             United States Court of Appeals
                        For the First Circuit

No. 16-1944

                     CYNTHIA DIANE WALKER-BUTLER,

                        Plaintiff, Appellant,

                                  v.

                      NANCY A. BERRYHILL,*
   Acting Commissioner of the Social Security Administration,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF MAINE
              [Hon. D. Brock Hornby, U.S. District Judge]


                                 Before
                     Lynch, Baldock,** and Kayatta
                            Circuit Judges.


     Riley L. Fenner on brief for appellant.
     Nicole Sonia, Special Assistant United States Attorney,
Social Security Administration, Office of the General Counsel,
and Thomas E. Delahanty II, United States Attorney, on brief for
appellee.



                             May 12, 2017



     * Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill
has   been  substituted   for   Carolyn  W.   Colvin as  Acting
Commissioner of the Social Security Administration.

     **   Of the Tenth Circuit, sitting by designation.
             BALDOCK, Circuit Judge.                 Following a remand from a

federal    district        court,    the     Commissioner       of    Social     Security

issued a partially favorable decision on Plaintiff Cynthia Diane

Walker-Butler's           claim     for     Title     II     disability        benefits.

Dissatisfied,        Plaintiff       once     again        sought     review     of    the

Commissioner's decision in federal court, but the district court

dismissed her complaint as untimely.                  We consider in this appeal

whether      a     five-day       grace     period        outlined    in    20     C.F.R.

§ 422.210(c)        should    have        applied    on     remand    and   saved      her

complaint from dismissal.

                                             I.

             An     individual      seeking       Title    II   disability       benefits

from   the       Social   Security        Administration        may   obtain     judicial

review in federal district court of "any final decision of the

Commissioner of Social Security [regarding those benefits] made

after a hearing to which he was a party."                        42 U.S.C. § 405(g).

On an individual's initial application for disability benefits,

such a final decision arises in only two circumstances.                           First,

the decision of the administrative law judge ("ALJ") who held

the hearing on the individual's claim will become the final

decision     of    the    Commissioner       if     the    Appeals    Council     of   the

Social Security Administration denies the individual's request

for further review.           20 C.F.R. §§ 404.981, 422.210(a).                  Second,


                                           - 2 -
if the Appeals Council does decide to review the individual's

claim, the Appeals Council's decision becomes the final decision

of   the   Commissioner.   Id.      In   either   instance,   the   Appeals

Council must take some action—either denying review or issuing

its own decision—before the individual is considered to have

exhausted his or her administrative remedies with the Social

Security Administration and may therefore seek judicial review

in federal district court.       See id.

            But what counts as the Commissioner's final decision

differs when the individual's case has already gone to federal

court and been remanded for further proceedings.              In such an

instance, and assuming the individual does not file with the

Appeals Council any written exceptions to the ALJ's new decision

on remand, the ALJ's decision "will become the final decision of

the Commissioner after remand on [the individual's] case unless

the Appeals Council assumes jurisdiction of the case" within

sixty days after the date of the ALJ's new decision.1                   Id.




      1   If the individual does file written exceptions with the
Appeals Council, then the procedures are much more similar to an
individual's initial application for benefits:        either the
Appeals Council will (1) "conclude[] that there is no reason to
change the decision of the [ALJ]" and deny review, in which case
"the decision of the [ALJ] is the final decision of the
Commissioner after remand," 20 C.F.R. § 404.984(b)(2), or
(2) assume jurisdiction of the case based on the exceptions and
issue a "new, independent decision" that in turn functions as
the final decision of the Commissioner after remand, id.
§ 404.984(b)(3).
                                   - 3 -
§ 404.984(a), (c)          (emphases        added).        Put        differently,          the

Appeals      Council      does     not   need     to     take    action       before        the

individual may seek judicial review in federal district court.

See id.      If the Appeals Council chooses to do nothing, the ALJ's

decision      automatically         becomes       the    final     decision          of     the

Commissioner.       Id. § 404.984(d).

