Dec 1, 2014

They Didn't Take The Dare

Judge Easterbrook
     I thought I would update this one. See below for what I wrote a few months ago. It appears that Social Security (or perhaps the Solicitor General) didn't rise to the bait. I see no sign that a petition for rehearing en banc was filed. It looks like no petition for certiorari has been filed with the Supreme Court. The time for doing so has now passed. 
     Those of us in private practice with even a little experience always advise against taking weak cases to the Court of Appeals. It's good advice for Social Security as well.

     Marilyn Boley's claim for Social Security disability benefits was denied at the reconsideration level. She was represented at the time by an attorney. Ms. Boley received the reconsideration determination. Under Social Security's regulations the determination should have been sent to her attorney but it wasn't. Ms. Boley had 60 days to request a hearing before an Administrative Law Judge (ALJ). Ms. Boley, who was preparing for a double mastectomy at the time, thought her attorney would take care of the appeal but he didn't since he didn't know she had been denied. The request for hearing was not filed until nine months after the reconsideration denial. Social Security's regulations allow for accepting an appeal that has been filed late if there is good cause. The Administrative Law Judge to whom the appeal was assigned did not think there was good cause and dismissed the appeal. The Appeals Council affirmed the dismissal of the appeal. 
     Ms. Boley filed a civil action in United States District Court to obtain review of the dismissal of her appeal. The statute governing review of Social Security cases in federal court says that review may be had only of a "final decision of the Commissioner of Social Security made after a hearing." Social Security has always argued that the civil actions like Ms. Boley's must be dismissed because there was no hearing on the dismissal. Almost always Social Security has won these cases. In Ms. Boley's case the District Court agreed with Social Security and dismissed her civil action.
     Ms. Boley appealed to the Seventh Circuit Court of Appeals and finally won. In an opinion authored by Judge Easterbrook (who was nominated by President Reagan), the Court held that the term "hearing" merely meant whatever process Social Security used to render a decision, whether or not it involved an oral hearing. The Court held that there was good cause for the late appeal and that Ms. Boley should get her ALJ hearing. In doing so, the Court overturned its own precedent in Watters v. Harris, 656 F.2d 234 (7th Cir. 1980).
     In my opinion, Social Security had this one coming. You can say that Judge Easterbrook reached to construct the statute in the way that he did -- I think that the argument made by Ms. Boley's attorney that the dismissal was a denial of due process would have been the better route for the Court to follow to achieve the same result -- but the ALJ never should have dismissed the request for hearing and the Appeals Council never should have affirmed what the ALJ did. You can say that the attorney and client should have stayed in touch better and that the attorney shouldn't have allowed nine months to pass without checking on the case and you'd be right but that doesn't change the fact that Social Security's screw up was the primary reason for the late appeal. Late appeals because of Social Security's screw ups aren't rare. The reason you seldom see them in the federal courts is that almost always good cause is found for the late appeal. What the ALJ and the Appeals Council did in this case was just wrong. Defending this in the Court of Appeals or even in District Court was asking for trouble.
     I'm sure that there are many at Social Security's Office of General Counsel (OGC) who would disagree with me and say there is plenty of precedent supporting its position in this case. OK, if you feel that way, OGC, take this case to the Solicitor General. I dare you. The Solicitor General makes the decision for the federal government on whether to ask the Supreme Court to hear a case. The Supreme Court turns down the vast majority of requests to hear cases but this isn't just any case. This is exactly the kind of case that the Supreme Court usually does agree to hear because there is now a conflict between the 7th Circuit and other Courts of Appeal on the construction of a federal statute. I think it's close to automatic for the Supreme Court to hear a case like this when it's the Solicitor General making the request. OGC, do you think this is the sort of fact situation that the Solicitor General wants to take to the Supreme Court? For that matter, OGC, is this the sort of fact situation that you want taken to the Supreme Court? The ball is in your court, OGC. What are you going to do? I know, you'll ask for rehearing en banc but after that's denied, what will you do other than curse the Appeals Council for not remanding the case for a hearing on the merits when it had a chance?

16 comments:

Anonymous said...

Ballsy attorney to take this up with the only direct precedent against him - he must have anticipated an en banc hearing in the first place. I admire counsel since it is highly unlikely EAJA will be awarded when the only precdent was against the argument made!

Anonymous said...

No claimant should rely totally on an attorney. I had an attorney who withdrew after an unfavorable decision. I prosecuted the commissioner. And received a voluntary remand and eventually an award of benefits. I do agree,it was a denial of due process,perhaps without any reasonable grounds?

