Costello v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 26 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES COSTELLO, as substitute
party for HARLAN E. BASCOMBE,
deceased,
Plaintiff-Appellant, No. 04-3188
(D.C. No. 03-CV-1274-WEB)
v. (D. Kan.)
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
James Costello, as the executor of the estate of Harlan E. Bascombe,
appeals the district court’s decision that the Commissioner was not required to
reopen proceedings on Mr. Bascombe’s initial application for Social Security
disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g), and we affirm.
I.
On July 31, 1989, Mr. Bascombe applied for a period of disability and
disability insurance benefits. Although the claim was denied by notice dated
September 19, 1989, he did not receive the denial notice. Consequently, he did
not appeal the denial to the Appeals Council within the appropriate time period.
In July 1991, having learned of the denial, Mr. Bascombe requested
reconsideration of his application. In August 1994, he filed a second application
for benefits. In February 1996, the ALJ found that Mr. Bascombe did not have
good cause for an untimely request to reopen and refused to reopen the
proceedings. The ALJ also determined that Mr. Bascombe’s second application
was barred by res judicata. The Appeals Council reversed the res judicata
determination and remanded. On remand, in July 1997, the ALJ determined that
the record supported an inference of mailing of the denial notice, so that the
proceedings on the initial application need not be reopened. But the ALJ also
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determined that, in light of new medical evidence, Mr. Bascombe was entitled to
benefits on his second application. The Appeals Council affirmed.
On June 9, 2000, the district court reversed and remanded, holding that the
record was insufficient to permit an inference of mailing, and that on remand the
ALJ should conduct an evidentiary hearing at which “the Commissioner would
have an opportunity to present evidence that would permit a reasonable inference
that the denial notice dated September 19, 1989 was actually mailed to the
plaintiff.” Aplt. App. at 332.
Mr. Bascombe died in October 2000, and Mr. Costello was substituted as
the executor of his estate. At an evidentiary hearing held on November 20, 2000,
the Commissioner did not present any evidence. In August 2001, however, the
ALJ accepted into evidence a letter from Linda Kerr, Program Manager for
Kansas Disability Determination Services (the Kansas agency that processes
disability claims for the Commissioner), regarding the agency’s mailing practices.
On November 9, 2001, the ALJ held a supplemental hearing, at which Constance
Wold, the director of Kansas Disability Determination Services, testified. In a
decision dated April 10, 2002, the ALJ determined that the Commissioner had
presented substantial evidence that the denial notice was mailed, and he denied
the request to reopen.
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The Appeals Council affirmed, and the district court, noting its limited
jurisdiction to review the denial of a motion to reopen Social Security disability
proceedings, affirmed. Mr. Costello appeals.
II.
Because this case involves a denial of a motion to reopen Social Security
proceedings, the federal courts’ review is limited. “Absent a colorable
constitutional claim, a district court does not have jurisdiction to review the
[Commissioner’s] discretionary decision not to reopen an earlier adjudication.”
Blair v. Apfel, 229 F.3d 1294, 1295 (10th Cir. 2000) (quotations and alterations
omitted); see also Abbruzzese v. R.R. Ret. Bd., 63 F.3d 972, 974 (10th Cir. 1995)
(citing Califano v. Sanders, 430 U.S. 99, 107-08 (1977)). Mr. Costello raises a
due process claim, protesting the lack of notice to Mr. Bascombe of the denial of
his initial application. See Aplt. Br. at 19. 1 We determine the existence of a
constitutional claim as a matter of law, and review the issues of fact underlying
the Commissioner’s determination for substantial evidence. Wills v. Sec’y, Health
& Human Servs., 802 F.2d 870, 873 (6th Cir. 1986).
1
Mr. Costello alleges Mr. Bascombe was denied his constitutional rights to
notice and to “be present and participate in any hearings involving his claim,
including hearings on remand.” Aplt. Br. at 19. The latter contention is not
explained or further argued on appeal, and thus we deem it waived. See Cudjoe v.
Indep. Sch. Dist. No. 12 , 297 F.3d 1058, 1069 n.13 (10th Cir. 2002).
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Due process requires “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). When the name and
address of an interested party is known, due process requires notice by mail or
equivalent means designed to tender actual notice. See Mennonite Bd. of Missions
v. Adams, 462 U.S. 791, 798-800 (1983). This court has held, however, that “due
process does not require that the interested party actually receive the notice.”
In re Blinder, Robinson & Co., 124 F.3d 1238, 1243 (10th Cir. 1997); see also
United States v. 51 Pieces of Real Prop., 17 F.3d 1306, 1316 (10th Cir. 1994).
Our review of the record indicates that Mr. Costello has raised a colorable
constitutional claim, but that the ALJ had substantial evidence to conclude that
the agency mailed the denial notice to Mr. Bascombe. In light of our precedent,
then, we must conclude that Mr. Bascombe received all the process that he was
due. See In re Blinder, Robinson & Co. , 124 F.3d at 1243.
The judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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