In order to exhaust administrative remedies under the Social Security Act, a claimant must have received (1) an initial determination regarding his claim for benefits, (2) reconsideration, (3) a hearing before an administrative law judge and, finally, (4) Appeals Council review. 20 C.F.R. § 404.900(a)(1). Under 42 USC § 405(g), "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party" may obtain judicial review of such decision. Courts have found a failure to exhaust when no hearing occurs because a claimant withdrew his request. Beattie v. Astrue, 845 F. Supp. 2d 184, 189 n.9 (D.D.C. 2012) ("Because [Plaintiff] withdrew his request, no hearing was held and no final decision ever issued.); see also Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992) (finding that when a plaintiff "waived his opportunity for a hearing," "he failed to exhaust the administrative remedy upon which judicial review depends"). "The Supreme Court has construed 42 U.S.C. § 405(g) as having jurisdictional and non-jurisdictional exhaustion components.

DiscussionCiting the Ninth Circuit's decision in Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1990), defendant argues in the Motion to Dismiss that subject matter jurisdiction is lacking under Section 405(g) of the SSA, because plaintiff's hearing request was dismissed, so she did not receive a final decision of the Commissioner after a hearing. Defendant also contends federal subject matter jurisdiction is lacking under Section 1331, because plaintiff has not stated a colorable constitutional claim.

But Plaintiff's allegation of "undue delay" is insufficient without some additional support. The mere allegation of a due process violation, without a colorable constitutional claim, is insufficient to provide subject matter jurisdiction.Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1992). Moreover, Plaintiff's reliance on the HALLEX to support his argument that the remand order is a final decision is misplaced because as an internal procedure manual, HALLEX does not impose judicially enforceable duties upon the agency.

'” Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992) (quoting Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987))

On the other hand, a claim is not colorable if it is clearly immaterial, insubstantial, or frivolous and made only for the purposes of establishing jurisdiction. Hoye v. Sullivan, 985 F.2d 990, 991-92 (9th Cir. 1993). A mere allegation of a due process violation is not colorable; the claim "must be supported by facts sufficient to state a violation of substantive or procedural due process."

Matlock v. Sullivan, 908 F.2d 492, 493 (9th Cir. 1990) (judicial review of denial of untimely request for review would "frustrate Congress' intent to forestall belated litigation of stale claims"); see also Brandtner v. Department, 150 F.3d 1306, 1307 (10th Cir. 1998). Thus, where a claim is dismissed due to a claimant's failure to request an ALJ hearing within the applicable time period without good cause, subject-matter jurisdiction is lacking under 42 U.S.C. § 405(g); Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1993). Absent complete exhaustion, the district court nevertheless has subject-matter jurisdiction if there is a "colorable constitutional claim" that would otherwise provide independent subject-matter jurisdiction.

A "mere allegation of a due process violation" is not a colorable constitutional claim. Anderson v. Babbitt, 230 F.3d 1158, 1163 (9th Cir. 2000) (citing Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1993)). Rather, the claim must be supported by "'facts sufficient to state a violation of substantive or procedural due process.'"

By refusing to attend, Davenport "waived [her] opportunity for a hearing and failed to exhaust the administrative remedy upon which judicial review depends." Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992); see also Subia v. Comm'r of Soc. Sec, 264 F.3d 899, 902 (9th Cir. 2001); Brandyburg v. Sullivan, 959 F.2d 555, 557-62 (5th Cir. 1992); Doe v. Sec. of Health and Human Servs., 744 F.2d 3, 4 (1st Cir. 1984) (per curiam). Federal courts typically decline to review unexhausted claims.

A "mere allegation of a due process violation" is not a colorable constitutional claim. Anderson v. Babbitt, 230 F.3d 1158, 1163 (9th Cir. 2000) (citing Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1993)). Rather, the claim must be supported by "'facts sufficient to state a violation of substantive or procedural due process.'"

III Given the importance of administrative review prior to judicial intervention, we held in Anderson that even where exhaustion is not a jurisdictional prerequisite to suit, a court should require compliance with an exhaustion statute unless the suit alleges a constitutional claim which is "(1) collateral to a substantive claim of entitlement, (2) colorable, and (3) `one whose resolution would not serve the purposes of exhaustion'". 230 F.3d at 1163 (quoting Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992)). We conclude that the plaintiffs' claims in this case satisfy each of these requirements.