

                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 97-1245

                     THOMAS R. BOOTHBY,

                    Plaintiff, Appellant,

                             v.

        SOCIAL SECURITY ADMINISTRATION COMMISSIONER,

                    Defendant, Appellee.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]

                                        

                           Before

                   Selya, Boudin and Lynch,
                       Circuit Judges.

                                        

Francis M. Jackson on brief for appellant.
Jay  P.  McCloskey, United  States  Attorney,  David R.  Collins,
Assistant  United  States Attorney,  and Thomas  D. Ramsey,  Assistant
Regional 
               Counsel, 
                        Office 
                              of the Chief Counsel, Region I, Social Security
Administration, on brief for appellee.

                                        

                      November 18, 1997
                                        


     Per Curiam.  In  February 1992, claimant Thomas  Boothby

filed  a  pro  se  application  for  SSI  benefits,  alleging

disability on account of alcoholism and depression.  When his

application was denied at the administrative level,  claimant

failed  to seek  further review.   In  September 1993,  after

suffering a heart attack, he filed a second such  application

and, with the assistance  of counsel, was eventually  awarded

benefits pursuant thereto.   The ALJ rejected his request  to

reopen  the first  application,  however,  finding  that  new

evidence 
                    documenting 
                               his 
                                   mental impairments failed to establish

"good cause" for doing so.  See 20 C.F.R. S 416.1488.   After

the 
               Appeals 
                      Council 
                              declined review, claimant filed this action

in district  court challenging  the denial  of his  reopening

request.   From a  judgment dismissing the  suit for lack  of

jurisdiction, he now appeals.  

     The denial  of a request  to reopen  an application  for

disability benefits is  ordinarily not reviewable in  federal

court.  See, e.g.,  Califano v. Sanders, 430 U.S. 99,  107-09

(1977); Colon v. Secretary of HHS, 877 F.2d 148, 152-53  (1st

Cir. 1989)  (per curiam).  An  exception to this rule  exists

where a colorable  constitutional claim  has been  presented.

See
              , 
                e.g.
                    , 
                      Sa
                        nders, 430 U.S. at 109; Dvareckas v. Secretary of

HHS
              , 
                804 
                    F.2d 770, 772 (1st Cir. 1986) (per curiam).  Claimant

has attempted  to advance  such a  claim here--arguing  that,

because 
                   his 
                      mental 
                             impairments prevented him from understanding

                             -2-


and 
               pursuing 
                       his 
                           administrative remedies, and because he lacked

legal                                                       o

reopen 
                  the 
                      first application contravened due process.  Such an

argument, when factually  supported, has  gained a  favorable

judicial 
                    reception. 
                               
                               See
                                  ,
                                    e.g., Evans v. Chater, 110 F.3d 1480,

1482-83 (9th Cir. 1997) (listing cases); Parker v.  Califano,

644                                   Torres
                  or  other representation at  the time,  the refusal  t
                F.2d 1199, 1203  (6th Cir. 1981);        v. Secretary  of

HEW, 475  F.2d 466, 468-69 (1st  Cir. 1973); see also  Social

Security Ruling (SSR) 91-5p; Acquiescence Ruling 90-3(4).  As

one 
               court 
                     has 
                        observed, 
                                  "It offends fundamental fairness ... to

bind 
                a 
                  claimant to an adverse ruling who lacks both the mental

competency and the legal assistance necessary to contest  the

initial 
                   determination." 
                                   
                                   Young v. Bowen, 858 F.2d 951, 955 (4th

Cir. 1988).1

   1  Inexplicably, claimant made no mention of the due
process issue in his complaint or in his "itemized statement"
(although he did there refer to the analogous SSR 91-5p). 
The first written reference thereto appears in his objections
to the magistrate-judge's report; it is unclear whether the
issue was earlier raised at oral argument.  Any claim not
presented to the magistrate-judge would be waived.  See,
e.g., Borden v. Secretary of HHS, 836 F.2d 4, 6 (1st Cir.
1987).  Yet because the Commissioner has not argued that any
such waiver occurred, we need not pursue the matter. 
Similarly, because the Commissioner has not contended that
the constitutional claim was subject to the administrative
exhaustion requirement, we need not address the issue.  See,
e.g., Shrader v. Harris, 631 F.2d 297, 300 (4th Cir. 1980)
(excusing failure to present due process issue to Secretary).