              These       differences        in     finality          on   an        initial

application        for    disability     benefits        and     on     remand       from     a

district court influence how we calculate the amount of time the

individual has to seek judicial review.                          In both situations,

42 U.S.C. § 405(g) applies and mandates that the individual must

file   his    or    her    civil    action      "within    sixty       days     after       the

mailing to him of notice of [the Commissioner's final] decision

or   within    such       further    time    as    the    Commissioner          of    Social

Security may allow."             42 U.S.C. § 405(g).            Even so, the specific

procedural posture of the case changes the practical effect of

this statute.




          As we explain more later on, however, the case
currently before us does not involve any decision on remand to
which written exceptions were filed with the Appeals Council.
Thus, for the sake of simplicity, when we discuss cases on
remand or the Commissioner's final decision on remand, we are
specifically referring to the situation where an individual has
not filed any written exceptions to the ALJ's decision.
Similarly, our ultimate decision today is only concerned with
situations where an individual has not filed any written
exceptions.
                                         - 4 -
              On    initial         applications       for     disability       benefits,

applying      § 405(g)         is    relatively    straightforward.                 In     that

scenario,     the    Appeals         Council,   which     must       take    some    action,

always    mails     the    individual       a   notice        of    that    action       (i.e.,

denying     review        or     issuing    its    own        decision).       20        C.F.R.

§§ 404.967, 404.981.                As such, the default rule under § 405(g)

is that the individual has sixty days from the date the notice

was mailed to bring a civil action unless the Commissioner has

given him or her more time to do so.                               And under 20 C.F.R.

§ 422.210(c), the Commissioner has done just that:                            pursuant to

this   regulation,         the      sixty-day     time    limit       starts    when        the

individual receives the notice of the Appeals Council's action.

Further,    § 422.210(c)            provides    that     "[f]or      purposes       of     this

section, the date of receipt of notice . . . shall be presumed

to be 5 days after the date of such notice, unless there is a

reasonable showing to the contrary."

              But on remand, the application of § 405(g) is a bit

trickier.      While the ALJ must mail a notice of its new decision

on   remand    to    the       individual,      see      20    C.F.R.       §§ 404.977(c),

404.984(b)(1), the Appeals Council, which has no obligation to

act, need not mail a notice to the individual when it decides

not to assume jurisdiction over the case, see id. § 404.984(d)

(omitting any language suggesting that the Appeals Council must

mail to the individual a notice of its decision not to assume

                                           - 5 -
jurisdiction).       In other words, in the situation where the ALJ's

decision   automatically       turns    into       the   final    decision    of    the

Commissioner after sixty days, no new notice is mailed to the

individual informing him or her of that transformation.                            This

makes § 405(g) somewhat awkward to apply to these situations on

remand    even   though   it    undoubtedly        does   apply:         because    the

Appeals    Council    does     not   mail      a    separate      notice     of    this

automatic final decision, how can the individual file his or her

civil action in federal court within sixty days of the mailing

of a notice?

            Obviously,    the    individual         cannot   do    so.      For    that

reason, § 405(g)'s sixty-day time limit must necessarily begin

to run from the day the ALJ's decision automatically transforms

into the final decision of the Commissioner.2                     As one district

court aptly put it, "[t]he Appeals Council's inaction triggers


     2    An argument could be made that on remand the ALJ's
notice of decision, which could potentially become the final
decision of the Commissioner after sixty days, instead functions
as the notice from which the sixty-day filing period described
in § 405(g) begins to run.    But this would make little sense.
The practical result of such an interpretation would be that the
individual would still have to wait a full sixty days to see if
the Appeals Council would assume jurisdiction of the case, 20
C.F.R. § 404.984(c), and then if it did not, he or she would
have little to no time left to seek judicial review of the ALJ's
decision in federal court. As should be quite obvious, that
would be manifestly absurd and unjust.       In any event, both
Plaintiff and the Commissioner assume on appeal that the sixty-
day filing period under § 405(g) begins to run from the date the
ALJ's decision automatically becomes the Commissioner's final
decision, and we see no reason to disturb this mutual agreement.
                                       - 6 -
the finality of the decision (without need for any mailing of a

notice of final decision), and a claimant then has sixty days

from that date to commence a civil action."                       Harris v. Colvin,

No.    3:15-cv-05575-RBL,        2015    WL    9302910,      at    *1    (W.D.    Wash.

