IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 02-20027
                           Summary Calendar



     DAVID ALLEN MARTIN,

                                          Plaintiff-Appellant,

          versus

     JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                          Defendant-Appellee.



          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-01-CV-464

                        September 10, 2002


Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*

     David Allen Martin (Martin) appeals the district court’s

dismissal for lack of subject matter jurisdiction of his Social

Security Act case. He maintains that the district court erred when

it concluded that he had not asserted a constitutional claim

sufficient to establish jurisdiction.

     This court conducts a de novo review of a Rule 12(b)(1) lack



     *
      Pursuant to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of subject matter jurisdiction dismissal and applies the same

standard used by the district court.              Ramming v. United States, 

, 161 (5th Cir. 2001), cert. denied, 

(2002).

When, as in this case, a litigant fails to object to the magistrate

judge’s report and recommendation, which contains a clear statement

of the consequences of failing to object, this court may review the

district court’s decision for plain error.                  See Douglas v. United

Servs. Auto. Ass’n, 

, 1428-29 (5th Cir. 1996) (en

banc).     Jurisdictional questions, however, such as those presented

by Martin, cannot be waived and may be raised at any time.                        See

United States v. Lopez-Vasquez, 

, 482 n.11 (5th Cir.

2000). Because the district court’s decision was appropriate under

either standard, we decline to choose between them.                    

  review    of   a       Social     Security   Administration

decision not to reopen prior proceedings and that res judicata

precluded relitigation of the issues Martin raised.                    This decision

is   not     subject    to   judicial          review      unless    challenged      on

constitutional grounds. See Califano v. Sanders, 

, 107-

09   (1977).      A    claimant   must         make   a    colorable    claim   of   a

constitutional violation to vest a court with jurisdiction to

review a refusal to reopen or a res judicata determination by the

Administration.        See Robertson v. Bowen, 

, 810 (5th

Cir. 1986).      Martin has failed to assert anything other than a

conclusory allegation of a constitutional violation and thus has

                                           2
failed to comply with the directive set forth in Robertson.

     We fail to discern any error, plain or otherwise, in the

district court’s decision.   Finding no error, we AFFIRM.




                                 3