December 26, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1496
ISRAEL PI EIRO-SANCHEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Cyr, Boudin and Lynch
Circuit Judges.
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
for appellant.
Guillermo Gill, United States Attorney, Jose Vazquez Garcia,
Assistant United States Attorney, Arthur J. Fried, General
Counsel for Social Security, Randolph W. Gaines, Acting Principal
Deputy General Counsel for Social Security, A. George Lowe,
Acting Associate General Counsel, Litigation Division, and
Richard Fox, Attorney, Office of the General Counsel, Social
Security Administration, on brief for appellee.
Per Curiam. After Israel Pi eiro-Sanchez (or "claim-
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
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.
2
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
takes no more than five days to reach Puerto Rico from Baltimore;
and (2) counsel probably posted the hearing request on May 5,
rather than April 28, since the district office received it on
May 7.3 The ALJ thereupon dismissed the appeal as untimely.
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.
District court dismissals for lack of subject matter
jurisdiction are reviewed de novo. Torres v. Secretary of Health
3In contrast to the affidavit the Secretary submitted to the
district court, the order of dismissal lists May 3 as the filing
deadline.
3
and Human Services, 845 F.2d 1136, 1137 n.1 (1st Cir. 1988). The
parties cite to a number of inapposite authorities addressing the
discretionary power to deny requests for deadline extensions.4
Here, however, the question is whether the claimant's hearing
request was filed on time in the first instance. If so, we
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
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
4See 20 C.F.R. 416.1403(8) (1995) (a denial of a request
to extend the time for filing an appeal is not reviewable by the
"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)
(1995) (describing procedure for requesting reconsideration of
initial determination).
4
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
case is remanded to the Secretary for further proceedings consis-
tent with this opinion.
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
appeared to believe that a hearing request is deemed filed when
the district office receives it; this was error. Dietsch v.
Schweiker, 700 F.2d 865, 868 (2d Cir. 1983) (date of mailing
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.
5