Amicus Curiae Brief — Smith v. Berryhill, 139 S. Ct. 1285 (2019) (No. 17-1606)
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No. 17-1606
IN THE
Supreme Court of the Hnited States
RICKY LEE SMITH,
Petitioner,
Vv.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Respondent.
On Writ of Certiorari to
the United States Court of Appeals
BRIEF OF COURT-APPOINTED AMICUS CURIAE
IN SUPPORT OF THE JUDGMENT BELOW
DEEPAK GUPTA
Counsel of Record
JOSHUA MATZ
DANIEL WILF-TOWNSEND
Gupta Wessler PLLC
1900 L Street, NW, Suite 312
Washington, DC 20036
(202) 888-1741
deepak@guptawessler.com
( —————
QUESTION PRESENTED
In 1939, Congress eliminated general federal-
question jurisdiction in social security cases and instead
provided that “[njo findings of fact or decision” of the
social security agency “shall be reviewed by any ...
tribunal ... except as herein provided.” 42 U.S.C.
§ 405(h). Congress delegated “full power and authority”
to the agency to establish procedures “necessary and
appropriate” to adjudicate a large number of claims, id.
§ 40&(a), and conferred limited jurisdiction on federal
courts to review “final decision[s] of the Commissioner of
Social Security made after a hearing,” id. § 405(g).
The Social Security Administration has established a
multi-step process for adjudicating claims, culminating in
the Social Security Appeals Council. When an applicant
fails to request review by the Appeals Council “within the
stated period of time” and “the time for filing has not
been extended,” the Appeals Council “will dismiss [the]
request for review.” 20 C.F.R. § 416.1471. Under
longstanding agency regulations, “(t|he dismissal of a
request for Appeals Council review is binding and not
subject to further review.” 20 C.F.R. § 416.1472. The
Social Security Act itself does not provide for a hearing
on the timeliness of petitions for Appeals Council review.
The question presented is whether the dismissal of a
petition to the Social Security Appeals Council as
untimely is a “final decision of the Commissioner of
Social Security made after a hearing” and thus subject to
judicial review under 42 U.S.C. § 405(g).
Question presented
Table of authorities
Interest of amicus curiae
Introduction
Statement
A. Statutory and regulatory background
B.
Summary of argument
Argument.
-ii-
TABLE OF CONTENTS
= mh m &:
Facts and procedural history
Orders of the Social Security Appeals Council
dismissing requests for review as untimely are
I.
If.
Conclusion
The agency’s longstanding interpretation
reflects the best reading of the statute. ...............
A. Section 405(g) should be interpreted based
on its specific text, context, and structure. ....
B. A “final decision” is a decision on the
merits of a claim for benefits following
15
the exhaustion of agency processes. ...............20
C. A final decision “after a hearing” is a
decision on a matter on which the Social
Security Act requires a hearing. 27
D. The agency’s interpretation of § 405(g) is
also supported by longstanding practice
in many other contexts. 36
The agency’s longstanding interpretation is at
a minimum reasonable and therefore entitled
to deference.
40
47
-iii-
TABLE OF AUTHORITIES
Cases
A & K Medical Supplies v. Sebelius,
2012 WL 1556530 (C.D. Cal. May 1, 2012) ................. 38
Abramski v. United States,
134 S. Ct. 2259 (2014) 16
Alicare Hospice, Inc. v. Sebelius,
2012 WL 5246512 (E.D. Okla. Oct. 23, 2012).............. 21
Almy v. Sebelius,
2014 WL 910197 (D. Md. Mar. 7, 2014) 38
Association of Community Organizations for
