The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff seeks a writ of mandamus pursuant to 28 U.S.C. § 1361
to prohibit the Appeals Council from reviewing and remanding the
decision of an Administrative Law Judge ("ALJ") to award him
disability benefits. The Commissioner moves to dismiss
plaintiff's complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), arguing that there is no basis for the
issuance of a writ of mandamus and that the court lacks
jurisdiction under 42 U.S.C. § 405(g) because plaintiff has
failed to exhaust his "alternative" remedies.
Plaintiff injured his neck, back and hands in an automobile
accident on September 2, 1992. On December 23, 1993, plaintiff
filed with the Social Security Administration ("SSA") a Letter of
Intent to file a disability insurance benefits application. In a
return letter dated December 27, 1993, the SSA acknowledged
receipt of plaintiff's Letter of Intent and stated that, if
plaintiff filed an application within six months, December 23,
1993 would be recognized as the filing date.
Plaintiff filed a formal application on May 23, 1994, which was
denied initially and upon reconsideration. Plaintiff filed a
hearing request in March 1995. On June 24, 1995, prior to the
hearing but upon review of the record, the ALJ issued a decision
awarding plaintiff disability benefits and stating that the date
of application was June 9, 1994. Since an application for
disability benefits is retroactive only one year from the date of
application, see 20 C.F.R. § 404.603, plaintiff was thereafter
issued a certificate for benefits dating back to June 1993.
In June 1995, plaintiff wrote to the Office of Hearings and
Appeals to request an addendum to the ALJ's decision recognizing
December 23, 1993 as the date of application. On August 24, 1995,
having received no response from the Office of Hearings and
Appeals, plaintiff wrote to the Appeals Council "appeal[ing] so
much of the ALJ decision as inadvertently failed to address the
question of protective filing."
On November 28, 1995, the ALJ issued an amended decision,
finding that plaintiff's date of application was December 23,
1993. On June 16, 1996, plaintiff received a corrected award
letter stating that his payments were to date back to March 1993
instead of June 1993.
Notwithstanding the ALJ's revised decision, on May 9, 1997, the
Council granted plaintiff's request for review, vacated the ALJ
decision and remanded the case for further consideration based on
its finding that the ALJ's decision did "not contain sufficient
rationale with specific references to the evidence of record in
support of the restrictive limitations" and did "not consider . .
. the intensity, persistence and limiting effects of the alleged
symptoms; objective medical evidence; daily activities; the
location, duration, frequency, and intensity of pain or other
symptoms; precipitating and aggravating factors; and the type,
dosage, effectiveness and side effects of medication."
Plaintiff filed this action on July 1, 1997. He claims that,
since he did not appeal the ALJ's decision on the merits but
requested only that the Council correct a technical mistake, the
Council was not entitled to review the merits of the decision
without notice, and a writ of mandamus should issue to prohibit
the Council from taking such action.
The mandamus statute, 28 U.S.C. § 1361, provides the district
courts with "original jurisdiction in any action in the nature of
mandamus to compel an officer or employee of the United States or
any agency thereof to perform a duty owed to the plaintiff." A
writ of mandamus is appropriate where the defendant owes a
plaintiff a clear, nondiscretionary duty, and all other avenues
of relief have been exhausted. Heckler v. Ringer, 466 U.S. 602,
104 S.Ct. 2013, 80 L.Ed.2d 622 (1984).
The Commissioner argues that, since plaintiff is still entitled
to complete the administrative process and then to seek review
under 42 U.S.C. § 405(g), he has failed to exhaust his other
avenues of relief. Plaintiff responds that, where a challenge is
purely procedural in nature, a claimant is exempted from the
finality requirement. He further argues that it would be futile
to await the ALJ's decision because the ALJ has no authority to
determine whether the Appeals Council erred in reviewing his
The Court of Appeals for the Second Circuit has held that
28 U.S.C. § 1361 provides jurisdiction to review otherwise
unreviewable procedural issues not related to the merits of a
claim for benefits. Ellis v. Blum, 643 F.2d 68, 78 (2d Cir.
1981). In Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.
1983), for example, the Second Circuit held that the district
court had mandamus jurisdiction to decide whether mailing a
request for review of an ALJ's decision on day 60 constitutes
timely filing within the meaning of the regulations. The court
explained: "Plaintiff's challenge is a procedural one: he seeks
to compel the Appeals Council to perform its duty with respect to
a timely request for review. . . . He has no other avenue for
relief. And his procedural dispute is unrelated to the merits of
his claim for benefits. We conclude that the district court had
mandamus jurisdiction. . . ." Id. at 868 (citations omitted).
See also Ellis, 643 F.2d at 82; Sinatra v. Heckler,
566 F. Supp. 1354, 1358 (E.D.N.Y. 1983) (finding jurisdiction where
plaintiff sought to correct an alleged procedural error that
foreclosed administrative consideration of the claim.) Here,
also, plaintiff does not ask this court to address the merits of
his disability claim; rather, he
seeks to compel the Appeals Council to perform its duty to
refrain from reviewing the merits of a claim in the absence of
notice. Since plaintiff's challenge is procedural not
substantive, there exists mandamus jurisdiction pursuant to
28 U.S.C. § 1361.
Before reaching the issue of notice, there is a question
whether the Appeals Council had the power to act on plaintiff's
appeal after the ALJ had granted the relief plaintiff had
requested. The Commissioner acknowledges that a claimant may
withdraw an appeal, pursuant to 20 C.F.R. § 404.971(a), but
argues that the Appeals Council retained the power to act in this
case because plaintiff did not formally withdraw his appeal after
obtaining relief from the ALJ. This position is unsound. Once the
agency had provided plaintiff with the relief he had requested,
the appeal was effectively over. That, as the Commissioner's
counsel has suggested, the Social Security Administration is a
huge agency in which all parts do not necessarily communicate
with each other is irrelevant. The appeal had become moot,
whether the Appeals Council knew it or not.
Assuming, arguendo, that, in the absence of a formal request
for withdrawal, the Appeals Council retained jurisdiction, the
remaining issue is whether the Appeals Council was required to
notify plaintiff of its decision to review the merits of his
claim, or whether the letter accompanying the ALJ's decision
provided sufficient notice that the Council could review the
entire record even though plaintiff had requested a mere
technical correction. 20 C.F.R. § 404.968 entitles a claimant to
request that the Appeals Council review an ALJ's decision within
60 days of receiving notice of the decision. Section 404.969
grants the Appeals Council the authority to review the entire
decision of an ALJ on its own motion, also within 60 days of the
decision. When the Council initiates review on its own motion,
Section 404.969 requires the Council to notify all parties by
mail. Section 404.973 also requires written notice "[w]hen the
Appeals Council decides to review a case."
The Commissioner argues that the Appeals Council was not
required under the C.F.R. to notify plaintiff of its intent to
review the merits of his claim. Specifically, the Commissioner
contends that the Appeals Council was entitled to review any and
all issues raised in the ALJ's decision and/or to remand the case
without notice to plaintiff because the letter accompanying the
ALJ's decision explicitly warned plaintiff that a ...