Dec. 18, 2015).

               But what about 20 C.F.R. § 422.210(c) and its five-day

grace    period?    Can     it   somehow      apply    on    remand      to    give   an

individual an extra five days to once again seek judicial review

in federal court even though this regulation speaks in terms of

receiving a notice?          The applicability of § 422.210(c) to cases

on remand forms the basis of Plaintiff's appeal today.

                                         II.

               Plaintiff    applied     for    Title   II    disability        benefits

with    the    Social   Security       Administration.            An    ALJ   initially

denied her claim after a hearing, and the Appeals Council denied

her request for review.             Accordingly, the ALJ's decision became

the    final    decision    of   the    Commissioner        from   which      Plaintiff

sought    judicial         review      with    a   federal         district      court.

42 U.S.C. § 405(g); 20 C.F.R. §§ 404.981, 422.210.                       The district

court remanded her claim for further administrative proceedings

in December 2014.

               On August 27, 2015, while on remand, the ALJ changed

course and issued a partially favorable decision on Plaintiff's



                                        - 7 -
claim.     The ALJ mailed a copy of the notice of that decision to

Plaintiff.      In pertinent part, the notice stated the following:

       If you do not file written exceptions and the Appeals
       Council does not review my decision on its own, my
       decision will become final on the 61st day following
       the date of this notice.    After my decision becomes
       final, you will have 60 days to file a new civil
       action in Federal district court.   You will lose the
       right to a court review if you do not file a civil
       action during the 60-day period starting with the day
       my decision becomes final. . . . We will not send you
       any more notices about your right to file in Federal
       district court.

Notably, Plaintiff did not file any written exceptions to the

ALJ's decision on remand.              Similarly, the Appeals Council did

not review the ALJ's decision on its own accord.                               The ALJ's

decision therefore became the final decision of the Commissioner

once again.     20 C.F.R. § 404.984.

             Plaintiff thereafter filed a civil action in federal

district     court    on   January          4,   2016,    challenging          the   ALJ's

decision on remand.         The Commissioner, however, moved to dismiss

Plaintiff's     action     on   the    basis      that    it    was    untimely.        The

Commissioner     argued     that      the    ALJ's   decision         became    final   on

October 27, 2015, which was the first day after the Appeals

Council's sixty days to assume jurisdiction of the ALJ's August

27, 2015 notice of decision had run.                  As such, the Commissioner

calculated that Plaintiff had until only December 26, 2015—sixty

days   after    the   ALJ's     decision         became   final—to      file     a   civil

action     in   federal    court       challenging        the    decision.           Since

                                        - 8 -
December 26 was a Saturday, however, the Commissioner conceded

that Plaintiff could wait until the following Monday, December

28 to file her claim.        But because Plaintiff nonetheless missed

this deadline by several days, the Commissioner believed that

Plaintiff's action was time-barred.

            In   response,       Plaintiff       argued   that      20   C.F.R.

§ 422.210(c) and its five-day grace period saved her claim from

being untimely.       By applying this five-day grace period, she

claimed that she was presumed to have received the ALJ's August

27 notice of its decision five days later on September 1, 2015.