The appeals council is a horrible waste of federal funding and time. What do they do all day? Deny appeal requests?

Anonymous said...

OGC already blew it on this one. It should have asked the AC for voluntary remand when the civil action was filed. But they undoubtedly relied on favorable precedent in the Circuit, as the AC itself did on the Request for Review. A fine pickle now, and rather well deserved.

Anonymous said...

Come, on, this is the attorney's fault. He should be sued for malpractice. "Ms. Boley, who was preparing for a double mastectomy at the time." If he had been doing his job, he would have filed for compassionate allowance or at least an OTR and would have had his nose in the case. What was hedoing during this dire time for his claimant. Probably waiting to build up the maximum amount he could win?? Get real. He screwed up and should be blamed.

Anonymous said...

It's the attorneys fault for not filing compassionate allowance? And sued for malpractice? Are you familiar with the standards for malpractice? Or are you one of those sheltered attorneys who works in the OGC? Your ignorance is showing.

Anonymous said...

Come on, he wasn't keepiong up with the claimant's case and missed an important date. In most big boy courts I practice in that is a real no-no..

Anonymous said...

While the original attorney erred, it is understandable--DDS is terrible at sending out denials to both claimants and attorneys. The processing times are now so long that it's impossible to predict when the denial should have been received. If you call DDS to inquire (if you can get through), you have to deal with a surly bureaucrat.

By the way, to win in a malpractice case, you have to prove not just that an error occurred, but that the case would have been won IF NOT FOR THE ERROR! Right now, there is no consistency in the system, and it is anyone's guess as to whether a case has a chance of winning or losing.

Anonymous said...

If the assertion that the claimant did not take any action on the appeal because she thought the attorney would is supported and credible, then the late filing should've been allowed. As an ALJ, I see this scenario over and over again. 99% of the time, the attorney requesting good cause for late filing makes no effort to establish this point. They merely say, "We didn't get the notice of recon" and think that suffices. Granted, it becomes harder to excuse claimant's inactivity the longer the wait, but it is entirely understandable for a claimant to conclude that it is reasonable to have to wait this long for activity on her claim.

Anonymous said...

Our experience has been that the issue is not at the DDS level but at the filed office level. The field office won't process the 1696 before forwarding the appeal to the DDS so no notice is ever generated for the rep when a decision issues.

We have started submitting a monthly list to our DDS of all claims we believe should be pending in their office and requesting status. Needless to say they aren't very happy about having to respond regarding 100 plus cases each month.

Anonymous said...

Attorney, Compassionate allowances, field offices, blah blah blah.
Here are the facts. Under Social Security's regulations, the determination should have been sent to her attorney but it was not. Under Social Security's regulations, the Appeals Council has the duty to oversee the hearings and appeals process – it did not.
The appeals council consists of 68 Administrative Appeals Judges, 42 Appeals Officers, and several hundred support personnel.
In my opinion, they are accountable to no one. For decades I have heard speakers at conferences tell how to “grab the attention” of the appeals council. What attention?
This is absurd. You let SSA get away with not sending out notices and there will be no end to it. Easterbrook does not suffer fools or inept attorneys. However, thank god he takes his job - to allow due process – seriously.

Anonymous said...

Well, my 3:00 hearing, with the claimant and his wife present, did not have an attorney present. The claimant called the rep (one of the big TV atty's) and the rep was at another hearing office conducting a hearing. Said they would be in my hearing no later than 4:30. I took another hearing and guess what, the rep never showed. The claimant and his wife both college educated were mightly p.o.'ed. Of course they had never met the guy in person. Of course they will fire the rep and firm and request that they not attempt to get fees when we do have a hearing. And of course said firm will file a fee petition and of course, I will become indignant and deny it. But what a waste of time, place, and effort. P{erhaps they should go to the BAR association to complain about the rep not showing up... Hummmmm.

Anonymous said...

5:27..

What does "reps" and TV attorneys have to do with the issue at hand?
If the firm or attorney fails to show up without good reason and it is a pattern, why not take it to the bar association?

Anonymous said...

This post is factually inaccurate. The 7th Circuit did not find there was good cause for the late filling or that the claimant gets a hearing. Read the decision, and then read the decision of the District Court if you want to know the real issues.

Anonymous said...

Did Mr. Hall read the decision? The 7th circuit very clearly did NOT find that there was good cause. It just remanded to have a finding of whether there was good cause.

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