
USCA1 Opinion

	




          December 26, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      __________________          No. 95-1496                               ISRAEL PI EIRO-SANCHEZ,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                                                                      __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                                                                      __________________                                        Before                                Cyr, Boudin and Lynch                                   Circuit Judges.                                   ______________                                                                                      __________________               Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief               ______________________     ________________________          for appellant.               Guillermo Gill, United States Attorney, Jose Vazquez Garcia,               ______________                          ___________________          Assistant  United  States  Attorney,  Arthur  J.  Fried,  General                                                _________________          Counsel for Social Security, Randolph W. Gaines, Acting Principal                                       __________________          Deputy  General  Counsel for  Social  Security,  A. George  Lowe,                                                           _______________          Acting  Associate  General   Counsel,  Litigation  Division,  and          Richard  Fox, Attorney,  Office  of the  General Counsel,  Social          ____________          Security Administration, on brief for appellee.                                                                                      __________________                                                                                      __________________                    Per Curiam.   After Israel Pi eiro-Sanchez  (or "claim-                    __________          ant") was  denied an administrative  hearing to review  a partial          denial of Social Security disability benefits, the district court          held that the hearing  denial did not constitute a  "final" deci-          sion for purposes  of 42 U.S.C.   405(g),1 and  that it therefore          lacked subject  matter jurisdiction to review the decision of the          Social Security  Administration ("SSA").  Claimant  appealed.  We          now reverse and remand for further administrative proceedings.                    In a Notice of  Award dated February 26, 1992,  the SSA          determined that claimant was entitled to benefits from a disabil-          ity onset date subsequent to that originally alleged by claimant,          and  it reduced the requested  award accordingly.   The Notice of          Award informed  the claimant:  "You have  60 days  to ask for  an          appeal.   The 60 days start  the day after you  receive this let-          ter."   The critical factual  dispute in the  case is whether the          claimant filed a timely  appeal from this decision.   The resolu-          tion of the dispute  turns on when claimant received  the Notice,          and when he requested a hearing.                    Claimant's  counsel,  Juan  Hernandez Rivera,  Esquire,          ("Hernandez"),  avers that he did  not receive the  Notice in San          Juan, Puerto Rico,  until March 9, 1992    12  days after the SSA          mailed it  from Baltimore, Maryland.2   Hernandez further asserts                                        ____________________               1Section  405(g) provides  that "any  final decision  of the          Secretary made after  a hearing" is judicially  reviewable in the          district court.  42 U.S.C.A.   405(g) (West 1991 & Supp. 1995).               2There is no indication  as to when, if ever,  claimant him-          self received the Notice.                                          2          that he requested a hearing on behalf of the claimant in a letter          dated April 28, 1992.   On the other hand, the Secretary contends          that the  deadline  for filing  an  appeal was  May 1,  and  that          claimant missed the  deadline because his hearing request was not          received in the district office in Manati, Puerto Rico, until May          7.   Consequently, in September 1992, an administrative law judge          ("ALJ") sent a  letter to Hernandez  inquiring whether there  was          "good cause" to excuse  the late filing.  In  response, Hernandez          explained that he had not received the Notice until March  9, and          that he had requested a hearing within 60 days thereafter.                      Ultimately, the ALJ issued  an order of dismissal after          determining that  claimant had failed  to show  "good cause"  for          failing to file the  hearing request on time.   Specifically, the          ALJ found that: (1) counsel's representation that he had received          the  Notice on  March 9  was not  credible because  mail normally                                       ___  ________               ________          takes no more than five days to reach Puerto Rico from Baltimore;          and (2) counsel  probably posted  the hearing request  on May  5,                           ________          rather  than April 28, since  the district office  received it on                                                             ________ __ __          May  7.3   The ALJ  thereupon dismissed  the appeal  as untimely.          ___  _          Claimant then  sought review by  the Appeals Council,  which con-          cluded  that SSA  regulations  afford no  basis for  reviewing an          ALJ's discretionary dismissal.  See infra note 5.                                           ___ _____                    District court  dismissals for  lack of  subject matter          jurisdiction are reviewed de novo.  Torres v. Secretary of Health                                    __ ____   ______    ___________________                                        ____________________               3In contrast to the affidavit the Secretary submitted to the          district  court, the order of dismissal lists May 3 as the filing          deadline.                                          3          and Human Services, 845 F.2d 1136, 1137 n.1 (1st Cir. 1988).  The          __________________          parties cite to a number of inapposite authorities addressing the          discretionary power to  deny requests  for deadline  extensions.4                                                               __________          Here,  however, the  question is  whether the  claimant's hearing          request  was filed  on time  in the  first instance.   If  so, we                              __ ____  __ ___  _____ ________          cannot doubt  that he has  been denied his  statutory right  to a          hearing.5  Absent controlling authority to  the contrary, we find          that  the district court had jurisdiction under section 405(g) to          review  the  agency decision  denying  claimant's  request for  a          hearing in the first  instance.  See Matsibekker v.  Heckler, 738                                           ___ ___________     _______          F.2d 79, 81-82 (2d Cir. 1984).                     The  ALJ proceeded  on  the assumption  that claimant's          request  for hearing in the  first instance was  late, then asked          claimant to  demonstrate "good  cause" for missing  the deadline.          The  district court  implicitly indulged  the same  assumption in          dismissing  the  complaint.   On the  other  hand, the  record on          appeal includes a date-stamped copy of the back of  the Notice of          Award,  which  claimant   contends  demonstrates  that  Hernandez          received the Notice on March 9, 1992.  The mail supervisor at the          Hernandez  law  firm submitted  an  affidavit corroborating  this          position  as well.    The Secretary  countered with  an affidavit                                        ____________________               4See 20 C.F.R.    416.1403(8) (1995) (a denial of  a request                ___          to extend  the time for filing an appeal is not reviewable by the             ______          "Appeals Council" or by the courts).                 542 U.S.C.A.    405(b)(1) (West  1991 & Supp.  1995)   (pro-          viding  "reasonable  notice and  opportunity  for  a hearing"  to          review  adverse decisions);  see also  20 C.F.R.    404.909(a)(1)                                       ___ ____          (1995)  (describing procedure  for requesting  reconsideration of          initial determination).                                          4          substantially incorporating the ALJ's "findings."                      On this record, the ALJ's determination that the appeal          was  untimely filed was unreasonable and cannot stand.  We there-          fore remand to the ALJ for further proceedings.  If the SSA seeks          a hearing to offer  evidence that, despite the clear  implication          of the  evidence before us, including the date stamp and the mail          clerk's affidavit, the  appeal was  not timely filed,  we do  not          rule out  such a hearing.6   However, the SSA may,  in the inter-          ests of  efficiency, wish  to avoid waste  of time and  effort by          foregoing such a hearing;  in this event, the ALJ  should proceed          to the merits of claimant's appeal.                    The  judgment of the district  court is vacated and the                    _______________________________________________________          case is remanded to the Secretary for further proceedings consis-          _________________________________________________________________          tent with this opinion.          ______________________                                        ____________________               6We note, however, that in addition to the evidence that the          Notice of Award was received on March  9, 1992, the claimant also          produced credible evidence  that he requested a  hearing on April          28, that is, within the deadline urged by the Secretary.  The ALJ                       ______          appeared to believe that  a hearing request is deemed  filed when          the  district office  receives it;  this was  error.   Dietsch v.                                                                 _______          Schweiker,  700 F.2d  865, 868  (2d Cir.  1983) (date  of mailing          _________          controls).   Moreover, the Secretary adverts to no evidence as to          the  processing of hearing requests in  the district office, such          as  might rule out the possibility of delay in preparing the dis-          trict office form that reflects May 7 as the date of receipt.                                          5