As a result, she maintained that the ALJ's decision actually

became final sixty-one days later on November 1, 2015.                      But

because November 1 was a Sunday, Plaintiff noted that she could

not have received any notice of the Appeals Council's assumption

of   jurisdiction     over   the   case   "had    it   done   so"   until    the

following day on Monday, November 2.             Under the impression that

this meant she could start counting from November 2, Plaintiff

calculated that her sixty-day filing limit fell on January 1,

2016,   a   federal   holiday.     The    next    business    day   after   this

federal holiday was Monday, January 4, 2016, the date on which

Plaintiff filed her complaint in district court.                 Consequently,

and although many steps were involved, Plaintiff claimed that

her civil action was timely.



                                    - 9 -
               The    district     court      ruled        against       Plaintiff.      It

concluded that "20 C.F.R. § 422.210 is a regulation that deals

with   judicial       review      of   initial          final    decisions,    not     final

decisions on remand," and therefore determined that Plaintiff

could not rely on the five-day grace period outlined in that

regulation.          As a result, the district court sided with the

Commissioner         and   dismissed        her    complaint       for    being   untimely

filed.

               Plaintiff     now       appeals         from      the   district     court's

dismissal and asks us to hold that the five-day grace period

outlined in 20 C.F.R. § 422.210(c) applies to final decisions on

remand.

                                             III.

               We hold that the five-day grace period outlined in

§ 422.210(c) does not apply to final decisions on remand where

the individual does not file any written exceptions to the ALJ's

decision and the Appeals Council does not assume jurisdiction of

the case.

               First, the language of § 422.210(c) itself makes this

conclusion apparent.              By its terms, the five-day grace period

outlined in that regulation applies only when the individual

receives    a    "notice     of    denial         of    request    for    review . . . or

notice    of    [a]    decision        by   the        Appeals    Council."    20     C.F.R.

§ 422.210(c).          Section 422.210(c), therefore, assumes that the

                                            - 10 -
Appeals Council has taken some action informing the individual

of what it has chosen to do.            And as we explained before, the

only time the Appeals Council must take such action is on an

initial application for benefits.              On remand, by comparison, the

Appeals Council has no obligation to mail any notice to the

individual if it decides not to assume jurisdiction over his or

her case.     For that reason, the terms of § 422.210(c) simply do

not apply to decisions on remand.

             Second, and contrary to Plaintiff's suggestion, the

language of 20 C.F.R. § 404.984(c) teaches that the five-day

grace period under § 422.210(c) does not apply instead to the

individual's receipt of the ALJ's notice of decision.                According

to § 404.984(c), the ALJ's decision will become final unless the

Appeals Council assumes jurisdiction of the case "[a]ny time

within 60 days after the date of the decision of the [ALJ]."                   20

C.F.R. § 404.984(c) (emphasis added).                The plain language of

this regulation mentions nothing about mailing or receiving the

ALJ's notice; it mentions only the date of the ALJ's notice of

decision.     The date the individual receives the ALJ's notice of

decision     on    remand   is   therefore       irrelevant,    because    under

§ 404.984(c) the date the ALJ's decision becomes final "is not

dependent    on     the   date   of   plaintiffs     [sic]     receipt    of   the

decision."        Harris, 2015 WL 9302910, at *1.            Instead, "the 60-



                                      - 11 -
day    deadline         for    action      is   the     Administration's,        not    the

plaintiff's."           Id. (emphasis added).3

                 Third, applying § 422.210(c) to decisions on remand is

simply unnecessary.            In those situations, the individual already

has substantially more time to decide whether to seek judicial

review      than    he    or   she   would      on     an   initial      application    for

benefits:          in    addition       to    the     sixty    days   under    42   U.S.C.

§ 405(g) guaranteed to any individual wishing to challenge the

Commissioner's final decision in federal court, an individual on

remand also has sixty days from the date of the ALJ's decision

under 20 C.F.R. § 404.984(c) when he or she is waiting to see if

that decision will transform into the final decision of the

Commissioner.           In effect, this is extra time for the individual

to contemplate whether he or she will file a claim in federal

court should the ALJ's decision be the final decision of the

Commissioner.