                             -3-


     On appeal, the Commissioner does not take serious  issu

            opositions.   Instead, he argues that the medical

          falls  short  of  "definitively  establishing  tha
                                                                        e
            with 
                these 
                      pr           2
            evidence                                                    t

plaintiff was unfit  to pursue  the remaining  administrative

remedies."  Brief  at 12.  Yet  the relevant inquiry here  is

whether  a  "colorable"   due  process  violation  has   been

demonstrated.  This is  not an onerous standard.  See,  e.g.,

Evans
                , 
                  110 
                      F.3d 
                          at 
                             1483 
                                  (noting that "plaintiff whose challenge

was 
               not 
                  'wholly 
                          insubstantial, immaterial, or frivolous' stated

a colorable  constitutional  claim")  (quoting  Boettcher  v.

Secretary 
                     of 
                        HHS, 759 F.2d 719, 722 (9th Cir. 1995)); Boock v.

Shalala
                  , 
                    48 
                      F.3d 
                           348, 
                                353 (8th Cir. 1995) (indicating that only

those claims  that were "patently  frivolous" would "fail  to

confer jurisdiction upon the district court") (Campbell,  J.,

sitting by designation).

     Upon review of the evidence here, we find that  claimant

has presented  a colorable due  process claim.   Dr.  Doiron,

although 
                    reporting well after the events in question, spoke of

an organic  disorder  with significantly  compromised  mental

functions, variable  attention span,  impaired  concentration

   2  The Commissioner does assert at one point, without
elaboration, that "the alleged constitutional deprivation
must concern the proceeding at which the determination not to
reopen was made."  Brief at 10 (citing Cherry v. Heckler, 760
F.2d 1186, 1190 n.4 (11th Cir. 1985)).  Yet other courts have
taken a broader view of the Sanders exception, see, e.g.,
Evans, 110 F.3d at 1482-83, which we regard as the preferable
approach.

                             -4-


levels,  depressive  symptomology  and  substandard   reading

      y.3   And  even Dr.  Luongo, on  whom the  Commissioner

relies, spoke of an emotionally unstable personality disorder

with strong sociopathic and alcoholic features, a borderline-

defective intellect, a chronic difficulty in maintaining  any

leve
            abilit
                l of  responsibility, and an  inability to handle  funds.

Factfinding 
                       is 
                          of 
                            course 
                                   the function of the agency rather than

a court.  See, e.g., Torres, 475 F.2d at 469.  We hold simply

that the evidence of mental incapacity in 1992, when claimant

failed 
                  to 
                     pursue his administrative remedies, is sufficient to

warrant further inquiry by the Commissioner.

     Because the due process inquiry involves a fact-specific

judgment 
                    in 
                       evaluating medical evidence, we remand the case so

the Commissioner can make this judgment as an initial  matter

and--if satisfied that  there was a  denial of due  process--

address the merits.   This procedure is consistent with  past

practice 
                    in 
                       earlier cases.  We think it worth emphasizing that

this remand turns on whether claimant has made a  "colorable"

due process  claim.  Nothing in  this opinion is designed  to

suggest that the Commissioner should necessarily find that  a

violation occurred.

   3  The Commissioner has not objected to consideration of
the second Doiron report, which was first presented to the
Appeals Council.  See, e.g., Perez v. Chater, 77 F.3d 41, 44-
45 (2d Cir. 1996) (following majority view that new evidence
submitted to Appeals Council is properly deemed part of
administrative record, even when Council has denied review).

                             -5-


     We add that,  given claimant's failure to raise the  due

process 
                   issue before the Commissioner, and given his tardiness

in presenting that issue squarely to the district court,  see

note 1 supra, any  request for attorney's fees in this  court

would be looked upon with disfavor. 

     The judgment  is vacated and  the case  remanded to  the

district court, with directions to remand to the Commissioner

for further action consistent herewith.  No costs.

                             -6-
