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July 1, 1983


The opinion of the court was delivered by: WEINSTEIN



 Plaintiff seeks to compel the Bureau of Hearings and Appeals of the Social Security Administration to grant him an administrative hearing after denial of disability benefits. Having denied a hearing on the ground that the request for one was not timely, defendant now contends that this court lacks jurisdiction because there is no final administrative order after a hearing. For the reasons stated below, the court exercises jurisdiction and remands with directions to conduct a hearing on the timeliness issue.



 Plaintiff's struggle for disability benefits has been going on for many years. In 1971 he sustained serious, multiple injuries in an automobile accident. In April 1976, after initial denials and a series of modifications, he was granted a closed period of disability running from December 1971 through August 1975. A request for a hearing on closure of the disability period was initially dismissed because of untimeliness. Plaintiff persisted. In September 1979 he requested a re-opening of the dismissal of his action for continued benefits, offering to present new evidence. The request was referred to the state disability agency for consideration of whether additional evidence might warrant a change in the determination that plaintiff's disability ceased in 1975.

 By letter dated December 21, 1979, plaintiff was informed that his request for reconsideration had been reviewed by the state agency and the prior determination had been upheld. The letter stated that plaintiff could request a hearing before an administrative law judge "not later than 60 days from the date you receive this notice." (Emphasis added.)

 December 21, 1979 was the Friday just before the year-end holiday period. The following Monday, December 24th, was Christmas Eve and Tuesday, December 25th, was Christmas Day. The balance of that week, Wednesday, Thursday and Friday, December 26th through December 28th, comprised the only full working days between Christmas and New Year's. Monday of the following week, December 31, 1979, was New Year's Eve. Tuesday was New Year's Day.

 The court takes judicial notice that a substantial number of federal employees take vacations at this time of year and that there is a general slowing down of office operations during this period. Fed.R.Evid. 201. The court also takes judicial notice that the mails are heavily burdened during and in the aftermath of the holiday season and that delivery is sometimes slowed.

 Notices of denial of benefits upon reconsideration are mailed from the Bureau of Disability Determinations in Baltimore, Maryland. The Postal Service applies a two-day delivery standard from Baltimore to claimant's postal district 117 in Suffolk County. But the Post Office's Origin-Destination Information System reported that for the period December 29, 1979 through January 25, 1980, on-time delivery to district 117 from two-day delivery areas was down to 49%, the worst on Long Island. For the same origin-destination combination there was 76% on-time delivery from December 1, 1979 through December 28, 1979. The Post Office ordinarily aims for 91% on-time delivery from two-day delivery areas. FY '83 Goals (Internal Post Office Memorandum).

 Even at ordinary times of the year the mailing of government notices is often delayed. For example, a letter from the Office of Hearings and Appeals sent to plaintiff's counsel in this case, plaintiff's exhibit no. 1, was dated October 14, 1982, postmarked October 19th, and received October 22nd. Compare Wilson v. Watt, 703 F.2d 395, 397 (9th Cir. 1983) (Bureau of Indian Affairs letters dated March 5, 1982, terminating assistance as of April 1st, not received until after March 15th).

 When plaintiff received the December 21st notice is in dispute. Plaintiff claims he received the notice on January 15, 1980. Relying on a presumption, the government contends that the letter must have been delivered on or before December 26th.

 A request for a hearing was not filed until March 3, 1980, 73 days after the December 21st notice is dated. Had the letter been received on or after January 3, 1980, the request would have been timely. By decision of June 2, 1980, the hearing request was dismissed as untimely. Given the administrative presumption that a notice is received by a claimant five days after it is dated, the time to request a hearing expired on February 25th. (The sixtieth day from presumed day of receipt was February 24, 1980. Since that day was a Sunday, the request period was extended by one day pursuant to 20 C.F.R. § 404.3(c). See 42 U.S.C. § 416(j).)

 By order dated May 24, 1981, this court remanded the case to the Appeals Council for findings on the timeliness of plaintiff's hearing request. A hearing was held before an administrative law judge in July, 1982, at which time apparently the only evidence taken on the timeliness issue was plaintiff's testimony. A transcript of the hearing is ...

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