Reform Now (ACORN) v. Illinois State Board
of Elections,
75 F.3d 304 (7th Cir. 1996) 21
Astrue v. Capato,
566 U.S. 541 (2012) 15, 41
Athens Community Hospital, Inc. v. Schweiker,
686 F 2d 989 (D.C. Cir. 1982) ............eccccseereceeeeeceseeeees 40
Barnhart v. Thomas,
540 U.S. 20 (20038) . 1, 5, 42, 46
Barnhart v. Walton,
535 U.S. 212 (2002) sesseeeed, 41, 43
Batterton v. Francis,
Cee 41
Bloodsworth v. Heckler,
703 F.2d 1233 (11th Cir. 1983) 45
Boley v. Colvin,
761 F.3d 808 (7th Cir. 2014) 37
-iv-
Bowen v. City of New York,
476 U.S. 467 (1986) passim
Bowen v. Massachusetts,
487 U.S. 879 (1988) 17
Brandyburg v. Sullivan,
959 F 2d 555 (5th Cir. 1992) 33, 37, 39
Brown v. Sullivan,
932 F.2d 1243 (8th Cir. 1991) 38
Califano v. Sanders,
430 U.S. 99 (1977) «sees PASSEM
Cambridge Hospital Association v. Bowen,
629 F. Supp. 612 (D. Minn. 1986) 40
Cappadora v. Celebrezze,
356 F.2d 1 (2d Cir. 1966) passim
Courtney v. Choplin,
195 F. Supp. 2d 649 (D.N.J. 2002) 38
Davis v. Richardson,
460 F 2d 772 (3d Cir. 1972) 7
Davis v. Schweiker,
665 F 2d 934 (9th Cir. 1982) 38
Doe v. Secretary of Health & Human Services,
744 F.2d 3 (1st Cir. 1984) 37
Dozier v. Bowen,
891 F.2d 769 (10th Cir. 1989) 37
Ellis v. Blum,
643 F.2d 68 (2d Cir. 1981) 33
Entergy Corp. v. Riverkeeper,
556 U.S. 208 (2009) 3, 42
Estate of Lego v. Leavitt,
244 F.. App’x 227 (10th Cir. 2007) 39
Filice v. Celebrezze,
319 F.2d 443 (9th Cir. 1963) 7,23
Giacone v. Schweiker,
656 F.2d 1238 (7th Cir. 1981) 18, 38
Gianforti v. Ribicoff,
200 F. Supp. 450 (W.D.N.Y. 1961) 7
Heckler v. Ringer,
466 U.S. 602 (1984) 3, 18, 19, 26
Heckler v. Day,
467 U.S. 104 (1984) 19
Hensley v. Califano,
601 F.2d 216 (5th Cir. 1979) 38
Herman v. Local 305, National Post Office
Mail Handlers, LIUNA, AFL-CIO,
214 F.3d 475 (4th Cir. 2000) 20
Hilmes v. Secretary of Health & Human Services,
983 F 2d 67 (6th Cir. 1993) 37
Hobby v. Hodges,
215 F.2d 754 (10th Cir. 1954) 7
.C.C. v. Brotherhood of Locomotive Engineers,
482 U.S. 270 (1987) 17
John Muir Memorial Hospital, Inc. v. Califano,
457 F. Supp. 848 (N.D. Cal. 1978) 40
Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1 (2011)
BS
Kontrick v. Ryan,
540 U.S. 443 (2004)
Lamar, Archer & Cofrin, LLP v. Appling,
138 S. Ct. 1752 (2018)
19
Latona v. Schweiker,
707 F 2d 79 (2d Cir. 1983)
Lenox Hill Hospital v. Shalala,
131 F. Supp. 2d 136 (D.D.C. 2000)
Losh v. Fabian,
592 F 3d (8th Cir. 2010)
Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015)
Mathews v. Eldridge,
17
424 U.S. 319 (1976) passim
Mazwell v. Commissioner of Social Security,
2013 WL 298267 (M.D. Fila. Jan. 25, 2013) ..............-+-
McCall v. Bowen,
832 F 2d 862 (5th Cir. 1987)
Miami General Hospital v. Bowen,
652 F. Supp. 812 (S.D. Fla. 1986)
Morris v. Berryhill,
2017 WL 600089 (M.D. Ala. Feb. 14, 2017) ...............
Nelson v. Secretary of Health & Human Services,
927 F.2d 1109 (10th Cir. 1990)
New Prime Inc. v. Oliveira,
139 S. Ct. 582 (2019)
Penner v. Schweiker,
701 F 2d 256 (3d Cir. 1983)
17
Peterson v. Califano,
631 F.2d (9th Cir. 1980) 25, 33, 37
Powerex Corp. v. Reliant Energy Services, Inc.,
551 U.S. 224 (2007) 21
QinetiQ US Holdings, Inc. & Subsidiaries v.
Commissioner of Internal Revenue,
845 F.3d 555 (4th Cir. 2017) 17
Rios v. Secretary of Health, Education & Welfare,
614 F.2d 25 (ist Cir. 1980) 25, 38
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) 16
Ross v. Blake,
136 S. Ct. 1850 (2016) 16
Russell-Murray Hospice, Inc. v. Sebelius,
724 F. Supp. 2d 43 (D.D.C. 2010) 40
Sackett v. EPA,
566 U.S. 120 (2012) 17
Saline Community Hospital Association v.
