K. Civil Actions in Federal District Court
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K. Civil Actions in Federal District Court
1. Jurisdictional Requirements
42 U.S.C. § 405(g) governs judicial review of decisions of the Commissioner of Social Security. Judicial review must be commenced by initiating a civil action in United States District Court within sixty days of receipt of the decision of the Appeals Council.119 The Appeals Council may extend the deadline to file in Court upon a written request. However, there is legal authority that requires them to do so. Thus, an action should be commenced within the statutory time frame if at all possible. The civil action must be filed "in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia."120 This means the action must be filed where the claimant is physically living at the time the action is filed, or, in the rare case where the claimant lives outside the United States and is not located in a United States Territory, in the District Court for the District of Columbia.
Absent extraordinary circumstances, a claimant may file a civil action challenging a denial of disability benefits only after there is a "final decision . . . made after a hearing" by the Commissioner of Social Security on a claim for benefits,121 which can be made only after the claimant exhausts all available administrative remedies.122 The Commissioner's Regulations direct that in the ordinary case, where the Appeals Council affirms an ALJ's decision simply by denying review, the ALJ's decision is the "final decision" of the Commissioner.123 On the other hand, if the claimant never seeks review of the ALJ's decision by the Appeals Council, thereby failing to exhaust all available administrative remedies, there is considered to be no "final decision."124 Without a "final decision," a claimant cannot seek review in Federal District Court unless exhausting administrative remedies would be futile and exhaustion is excused given extraordinary circumstances.125 However, if the claimant seeks review by the Appeals Council and the Appeals Council grants the request for review but issues its own decision on the evidence affirming the ALJ's decision, then the decision of the Appeals Council becomes the "final decision" of the Commissioner.126
Absent a colorable constitutional violation, a claimant cannot seek judicial review under 42 U.S.C. § 405(g) in a claim where a request for an administrative hearing has been dismissed by an ALJ, even if a timely request for review of that dismissal is made by the Appeals Council, because the ALJ's dismissal is not considered to be a "final decision made after a hearing."127 Courts have found a colorable constitutional claim was asserted requiring remand in some circumstances, such as when the claimant was not adequately on notice that a hearing would be held on the case.128 The Commissioner also provides a non-exhaustive list of circumstances that may constitute good cause for failing to timely file a timely request for a hearing.129 Presumably, an ALJ's failure to consider such reasoning before issuing a dismissal based on a finding that the hearing request was not filed timely may present a colorable constitutional claim that permits a reviewing Court to consider a complaint absent a final decision made after a hearing.
Until recently, there was a split in the Circuit Courts on the issue of whether a claimant could seek judicial review under 42 U.S.C. § 405(g) in a case where an ALJ held a hearing and issued a decision on the merits, but the request for review by the Appeals Council is dismissed on the basis it was not timely filed after the ALJ's decision was issued. The Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth had all published decisions holding that when the Appeals Council dismissed a request for review of an ALJ's decision on the basis that it was untimely, there was no "final decision" subject to review by a District Court.130 Only the Seventh and Eleventh Circuits reached a different conclusion because the Appeals Council dismissal was made following a "decision made after a hearing" when the request for review was filed regardless of the timing.131 The Supreme Court resolved this split by agreeing with the reasoning of the Seventh and Eleventh Circuits in a unanimous decision that found the plain language of the statute makes clear that a dismissal from the Appeals Council on the basis that the request for review was filed late is still a final decision made after a hearing.132 Thus, a District Court does have jurisdiction under the Social Security Act to decide if the request for review was filed untimely.
2. Filing and Serving a Complaint and District Court Admission
A civil action is commenced by the filing of a complaint and summons request forms with the clerk of the District Court that has jurisdiction over the case. In every District, the complaint and the requests for summons are all now filed electronically with the Court that has jurisdiction over the case via the Case Management/Electronic Case Files (CM/ECF) system. Attorneys are now required to use the electronic filing system in every United States District Court for filing all documents after the complaint is filed. In order to use the CM/ECF system, you must be admitted to practice in the District Court where the complaint is filed. The requirement for admission is different in every Court. These requirements vary widely by District. The requirements for admission and procedures for obtaining admission can be found on the website for the District Court where the complaint will be filed, which can be located from the United States Courts website (https://www.uscourts.gov/). If you do not qualify for full-time admission, you may wish to apply for admission pro hac vice on the action. However, depending on the Court, this may require you have an attorney admitted full-time in that District to sponsor you and review all filings. Upon receipt of the complaint and request for summonses filed by a duly admitted attorney, the clerk will sign and return the summonses for service of the complaint and summons on Defendant, usually within a couple of days, and also assign the case to a United States District Judge and/or United States Magistrate Judge to handle the proceedings in Court.
The cost to file a civil action in all District Courts is $400.00 (a $350.00 filing fee and a $50.00 "administrative fee" for all new civil actions). The Court may also charge an additional fee if you are requesting admission pro hac vice in the action. A simple complaint is best so as not to limit the arguments that you may wish to raise on briefing the case, some of which will not become clear until seeing the entire record.133
Once the clerk returns signed summons, copies of the summons and complaint must be served by registered or certified mail with the civil division for the local United States Attorney's office,134 the United States Attorney General,135 and the Office of the Regional Counsel for the Commissioner of Social Security that handles litigation for the District where your client lives.136 Under the Federal Rules of Civil Procedure, service must be completed within 90 days after filing of the complaint unless the Court orders that this time be extended or Plaintiff shows good cause for the failure to timely serve Defendant.137 Otherwise, the complaint will likely be dismissed. And, because you typically have only 65 days from the date of the Appeals Council notice to file a complaint, it will be too late to refile if the summons and complaint are not appropriately served. It is also important to review the District Court's website for any standing Order in that District or standing order issued by the Judge to whom the case is assigned on Social Security appeals that may modify the deadlines for service of the summons and complaint.
3. Motion Practice and Briefing
After serving Defendant with the complaint and summons as detailed above, this is a good time to look into whether the remaining deadlines in the case are governed by a set scheduling order. Relatedly, once you have secured proof of service, you must file an affidavit of service along with evidence showing how service was made via the Court's electronic docketing system to trigger a date for the Commissioner to file the claimant's administrative record and/or answer with the Court. Scheduling orders vary widely be District and even by Judge. Many District Courts have set deadlines for litigating Social Security cases in either the Court's Local Rules or in a separate standing order located somewhere on the District Court's website (and not always easy to locate). In addition, some District and Magistrate Judges have their own set schedules that can be located under the Judge's information on the Court's website. Such orders are updated from time-to-time, so you cannot always be sure that the order you relied on in a prior case still applies to the case you are currently working on. These schedules typically describe how many days the Commissioner has to file an the certified administrative record and/or answer followed by the number of days Plaintiff and Defendant have to file motions and/or briefs in the case. Some scheduling orders will also detail a particular layout the Judge or Court wants the brief to follow and requirements on formatting the brief, such as page limits, font size, margins. These requirements may also be governed by the Local Rules and/or a Judge's individual rules, so it is important to be careful to follow the particular rules that apply to your case, Judge, and Court. If the Court or Judge does not have a set scheduling order for Social Security cases (or sometimes even if they do), the presiding Judge or the Judge's clerk...
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