jurisdiction.