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?