Ronald Welch v. Carolyn W. Colvin

MEMORANDUM

Ronald Welch appeals the district court’s judgment dismissing his complaint against the Commissioner of Social Security for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s judgment. We vacate and remand.

The Social Security Appeals Council dismissed as untimely Welch’s request for review of a decision by an administrative law judge denying his application for disability benefits. Welch’s attorney claims that he timely filed the request for review by facsimile, as permitted by agency rules. To prove that he did so, Welch’s attorney provided the Council with, among other documents, a transmission log with the Council’s fax number.

Although the Council’s dismissal order is not a final decision, the district court nonetheless had jurisdiction to review it under 42 U.S.C § 405(g) because Welch asserted a colorable constitutional claim. Califano v. Sanders, 430 U.S. 99, 109 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977); Matlock v. Sullivan, 908 F.2d 492, 493-94 (9th Cir.1990). We recently held that due process requires the Commissioner to give “some explanation” when dismissing an apparently valid request for a…