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 2002-09

Martin v. Barnhart ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20027
Summary Calendar
DAVID ALLEN MARTIN,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-464
September 10, 2002
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
David Allen Martin (Martin) appeals the district court’s
dismissal for lack of subject matter jurisdiction of his Social
Security Act case. He maintains that the district court erred when
it concluded that he had not asserted a constitutional claim
sufficient to establish jurisdiction.
This court conducts a de novo review of a Rule 12(b)(1) lack
*
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opinion should not be published and is not precedent except under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.
of subject matter jurisdiction dismissal and applies the same
standard used by the district court.              Ramming v. United States,
    281 F.3d 158
    , 161 (5th Cir. 2001), cert. denied,
    122 S.Ct. 2665
     (2002).
When, as in this case, a litigant fails to object to the magistrate
judge’s report and recommendation, which contains a clear statement
of the consequences of failing to object, this court may review the
district court’s decision for plain error.                  See Douglas v. United
Servs. Auto. Ass’n,
    79 F.3d 1415
    , 1428-29 (5th Cir. 1996) (en
banc).     Jurisdictional questions, however, such as those presented
by Martin, cannot be waived and may be raised at any time.                        See
United States v. Lopez-Vasquez,
    227 F.3d 476
    , 482 n.11 (5th Cir.
2000). Because the district court’s decision was appropriate under
either standard, we decline to choose between them.
    Id.
    Martin    seeks   review    of   a       Social     Security   Administration
decision not to reopen prior proceedings and that res judicata
precluded relitigation of the issues Martin raised.                    This decision
is   not     subject    to   judicial          review      unless    challenged      on
constitutional grounds. See Califano v. Sanders,
    430 U.S. 99
    , 107-
09   (1977).      A    claimant   must         make   a    colorable    claim   of   a
constitutional violation to vest a court with jurisdiction to
review a refusal to reopen or a res judicata determination by the
Administration.        See Robertson v. Bowen,
    803 F.3d 808
    , 810 (5th
Cir. 1986).      Martin has failed to assert anything other than a
conclusory allegation of a constitutional violation and thus has
2
failed to comply with the directive set forth in Robertson.
We fail to discern any error, plain or otherwise, in the
district court’s decision.   Finding no error, we AFFIRM.
3