FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. D. Brock Hornby, U.S. District Judge.
L. Fenner on brief for appellant.
Sonia, Special Assistant United States Attorney, Social
Security Administration, Office of the General Counsel, and
Thomas E. Delahanty II, United States Attorney, on brief for
Lynch, Baldock, [**] and Kayatta Circuit Judges.
BALDOCK, Circuit Judge.
a remand from a federal district court, the Commissioner of
Social Security issued a partially favorable decision on
Plaintiff Cynthia Diane Walker-Butler's claim for Title
II disability benefits. Dissatisfied, Plaintiff once again
sought review of the Commissioner's decision in federal
court, but the district court dismissed her complaint as
untimely. We consider in this appeal whether a five-day grace
period outlined in 20 C.F.R. § 422.210(c) should have
applied on remand and saved her complaint from dismissal.
individual seeking Title II disability benefits from the
Social Security Administration may obtain judicial review in
federal district court of "any final decision of the
Commissioner of Social Security [regarding those benefits]
made after a hearing to which he was a party." 42 U.S.C.
§ 405(g). On an individual's initial application for
disability benefits, such a final decision arises in only two
circumstances. First, the decision of the administrative law
judge ("ALJ") who held the hearing on the
individual's claim will become the final decision of the
Commissioner if the Appeals Council of the Social Security
Administration denies the individual's request for
further review. 20 C.F.R. §§ 404.981, 422.210(a).
Second, if the Appeals Council does decide to review the
individual's claim, the Appeals Council's decision
becomes the final decision of the Commissioner. Id.
In either instance, the Appeals Council must take
some action-either denying review or issuing its own
decision-before the individual is considered to have
exhausted his or her administrative remedies with the Social
Security Administration and may therefore seek judicial
review in federal district court. See id.
what counts as the Commissioner's final decision differs
when the individual's case has already gone to federal
court and been remanded for further proceedings. In such an
instance, and assuming the individual does not file with the
Appeals Council any written exceptions to the ALJ's new
decision on remand, the ALJ's decision
"will become the final decision of the
Commissioner after remand on [the individual's] case
unless the Appeals Council assumes jurisdiction of the
case" within sixty days after the date of the
ALJ's new decision. Id. § 404.984(a), (c)
(emphases added). Put differently, the Appeals Council does
not need to take action before the individual may seek
judicial review in federal district court. See id.
If the Appeals Council chooses to do nothing, the ALJ's
decision automatically becomes the final decision of the
Commissioner. Id. § 404.984(d).
differences in finality on an initial application for
disability benefits and on remand from a district court
influence how we calculate the amount of time the individual
has to seek judicial review. In both situations, 42 U.S.C.
§ 405(g) applies and mandates that the individual must
file his or her civil action "within sixty days after
the mailing to him of notice of [the Commissioner's
final] decision or within such further time as the
Commissioner of Social Security may allow." 42 U.S.C.
§ 405(g). Even so, the specific procedural posture of
the case changes the practical effect of this statute.
initial applications for disability benefits, applying §
405(g) is relatively straightforward. In that scenario, the
Appeals Council, which must take some action, always mails
the individual a notice of that action (i.e., denying review
or issuing its own decision). 20 C.F.R. §§ 404.967,
404.981. As such, the default rule under § 405(g) is
that the individual has sixty days from the date the notice
was mailed to bring a civil action unless the Commissioner
has given him or her more time to do so. And under 20 C.F.R.
§ 422.210(c), the Commissioner has done just that:
pursuant to this regulation, the sixty-day time limit starts
when the individual receives the notice of the
Appeals Council's action. Further, § 422.210(c)
provides that "[f]or purposes of this section, the date
of receipt of notice . . . shall be presumed to be 5 days
after the date of such notice, unless there is a reasonable
showing to the contrary."
remand, the application of § 405(g) is a bit trickier.
While the ALJ must mail a notice of its new decision on
remand to the individual, see 20 C.F.R. §§
404.977(c), 404.984(b)(1), the Appeals Council, which has no
obligation to act, need not mail a notice to the individual
when it decides not to assume jurisdiction over the case,
see id. § 404.984(d) (omitting any language
suggesting that the Appeals Council must mail to the
individual a notice of its decision not to assume
jurisdiction). In other words, in the situation where the
ALJ's decision automatically turns into the final
decision of the Commissioner after sixty days, no new notice
is mailed to the individual informing him or her of that
transformation. This makes § 405(g) somewhat awkward to
apply to these situations on remand even though it
undoubtedly does apply: because the Appeals Council does not
mail a separate notice of this automatic final decision, how
can the individual file his or her civil action in federal
court within sixty days of the mailing of a notice?
the individual cannot do so. For that reason, §
405(g)'s sixty-day time limit must necessarily begin to
run from the day the ALJ's decision automatically
transforms into the final decision of the
Commissioner. As one district court aptly put it,
"[t]he Appeals Council's inaction triggers the
finality of the decision (without need for any mailing of a
notice of final decision), and a claimant then has sixty days
from that date to commence a civil action."
Harris v. Colvin, No.
3:15-cv-05575-RBL, 2015 WL 9302910, at *1 (W.D. Wash. Dec.
what about 20 C.F.R. § 422.210(c) and its five-day grace
period? Can it somehow apply on remand to give an individual
an extra five days to once again seek judicial review in
federal court even though this regulation speaks in terms of
receiving a notice? The applicability of § ...