Pineiro-Sanchez v. SHHS ( 1995 )

USCA1 Opinion

          December 26, 1995     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT




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          No. 95-1496



                               ISRAEL PI EIRO-SANCHEZ,



                                Plaintiff, Appellant,



                                          v.



                       SECRETARY OF HEALTH AND HUMAN SERVICES,



                                 Defendant, Appellee.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO





                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
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                                        Before



                                Cyr, Boudin and Lynch

                                   Circuit Judges.
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               Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
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          for appellant.

               Guillermo Gill, United States Attorney, Jose Vazquez Garcia,
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          Assistant  United  States  Attorney,  Arthur  J.  Fried,  General
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          Counsel for Social Security, Randolph W. Gaines, Acting Principal
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          Deputy  General  Counsel for  Social  Security,  A. George  Lowe,
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          Acting  Associate  General   Counsel,  Litigation  Division,  and

          Richard  Fox, Attorney,  Office  of the  General Counsel,  Social
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          Security Administration, on brief for appellee.




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                    Per Curiam.   After Israel Pi eiro-Sanchez  (or "claim-
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          ant") was  denied an administrative  hearing to review  a partial



          denial of Social Security disability benefits, the district court



          held that the hearing  denial did not constitute a  "final" deci-



          sion for purposes  of 42 U.S.C.   405(g),1 and  that it therefore



          lacked subject  matter jurisdiction to review the decision of the



          Social Security  Administration ("SSA").  Claimant  appealed.  We



          now reverse and remand for further administrative proceedings.



                    In a Notice of  Award dated February 26, 1992,  the SSA



          determined that claimant was entitled to benefits from a disabil-



          ity onset date subsequent to that originally alleged by claimant,



          and  it reduced the requested  award accordingly.   The Notice of



          Award informed  the claimant:  "You have  60 days  to ask for  an



          appeal.   The 60 days start  the day after you  receive this let-



          ter."   The critical factual  dispute in the  case is whether the



          claimant filed a timely  appeal from this decision.   The resolu-



          tion of the dispute  turns on when claimant received  the Notice,



          and when he requested a hearing.



                    Claimant's  counsel,  Juan  Hernandez Rivera,  Esquire,



          ("Hernandez"),  avers that he did  not receive the  Notice in San



          Juan, Puerto Rico,  until March 9, 1992    12  days after the SSA



          mailed it  from Baltimore, Maryland.2   Hernandez further asserts




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               1Section  405(g) provides  that "any  final decision  of the

          Secretary made after  a hearing" is judicially  reviewable in the

          district court.  42 U.S.C.A.   405(g) (West 1991 & Supp. 1995).



               2There is no indication  as to when, if ever,  claimant him-

          self received the Notice.



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          that he requested a hearing on behalf of the claimant in a letter



          dated April 28, 1992.   On the other hand, the Secretary contends



          that the  deadline  for filing  an  appeal was  May 1,  and  that



          claimant missed the  deadline because his hearing request was not



          received in the district office in Manati, Puerto Rico, until May



          7.   Consequently, in September 1992, an administrative law judge



          ("ALJ") sent a  letter to Hernandez  inquiring whether there  was



          "good cause" to excuse  the late filing.  In  response, Hernandez



          explained that he had not received the Notice until March  9, and



          that he had requested a hearing within 60 days thereafter.



                    Ultimately, the ALJ issued  an order of dismissal after



          determining that  claimant had failed  to show  "good cause"  for



          failing to file the  hearing request on time.   Specifically, the



          ALJ found that: (1) counsel's representation that he had received



          the  Notice on  March 9  was not  credible because  mail normally
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          takes no more than five days to reach Puerto Rico from Baltimore;



          and (2) counsel  probably posted  the hearing request  on May  5,
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          rather  than April 28, since  the district office  received it on
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          May  7.3   The ALJ  thereupon dismissed  the appeal  as untimely.
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          Claimant then  sought review by  the Appeals Council,  which con-



          cluded  that SSA  regulations  afford no  basis for  reviewing an



          ALJ's discretionary dismissal.  See infra note 5.
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                    District court  dismissals for  lack of  subject matter



          jurisdiction are reviewed de novo.  Torres v. Secretary of Health
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               3In contrast to the affidavit the Secretary submitted to the

          district  court, the order of dismissal lists May 3 as the filing

          deadline.



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          and Human Services, 845 F.2d 1136, 1137 n.1 (1st Cir. 1988).  The
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          parties cite to a number of inapposite authorities addressing the



          discretionary power to  deny requests  for deadline  extensions.4
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          Here,  however, the  question is  whether the  claimant's hearing



          request  was filed  on time  in the  first instance.   If  so, we
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          cannot doubt  that he has  been denied his  statutory right  to a



          hearing.5  Absent controlling authority to  the contrary, we find



          that  the district court had jurisdiction under section 405(g) to



          review  the  agency decision  denying  claimant's  request for  a



          hearing in the first  instance.  See Matsibekker v.  Heckler, 738
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          F.2d 79, 81-82 (2d Cir. 1984).



                    The  ALJ proceeded  on  the assumption  that claimant's



          request  for hearing in the  first instance was  late, then asked



          claimant to  demonstrate "good  cause" for missing  the deadline.



          The  district court  implicitly indulged  the same  assumption in



          dismissing  the  complaint.   On the  other  hand, the  record on



          appeal includes a date-stamped copy of the back of  the Notice of



          Award,  which  claimant   contends  demonstrates  that  Hernandez



          received the Notice on March 9, 1992.  The mail supervisor at the



          Hernandez  law  firm submitted  an  affidavit corroborating  this



          position  as well.    The Secretary  countered with  an affidavit


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               4See 20 C.F.R.    416.1403(8) (1995) (a denial of  a request
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          to extend  the time for filing an appeal is not reviewable by the
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          "Appeals Council" or by the courts).



               542 U.S.C.A.    405(b)(1) (West  1991 & Supp.  1995)   (pro-

          viding  "reasonable  notice and  opportunity  for  a hearing"  to

          review  adverse decisions);  see also  20 C.F.R.    404.909(a)(1)
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          (1995)  (describing procedure  for requesting  reconsideration of

          initial determination).



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          substantially incorporating the ALJ's "findings."







                    On this record, the ALJ's determination that the appeal



          was  untimely filed was unreasonable and cannot stand.  We there-



          fore remand to the ALJ for further proceedings.  If the SSA seeks



          a hearing to offer  evidence that, despite the clear  implication



          of the  evidence before us, including the date stamp and the mail



          clerk's affidavit, the  appeal was  not timely filed,  we do  not



          rule out  such a hearing.6   However, the SSA may,  in the inter-



          ests of  efficiency, wish  to avoid waste  of time and  effort by



          foregoing such a hearing;  in this event, the ALJ  should proceed



          to the merits of claimant's appeal.



                    The  judgment of the district  court is vacated and the
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          case is remanded to the Secretary for further proceedings consis-
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          tent with this opinion.
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               6We note, however, that in addition to the evidence that the

          Notice of Award was received on March  9, 1992, the claimant also

          produced credible evidence  that he requested a  hearing on April

          28, that is, within the deadline urged by the Secretary.  The ALJ
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          appeared to believe that  a hearing request is deemed  filed when

          the  district office  receives it;  this was  error.   Dietsch v.
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          Schweiker,  700 F.2d  865, 868  (2d Cir.  1983) (date  of mailing
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          controls).   Moreover, the Secretary adverts to no evidence as to

          the  processing of hearing requests in  the district office, such

          as  might rule out the possibility of delay in preparing the dis-

          trict office form that reflects May 7 as the date of receipt.



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