IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31092

Summary Calendar 

DIANNE WEEKS, 

 Plaintiff - Appellant 

v. 

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Western District of Louisiana 

USDC No. 6:15-CV-2653

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. 

PER CURIAM:*

Plaintiff-Appellant Dianne Weeks (“Weeks”) appeals the district court’s 

dismissal of her action for lack of jurisdiction. For the reasons below, we 

AFFIRM. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2017

Lyle W. Cayce

Clerk

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I. 

Weeks applied for disability insurance benefits in November 2009. The 

claim was initially denied on April 20, 2010, and Weeks requested a hearing, 

after which an Administrative Law Judge (“ALJ”) issued an unfavorable 

decision on January 21, 2011. The Appeals Council (“Appeals Council”) of the 

Social Security Administration (“SSA”) denied Weeks’s request for review in 

April 2012, and Weeks did not request judicial review from the district court. 

Then, on July 1, 2013, after retaining counsel, Weeks submitted a second 

application for benefits with a statement from her doctor that related back to 

the earlier time period. On July 22, 2013, the SSA denied Weeks’s second 

application on the basis that it involved the same issues as the January 2011 

decision. Weeks did not pursue her administrative appeals process regarding 

this denial. 

Starting in July 2013, Weeks also began the process for reopening the 

November 2009 application. She details communications with various SSA 

offices that occurred between July 2013 and September 2015, at which point 

the Appeals Council found no reason to reopen the April 2012 decision. 

Weeks then filed a complaint in the district court on November 6, 2015. 

Defendant-Appellee Acting Commissioner of Social Security (the 

“Commissioner”) filed a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(1), or in the alternative, for summary judgment. The 

magistrate judge concluded that the court lacked subject matter jurisdiction to 

consider the Commissioner’s decision not to reopen the April 2012 decision 

absent a colorable constitutional claim, which Weeks had not sufficiently 

raised. Weeks filed objections to the report and recommendation of the 

magistrate judge, and the district court adopted the recommendation of the 

magistrate judge and dismissed the case in its entirety. Weeks now appeals. 

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II.

This court reviews de novo a district court’s decision to dismiss based on 

lack of subject matter jurisdiction and applies the same standard as the district 

court. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). 

III.

Before a federal court may exercise jurisdiction over an action pursuant 

to 42 U.S.C. § 405(g), the claimant must have exhausted his administrative 

remedies. See Matthews v. Eldridge, 424 U.S. 319, 327–28 (1976); Harper v.

Bowen, 813 F.2d 737, 739 (5th Cir. 1987). Jurisdiction is clearly limited to 

actions that amount to a “final decision” and “made after a hearing.” 

Weinberger v. Salfi, 422 U.S. 749, 764 (1975); Harper, 813 F.2d at 739. The 

term “final decision” is undefined in the Act, and the meaning of that term was 

left to the Social Security regulations. Brandyburg v. Sullivan, 959 F.2d 555, 

559 (5th Cir. 1992). In this regard, we have explained the administrative steps 

leading up to a final decision as follows: (1) an individual files a claim with the 

SSA for initial determination; (2) a dissatisfied claimant must file a request for 

and receive reconsideration; (3) after obtaining the initial and reconsidered 

determinations, a dissatisfied claimant may file for an evidentiary hearing 

before an ALJ; (4) a dissatisfied claimant may request that the Appeals Council 

review the ALJ’s decision. Harper, 813 F.2d at 739. 

The finality requirement of section 405(g), however, does not preclude 

judicial review if a claimant asserts a colorable constitutional challenge. See

Califano v. Sanders, 430 U.S. 99, 107–09 (1977); Robertson v. Bowen, 803 F.2d 

808, 810 (5th Cir. 1986). “Merely alleging a constitutional violation or making 

a conclusory allegation is not enough; the claimant must have a colorable 

constitutional claim.” Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). 

We agree with the district court that jurisdiction is lacking over Weeks’s 

claims relating to the refusal to reopen the April 2012 decision. A refusal to 

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reopen is not subject to judicial review. 20 C.F.R. § 404.903(l). Accordingly, 

federal courts lack jurisdiction to review a decision not to reopen a claim for 

benefits. See Califano, 430 U.S. at 107–08; Thibodeaux v. Bowen, 819 F.2d 76, 

79–80 (5th Cir. 1987). Thus, there was no jurisdiction over Weeks’s claims 

relating to the refusal to reopen absent a colorable constitutional claim. 

We further agree with the district court that Weeks did not present a 

colorable constitutional claim in her complaint because Weeks was not entitled 

to a hearing on her request to reopen. See Califano, 430 U.S. at 108;

Brandyburg, 959 F.2d at 560. Accordingly, the district court correctly 

determined that the refusal to reopen was not subject to judicial review and 

that Weeks did not allege a colorable constitutional claim. 

With respect to Weeks’s complaint related to the denial of her 2013 

application as a new claim, she did not meet her burden to establish that she 

exhausted her administrative remedies as to that claim such that jurisdiction 

would be proper. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)

(“If a defendant makes a ‘factual attack’ upon the court’s subject matter 

jurisdiction over the lawsuit, . . . a plaintiff is also required to submit facts 

through some evidentiary method and has the burden of proving by a 

preponderance of the evidence that the trial court does have subject matter 

jurisdiction.”). The only potential argument for a colorable constitutional 

violation related to that claim is that the prototype process applied. Not only 

was that argument never made before the district court, but also it is 

inadequately briefed on appeal. It is therefore abandoned, Young v. Repine (In 

re Repine), 536 F.3d 512, 518 n.5 (5th Cir. 2008); FED. R. APP. P. 28(a)(8), and 

we do not address it. 

AFFIRMED. 

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