if service is complete upon mailing, filing is complete only on actual receipt.
Although the burden of establishing the SSA's receipt is on the claimant and his attorney, it is not an especially onerous one. Three possibilities come immediately to mind: (1) signed-for hand delivery, (2) certified mail return-receipt requested, and (3) submitting an extra copy of the filing and a self-addressed-stamped envelope and asking the Clerk to file-stamp the copy and return it to the filer. The lawyer who takes a more relaxed approach does so at the peril of her client and herself.
Courts that have found a colorable constitutional claim have frequently faced the opposite of the factual setting before us: that is, where a plaintiff asserts that he did not respond on time because he never received notice from the SSA. See e.g., Penner v. Schweiker, 701 F.2d 256 (3d Cir. 1983) (where mentally ill claimant sought an ALJ hearing too late because notice had been sent only to him and not to his attorney, claimant presented a colorable constitutional claim and the Circuit reversed the district judge's order of dismissal for lack of jurisdiction and remanded to SSA for a "good cause" determination); Aponte v. Sullivan, 823 F. Supp. 277 (E.D. Pa. 1993) (SSA's application of res judicata to bar claimant's subsequent claim, where notice may have been defective, presented a colorable constitutional claim, and court ordered parties to more fully brief the due process issue); Bellantoni v. Schweiker, 566 F. Supp. 313 (E.D.N.Y. 1983) (where claimant argued that his appeal was late because he never received the ALJ's determination, court remanded for a "good cause" hearing); Giacone v. Schweiker, 656 F.2d 1238 (7th Cir. 1981) (where pro se claimant failed to file his request for reconsideration on time and ALJ found no "good cause" for the tardiness and (1) claimant was never informed and never knew that "good cause" determination was being made, and (2) the "fabian tactics" of the local SSA office with respect to claimant probably provided a "good cause" story that the ALJ never heard, a remand to SSA was ordered for a new "good cause" determination).
Cases where a claimant never receives notice that an agency determination has been made (or is incapable of comprehending the notice) are fundamentally different from the case at bar. It would be unreasonable and perhaps unconstitutional to bar a claimant's right of appeal, without a hearing, based on a government agency's allegation that it mailed a determination, the receipt of which is denied by the addressee.
Receipt is entirely beyond the claimant's control. If Banks were asserting that he never received the SSA's determination, and the SSA were nevertheless insisting that his right to appeal had lapsed, we would be concerned. But Banks had complete control over the manner of filing. It was entirely within his power to protect his rights. The SSA cannot reasonably be expected to entertain appeals that are made two years late without some concrete proof of timely filing or a good excuse for tardiness. Banks offers neither.
The SSA itself recognizes the need for a different approach to a claimant's filing of notice with the SSA versus the SSA's mailing of a notice of determination to a claimant. Because a filer can control the manner of his own filing, 20 C.F.R. § 416.1433(b) requires that notice "must be filed at one of our offices." But the time limit for that filing does not start until receipt of notice -- "within 60 days after the date you receive notice of the previous determination" -- because a claimant clearly has no control over receipt. Id. Moreover, 20 C.F.R. § 416.1411(b)(7) considers whether "you did not receive notice of the initial determination" as an example of a circumstance where "good cause" for tardy filing may be found.
Like the Bacon court, we conclude that the claimant "received all the process that was due her, and the dismissal of her claim was unreviewable." Bacon, 969 F.2d at 1522. The majority of the courts that have faced this issue on similar facts have reached a similar conclusion. See Burbage v. Schweiker, 559 F. Supp. 1371 (N.D. Cal. 1983) (where plaintiff claimed he requested a hearing before an ALJ within 60 days of his denial of reconsideration, but the SSA did not receive it until shortly thereafter, court held: (1) the Court lacked jurisdiction over merits because there was no "final decision"; (2) the ALJ's "good cause" determination as to late filing was non-reviewable; (3) plaintiff was not constitutionally entitled to a hearing before the ALJ on the "good cause" issue); Rosario v. Schweiker, 550 F. Supp. 118 (E.D.N.Y. 1982) (where plaintiff thought she had "already filed for a hearing" before the ALJ but apparently had become confused by language difficulties and the SSA revieved nothing until after the 60 days had elapsed, court lacked jurisdiction because there was no "final decision" and no colorable constitutional claim); Sheehan v. Secretary, 593 F.2d 323 (8th Cir. 1979) (Appeals Council's denial of a "good cause" extension following claimant's tardy appeal of ALJ decision non-reviewable).
In the present case, the only relief which we would be jurisdictionally empowered to give would be a remand to the SSA for a "good cause" hearing and determination. We do not believe, however, that a remand is warranted in this case. Plaintiff's constitutional rights have simply not been implicated. Claimant promptly received notice of the SSA's October 16, 1992, determination, and was well aware that timely action was required in order to preserve his right to a hearing before the ALJ. All of the relevant arguments have already been considered (twice) by the SSA, so there is no need for a hearing. Claimant has received due process; further review would be fruitless and wasteful.
Although other courts have noted that this result may seem "harsh," Sheehan, 593 F.2d at 327
, and "disturbing," Thornton v. Bowen, 1989 WL 281920 (N.D.N.Y.), the flood of cases that the SSA faces can only be managed by the application of firm rules. Banks was clearly in the best position to establish timely filing, and it would have been easy to do so. We agree with the Sheehan court that, "the necessity to maintain orderly review requires compliance with orderly procedures," that the SSA is the arbiter of its procedures, and that a claimant's failure to abide by them will ordinarily bar judicial review. Sheehan, 593 F.2d at 327. The motion to dismiss will be granted.
JOSEPH E. IRENAS
Dated: September 9, 1996