United States Court of Appeals
For the First Circuit
No. 16-1944
CYNTHIA DIANE WALKER-BUTLER,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,*
Acting Commissioner of the Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Baldock,** and Kayatta
Circuit Judges.
Riley L. Fenner on brief for appellant.
Nicole 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
appellee.
May 12, 2017
* Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill
has been substituted for Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration.
** Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge. Following 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.
I.
An 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,
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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.
But 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.1 Id.
1 If the individual does file written exceptions with the
Appeals Council, then the procedures are much more similar to an
individual's initial application for benefits: either the
Appeals Council will (1) "conclude[] that there is no reason to
change the decision of the [ALJ]" and deny review, in which case
"the decision of the [ALJ] is the final decision of the
Commissioner after remand," 20 C.F.R. § 404.984(b)(2), or
(2) assume jurisdiction of the case based on the exceptions and
issue a "new, independent decision" that in turn functions as
the final decision of the Commissioner after remand, id.
§ 404.984(b)(3).
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§ 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).
These 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.
As we explain more later on, however, the case
currently before us does not involve any decision on remand to
which written exceptions were filed with the Appeals Council.
Thus, for the sake of simplicity, when we discuss cases on
remand or the Commissioner's final decision on remand, we are
specifically referring to the situation where an individual has
not filed any written exceptions to the ALJ's decision.
Similarly, our ultimate decision today is only concerned with
situations where an individual has not filed any written
exceptions.
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On 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."
But on 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
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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?
Obviously, 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.2 As one district
court aptly put it, "[t]he Appeals Council's inaction triggers
2 An argument could be made that on remand the ALJ's
notice of decision, which could potentially become the final
decision of the Commissioner after sixty days, instead functions
as the notice from which the sixty-day filing period described
in § 405(g) begins to run. But this would make little sense.
The practical result of such an interpretation would be that the
individual would still have to wait a full sixty days to see if
the Appeals Council would assume jurisdiction of the case, 20
C.F.R. § 404.984(c), and then if it did not, he or she would
have little to no time left to seek judicial review of the ALJ's
decision in federal court. As should be quite obvious, that
would be manifestly absurd and unjust. In any event, both
Plaintiff and the Commissioner assume on appeal that the sixty-
day filing period under § 405(g) begins to run from the date the
ALJ's decision automatically becomes the Commissioner's final
decision, and we see no reason to disturb this mutual agreement.
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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. 18, 2015).
But 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 § 422.210(c) to cases
on remand forms the basis of Plaintiff's appeal today.
II.
Plaintiff applied for Title II disability benefits
with the Social Security Administration. An ALJ initially
denied her claim after a hearing, and the Appeals Council denied
her request for review. Accordingly, the ALJ's decision became
the final decision of the Commissioner from which Plaintiff
sought judicial review with a federal district court.
42 U.S.C. § 405(g); 20 C.F.R. §§ 404.981, 422.210. The district
court remanded her claim for further administrative proceedings
in December 2014.
On August 27, 2015, while on remand, the ALJ changed
course and issued a partially favorable decision on Plaintiff's
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claim. The ALJ mailed a copy of the notice of that decision to
Plaintiff. In pertinent part, the notice stated the following:
If you do not file written exceptions and the Appeals
Council does not review my decision on its own, my
decision will become final on the 61st day following
the date of this notice. After my decision becomes
final, you will have 60 days to file a new civil
action in Federal district court. You will lose the
right to a court review if you do not file a civil
action during the 60-day period starting with the day
my decision becomes final. . . . We will not send you
any more notices about your right to file in Federal
district court.
Notably, Plaintiff did not file any written exceptions to the
ALJ's decision on remand. Similarly, the Appeals Council did
not review the ALJ's decision on its own accord. The ALJ's
decision therefore became the final decision of the Commissioner
once again. 20 C.F.R. § 404.984.