                 For illustration, assume for the purposes of argument

that       the   ALJ's    August     27      notice    of     decision    on   remand   was

egregiously        delayed      in   the     mail     and     that   Plaintiff   actually

       3  As a side note, we also find it interesting that
Plaintiff thinks the ALJ's notice of decision should be
considered as the notice from which she can benefit from the
five-day grace period under § 422.210(c), but should not be
considered as the notice from which the sixty-day time limit for
filing a federal action under § 405(g) begins to run. See supra
note 2.    We are not entirely sure why the ALJ's notice of
decision would apply in one instance but not the other.        It
appears that Plaintiff wants to have her cake and eat it, too.
                                             - 12 -
received it several weeks later on October 1.        Without further

action by the Appeals Council, that decision would still have

become final on October 27, which would mean that Plaintiff

would have had to file an action in federal court challenging it

by December 28.    In that situation, Plaintiff would still have

had nearly three months to decide whether to challenge the ALJ's

action.   Even after factoring in such an egregious delay, this

is still significantly longer than the sixty-five days (sixty

days under 42 U.S.C. § 405(g) plus the five-day grace period

under 20 C.F.R. § 422.210(c)) that an individual usually has to

decide whether to challenge the Commissioner's final decision on

an initial application for benefits.      Thus, giving an individual

on remand recourse to the five-day grace period outlined in

§ 422.210(c) would amount to an unnecessary windfall.

          Fourth   and   finally,   the   ALJ's   actual   notice   of

decision that was issued to Plaintiff in this case explicitly

and accurately informed her of the time limits she had to seek

judicial review in federal court.         The ALJ advised Plaintiff

that "my decision will become final on the 61st day following the

date of this notice," which conforms to the requirements of 20

C.F.R. § 404.984(c).     Further, the ALJ also advised Plaintiff

that "[a]fter my decision becomes final, you will have 60 days

to file a new civil action in Federal district court," which

conforms to the requirements of 42 U.S.C. § 405(g).         Plaintiff

                              - 13 -
was therefore fully informed of the time in which she could seek

judicial review.

            Plaintiff attempts to seize on another portion of the

ALJ's   notice     of    decision    wherein      the    ALJ    informed      her   that

"[t]he Appeals Council assumes that [she] got this notice within

5 days after the date of the notice."                But the ALJ included this

statement   within       a   section    discussing       the    time   within       which

Plaintiff could file written exceptions to his decision.                              In

such a context, the five-day grace period under § 422.210(c)

makes    perfect        sense:       the    regulation         that    outlines       the

requirements      for    filing     written      exceptions     explicitly      states

that "[t]he exceptions must be filed within 30 days of the date

you     receive     the      decision       of     the      [ALJ]."      20     C.F.R.

§ 404.984(b)(1)         (emphasis      added).       Because      that     regulation

explicitly speaks in terms of receiving decisions, applying the

five-day grace period under § 422.210(c) presents no problems.

But Plaintiff never filed any written exceptions to the ALJ's

decision.    As such, the section of the ALJ's notice of decision

referencing the five-day grace period has no application for our

present purposes.

            In    conclusion,       Plaintiff      cannot      apply   the    five-day

grace period under 20 C.F.R. § 422.210(c) to save her civil

claim from being untimely.                 And although the sixty-day time

limit under 42 U.S.C. § 405(g) is subject to equitable tolling,

                                        - 14 -
see   Bowen    v.   City   of   New   York,    476   U.S.     467,   480   (1986),

Plaintiff has made no arguments suggesting that this doctrine

should apply to the facts of her case.               We thus deem waived any

argument Plaintiff could have made to that effect.

                                       IV.

              For   the    reasons    described      above,     we   AFFIRM   the

district court's decision and order dismissing Plaintiff's claim

as untimely.




                                      - 15 -
