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September 25, 2001


The opinion of the court was delivered by: Block, District Judge.


Plaintiff, Daniel C. Laursen ("Laursen"), brings this action pursuant to 42 U.S.C. § 405(g) seeking review of the final order of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB"). The Commissioner moves to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for failure to timely commence the action. Because the Court concludes that the Commissioner failed to provide adequate notice of its procedural rules, the motion is denied.


Laursen filed an application for DIB on September 25, 1996; the application was denied. On December 6, 1997, after de novo review by an administrative law judge ("ALJ"), Laursen was found not disabled within the meaning of the Social Security Act.

Laursen requested review of the ALJ's decision by the Appeals Council. By letter dated December 8, 1999, the Appeals Council denied the request; consequently, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. The letter advised Laursen that he had a right to commence a civil action in the United States District Court within sixty (60) days of receipt of the letter. It also gave the following notice: "[I]f you cannot file your complaint within 60 days, you may ask the Appeals Council to extend the time in which you may begin a civil action. However, the Council will only extend the time if you provide a good reason for not meeting the deadline. Your reason(s) must be set forth clearly in your request." Waxman Decl.Ex. 2.


42 U.S.C. § 405(g), which authorizes judicial review by district courts of final decisions of the Commissioner, provides in relevant part: "Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within 60 days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow." (Emphasis added). Thus, Congress has delegated to the Commissioner the power to extend the 60-day period of limitations. Pursuant to this grant of power, the Commissioner has enacted the following regulation:

Any party to the Appeal Council's decision or denial of review, or to an expedited appeals process agreement, may request that the time for filing an action in Federal district court be extended. The request must be in writing and it must give the reasons why the action was not filed within the stated time period. The request must be filed with the Appeals Council, or if it concerns an expedited appeals process agreement, with one of our offices. If you show that you had good cause for missing the deadline, the time period will be extend ed. To determine whether good cause exists, we use the standards explained in § 404.911.

20 C.F.R. § 404.982.

Section 404.911 provides a list of nine factors the Commissioner considers in making its "good cause" determination Since the Commissioner rejected plaintiff's request as untimely, the good cause issue was never reached.

Notably absent from both the Commissioner's regulation authorizing requests to extend the 60-day filing requirement and the notice that the claimant received is that the request must be made within such 60-day period. The Commissioner has obviously interpreted its extension regulation as requiring the extension request to be made within that time frame and, furthermore, is apparently of the belief that its notice sufficiently apprises a claimant wishing to seek an extension of time to file a civil action that he or she cannot do so after the 60-day period expires. These conclusions are at variance with fundamental principles of due process.

It is well established that "[a] claim of entitlement to social security benefits triggers due process protection." Rooney v. Shalala, 879 F. Supp. 252, 255 (E.D.N.Y. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Adequate notice is "an elementary and fundamental requirement of due process." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). It "must be of such nature as to reasonably convey the required information." Id. To that end, "[d]ue process requires that the [Commissioner] give claimants notice reasonably calculated to apprise them of the pendency of action which may permanently affect their rights." Rooney, 879 F. Supp. at 255 (citing Day v. Shalala, 23 F.3d 1052, 1064-66 (6th Cir. 1994)).

Neither the extension regulation nor the notice to plaintiff satisfies this bedrock principle of constitutional law. It would be a simple matter to provide that an extension must be sought within the original 60-day time frame. It is not sufficient to presume that this is implicit; it must be explicit. In any event, one may fairly debate whether such notice is implicit. Notably, the extension regulation speaks in terms of "missing the deadline," clearly suggesting that the extension request can be made after the deadline. This is reinforced by the "good cause" regulation incorporated by reference in § 404.982 which, in addition to being a source of confusion since its focus by its title and terms is geared to the administrative review process regarding the reopening or reconsideration of administrative adjudicatory determinations, speaks in terms of "missing a deadline to request review." 20 C.F.R. § 404.911(a). In that respect, it asks the claimant to set forth, inter alia, "[w]hat circumstances kept you from making the ...

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