Plaintiff thereafter filed a civil action in federal
district court on January 4, 2016, challenging the ALJ's
decision on remand. The Commissioner, however, moved to dismiss
Plaintiff's action on the basis that it was untimely. The
Commissioner argued that the ALJ's decision became final on
October 27, 2015, which was the first day after the Appeals
Council's sixty days to assume jurisdiction of the ALJ's August
27, 2015 notice of decision had run. As such, the Commissioner
calculated that Plaintiff had until only December 26, 2015—sixty
days after the ALJ's decision became final—to file a civil
action in federal court challenging the decision. Since
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December 26 was a Saturday, however, the Commissioner conceded
that Plaintiff could wait until the following Monday, December
28 to file her claim. But because Plaintiff nonetheless missed
this deadline by several days, the Commissioner believed that
Plaintiff's action was time-barred.
In response, Plaintiff argued that 20 C.F.R.
§ 422.210(c) and its five-day grace period saved her claim from
being untimely. By applying this five-day grace period, she
claimed that she was presumed to have received the ALJ's August
27 notice of its decision five days later on September 1, 2015.
As a result, she maintained that the ALJ's decision actually
became final sixty-one days later on November 1, 2015. But
because November 1 was a Sunday, Plaintiff noted that she could
not have received any notice of the Appeals Council's assumption
of jurisdiction over the case "had it done so" until the
following day on Monday, November 2. Under the impression that
this meant she could start counting from November 2, Plaintiff
calculated that her sixty-day filing limit fell on January 1,
2016, a federal holiday. The next business day after this
federal holiday was Monday, January 4, 2016, the date on which
Plaintiff filed her complaint in district court. Consequently,
and although many steps were involved, Plaintiff claimed that
her civil action was timely.
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The district court ruled against Plaintiff. It
concluded that "20 C.F.R. § 422.210 is a regulation that deals
with judicial review of initial final decisions, not final
decisions on remand," and therefore determined that Plaintiff
could not rely on the five-day grace period outlined in that
regulation. As a result, the district court sided with the
Commissioner and dismissed her complaint for being untimely
filed.
Plaintiff now appeals from the district court's
dismissal and asks us to hold that the five-day grace period
outlined in 20 C.F.R. § 422.210(c) applies to final decisions on
remand.
III.
We hold that the five-day grace period outlined in
§ 422.210(c) does not apply to final decisions on remand where
the individual does not file any written exceptions to the ALJ's
decision and the Appeals Council does not assume jurisdiction of
the case.
First, the language of § 422.210(c) itself makes this
conclusion apparent. By its terms, the five-day grace period
outlined in that regulation applies only when the individual
receives a "notice of denial of request for review . . . or
notice of [a] decision by the Appeals Council." 20 C.F.R.
§ 422.210(c). Section 422.210(c), therefore, assumes that the
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Appeals Council has taken some action informing the individual
of what it has chosen to do. And as we explained before, the
only time the Appeals Council must take such action is on an
initial application for benefits. On remand, by comparison, the
Appeals Council has no obligation to mail any notice to the
individual if it decides not to assume jurisdiction over his or
her case. For that reason, the terms of § 422.210(c) simply do
not apply to decisions on remand.
Second, and contrary to Plaintiff's suggestion, the
language of 20 C.F.R. § 404.984(c) teaches that the five-day
grace period under § 422.210(c) does not apply instead to the
individual's receipt of the ALJ's notice of decision. According
to § 404.984(c), the ALJ's decision will become final unless the
Appeals Council assumes jurisdiction of the case "[a]ny time
within 60 days after the date of the decision of the [ALJ]." 20
C.F.R. § 404.984(c) (emphasis added). The plain language of
this regulation mentions nothing about mailing or receiving the
ALJ's notice; it mentions only the date of the ALJ's notice of
decision. The date the individual receives the ALJ's notice of
decision on remand is therefore irrelevant, because under
§ 404.984(c) the date the ALJ's decision becomes final "is not
dependent on the date of plaintiffs [sic] receipt of the
decision." Harris, 2015 WL 9302910, at *1. Instead, "the 60-
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day deadline for action is the Administration's, not the
plaintiff's." Id. (emphasis added).3
Third, applying § 422.210(c) to decisions on remand is
simply unnecessary. In those situations, the individual already
has substantially more time to decide whether to seek judicial
review than he or she would on an initial application for
benefits: in addition to the sixty days under 42 U.S.C.
