which make findings of fact and decisions as to rights of applicants for payment, or which affirm, modify or reverse such orders, and not orders which merely deny petitions to reopen proceedings in which such findings and decisions have been made.Carney v. Califano, 598 F.2d 472, 474 (8th Cir. 1979) (quoting Filice v. Celebrezze, 319 F.2d 443, 445-46 (9th Cir. 1963)). We therefore hold the district court was correct in deciding it lacked jurisdiction to review the Secretary's decision. Califano v. Sanders, supra, 430 U.S. at 107-09, 97 S.Ct. at 985-986;Carney v. Califano, supra, 598 F.2d at 473-74; Sheehan v. Secretary of HEW, 593 F.2d 323, 325-27 (8th Cir. 1979).
All circuits that have considered the question after Sanders [ Califano v. Sanders] have held that a decision of the Social Security Administration (SSA) not to reopen is unreviewable, whether or not the SSA held a hearing on whether good cause for the late filing was shown. See Davis v. Schweiker, 665 F.2d 934 (9th Cir. 1982); Giacone v. Schweiker, 656 F.2d 1238 (7th Cir. 1981); Rios v. Secretary of Health, Education and Welfare, 614 F.2d 25 (1st Cir. 1980); Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472 (8th Cir. 1979); Teague v. Califano, 560 F.2d 615 (4th Cir. 1977).Stone v. Heckler, 778 F.2d 645 (11th Cir. 1986) and Peterson v. Califano, 631 F.2d 628 (9th Cir. 1980) involve the precise matter at issue in the instant case.
All circuits that have considered the question after Sanders have held that a decision of the Social Security Administration (SSA) not to reopen is unreviewable, whether or not the SSA held a hearing on whether good cause for the late filing was shown. See Davis v. Schweiker, 665 F.2d 934 (9th Cir. 1982); Giacone v. Schweiker, 656 F.2d 1238 (7th Cir. 1981); Rios v. Secretary of Health, Education and Welfare, 614 F.2d 25 (1st Cir. 1980); Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472 (8th Cir. 1979); Teague v. Califano, 560 F.2d 615 (4th Cir. 1977). Mrs. White contends that this case is different because the ALJ found good cause for the late filing, held a hearing, and made a decision on the issue of retroactive benefits, which she timely appealed.
Other circuits have extended the reasoning of Sanders to preclude review of a dismissal on the basis of a denial of a motion to reopen. Such refusals to reopen and determinations that a claim is res judicata are not reviewable. See Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472 (8th Cir. 1979); Matos v. Secretary of HEW, 581 F.2d 282 (1st Cir. 1978). Cf. Peterson v. Califano, 631 F.2d 628 (9th Cir. 1980) (refusing to review order denying extension of filing period for appeals).
In Wilson the Secretary did not refuse to reopen the previous applications as he did in the case now before us. See Carney v. Califano, 598 F.2d 472, 473-74 (8th Cir. 1979) (per curiam) (rejecting contention that district courts have jurisdiction to review refusals to reopen made after a hearing). Cf. Harapat v. Califano, 598 F.2d 474, 476-78 (8th Cir. 1979); Howard v. Califano, 590 F.2d 137, 137-38 (5th Cir. 1979) (per curiam) (applying Sanders).
This is so principally because the "final decision of the Secretary" refers to the initial substantive decision of the Secretary on the benefits claim. See id. at 107-08 n. 8, 97 S.Ct. 980 (citing cases); Carney v. Califano, 598 F.2d 472 (8th Cir. 1979); Filice v. Celebrezze, 319 F.2d 443, 445-46 (9th Cir. 1963); Marchant v. Califano, 464 F. Supp. 923 (E.D.Ark. 1979); Stewart v. Califano, 462 F. Supp. 158 (D.Kan. 1978). Compare Starcher v. Califano, 464 F. Supp. 997 (N.D.W.Va. 1979) with Farley v. Califano, 599 F.2d 606 (4th Cir. 1979).
On the other hand, “res judicata in administrative proceedings [is] not applied as rigidly as res judicata in ordinary judicial proceedings.” Carney v. Califano, 459 F.Supp. 537, 539 (W.D. Mo. 1978), aff'd, 598 F.2d 472 (8th Cir. 1979) (per curiam). Given that the prior CDB claim was denied without a hearing, not appealed, and likely involved Claimant (who suffers from intellectual disability) representing herself, there is a question whether it would bar a subsequent claim.
Several courts, both in and out of the Ninth Circuit, have held this lack of jurisdiction extends to the review of claims denied on the basis of res judicata. See Davis, 665 F.2d at 935-36; Matos v. Sec'y of HEW, 581 F.2d 282 (1st Cir. 1978); Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472 (8th Cir. 1979). A claimant may get past this barrier if the ALJ improperly revoked the doctrine of res judicata.
Id. Therefore, although the Commissioner could have refused to reopen the prior decision without granting a hearing, the fact that he did hold a hearing does not change the fact that subject matter jurisdiction is lacking. See Carney v. Califano, 598 F.2d 472, 473-474 (8h Cir. 1979); Latona v. Schweiker, 707 F.2d 79, 81 (2nd Cir. 1983) (per curiam); Cappadora v. Celebrezze, 356 F.2d 1, 4-5 (2d Cir. 1966). Having concluded that plaintiff's claim falls within the purview of the cases denying jurisdiction, we must determine whether her claim fits into any of the noted exceptions.
Secretary's determination that a claim is barred by res judicata and his companion decision not to reopen a case are indeed not final decisions open to district court review. Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982); Rios v. Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980); Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472, 474 (8th Cir. 1979). But that proposition does not necessarily end the inquiry.