§ 405(g) guaranteed to any individual wishing to challenge the
Commissioner's final decision in federal court, an individual on
remand also has sixty days from the date of the ALJ's decision
under 20 C.F.R. § 404.984(c) when he or she is waiting to see if
that decision will transform into the final decision of the
Commissioner. In effect, this is extra time for the individual
to contemplate whether he or she will file a claim in federal
court should the ALJ's decision be the final decision of the
Commissioner.
For illustration, assume for the purposes of argument
that the ALJ's August 27 notice of decision on remand was
egregiously delayed in the mail and that Plaintiff actually
3 As a side note, we also find it interesting that
Plaintiff thinks the ALJ's notice of decision should be
considered as the notice from which she can benefit from the
five-day grace period under § 422.210(c), but should not be
considered as the notice from which the sixty-day time limit for
filing a federal action under § 405(g) begins to run. See supra
note 2. We are not entirely sure why the ALJ's notice of
decision would apply in one instance but not the other. It
appears that Plaintiff wants to have her cake and eat it, too.
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received it several weeks later on October 1. Without further
action by the Appeals Council, that decision would still have
become final on October 27, which would mean that Plaintiff
would have had to file an action in federal court challenging it
by December 28. In that situation, Plaintiff would still have
had nearly three months to decide whether to challenge the ALJ's
action. Even after factoring in such an egregious delay, this
is still significantly longer than the sixty-five days (sixty
days under 42 U.S.C. § 405(g) plus the five-day grace period
under 20 C.F.R. § 422.210(c)) that an individual usually has to
decide whether to challenge the Commissioner's final decision on
an initial application for benefits. Thus, giving an individual
on remand recourse to the five-day grace period outlined in
§ 422.210(c) would amount to an unnecessary windfall.
Fourth and finally, the ALJ's actual notice of
decision that was issued to Plaintiff in this case explicitly
and accurately informed her of the time limits she had to seek
judicial review in federal court. The ALJ advised Plaintiff
that "my decision will become final on the 61st day following the
date of this notice," which conforms to the requirements of 20
C.F.R. § 404.984(c). Further, the ALJ also advised Plaintiff
that "[a]fter my decision becomes final, you will have 60 days
to file a new civil action in Federal district court," which
conforms to the requirements of 42 U.S.C. § 405(g). Plaintiff
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was therefore fully informed of the time in which she could seek
judicial review.
Plaintiff attempts to seize on another portion of the
ALJ's notice of decision wherein the ALJ informed her that
"[t]he Appeals Council assumes that [she] got this notice within
5 days after the date of the notice." But the ALJ included this
statement within a section discussing the time within which
Plaintiff could file written exceptions to his decision. In
such a context, the five-day grace period under § 422.210(c)
makes perfect sense: the regulation that outlines the
requirements for filing written exceptions explicitly states
that "[t]he exceptions must be filed within 30 days of the date
you receive the decision of the [ALJ]." 20 C.F.R.
§ 404.984(b)(1) (emphasis added). Because that regulation
explicitly speaks in terms of receiving decisions, applying the
five-day grace period under § 422.210(c) presents no problems.
But Plaintiff never filed any written exceptions to the ALJ's
decision. As such, the section of the ALJ's notice of decision
referencing the five-day grace period has no application for our
present purposes.
In conclusion, Plaintiff cannot apply the five-day
grace period under 20 C.F.R. § 422.210(c) to save her civil
claim from being untimely. And although the sixty-day time
limit under 42 U.S.C. § 405(g) is subject to equitable tolling,
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see Bowen v. City of New York, 476 U.S. 467, 480 (1986),
Plaintiff has made no arguments suggesting that this doctrine
should apply to the facts of her case. We thus deem waived any
argument Plaintiff could have made to that effect.
IV.
For the reasons described above, we AFFIRM the
district court's decision and order dismissing Plaintiff's claim
as untimely.
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