Secretary of Health & Human Services,
744 F 2d 517 (6th Cir. 1984) 40
Schweiker v. Chilicky,
487 U.S. 412 (1988) 4,5
Schweiker v. Gray Panthers,
453 U.S. 34 (1981) 4l
Sheehan v. Secretary of Health, Ed. & Welfare,
593 F.2d 323 (8th Cir. 1979) 7, 33
Shepherd v. Commissioner,
147 F.3d 633 (7th Cir. 1998) 20
Sims v. Apfel,
530 U.S. 108 (2000) passim
Smith v. Heckler,
761 F.2d 516 (8th Cir. 1985) 25
Stovic v. Railroad Retirement Board,
F.3d 500 (D.C. Cir. 2016) 3, 13, 33, 34
Stutson v. United States,
516 U.S. 168 (1996) 44
Sullivan v. Hudson,
490 U.S. 877 (1989) 18, 19, 42
Sumy v. Schlossberg,
777 F 2d 921 (4th Cir. 1985) 21
Tucker v. Sebelius,
2010 WL 2761525 (D.N.J. July 12, 2010) 38
Tudor on Behalf of Sanders v. Shalala,
F. Supp. 119 (E.D.N.Y. 1994) 38
Turner v. Bowen,
862 F 2d 708 (8th Cir. 198%) 37
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) 16, 25
Weinberger v. Salfi,
422 U.S. 749 (1975) passim
White v. Schweiker,
725 F 2d 91 (10th Cir. 1984) 37
Wright v. Colvin,
2013 WL 5567409 (M.D. Fla. Oct. 9, 2013) .................45
-ix-
Your Home Visiting Nurse Services, Inc.
v. Shalala,
525 U.S. 449 (1999) 23, 41, 46
Statutes and regulations
30 U.S.C. § 9
42 U.S.C. § 1009 9
42 U.S.C. § 138la 10
42 U.S.C. § 1395ec 9
42 U.S.C. § 1395ff 9, 38
42 U.S.C. § 1395ii 40
42 U.S.C.§ 139500(a) 2A, 39
42 U.S.C. § 139500(1(1) 40
42 U.S.C. § 1395w-114 i)
42 U.S.C. § 1395w-22 9, 39
42 U.S.C. § 1396 9
42 U.S.C. § 405(a) i, 1
42 U.S.C. § 405(g) passim
42 U.S.C. § 405(h) passim
Social Security Act Amendments of 1939,
Pub. L. No. 76-379, 53 Stat. 1360 6
20 C.F.R. § 404.900(b) 2
20 C.F.R. § 408.1050 10
20 C.F.R. § 416.1400 5,7
20 C.F.R. § 416.1403 7, 25
20 C.F.R. § 416.1448(b)(i) 35
20 C.F .R. § 416.1471
20 C.F.R. § 416.1472
20 C.F .R. §§ 416.1467-82
20 C.F .R. §§ 416.1471-72
20 C.F .R. §§ 418.3665-—70
42 C.F .R. § 405.1136
42 C.F .R. § 405.1836
42 C.F.R. §§ 405.1114-16
45 Fed. Reg. 52,078 (Aug. 5, 1980)
64 Fed. Reg. 57,687 (Oct. 26, 1999)
Legislative materials
Hearings on Social Security before the House
Committee on Ways and Means, 76th
Cong., Ist Sess. (1939) (testimony of Dr.
Arthur J. Altmeyer, Chairman of the
Social Security Board).
Report of the Social Security Board to the
President, Proposed Changes in the Social
Security Act, H.R. Doc. No. 110, 76th
Cong., Ist Sess. (1939)
Other authorities
Frank S. Bioch,
Social Security Law and Practice (2012) ...
New Court Sought for Benefit Cases,
N.Y. Times, Mar. 9, 1986
Antonin Scalia,
A Matter of Interpretation (1997)
-xi-
Social ‘ty Administrati
Annual Statistical Supplement to the Social
Security Bulletin, 2017 (March 2018)
Social Security Administration,
Fact Sheet on Social Security
United States Courts, Civil Cases Commenced,
by Nature of Suit and District, During the
12-Month Period Ending September 30, 2017
U.S. Department of Health and Human Services,
2016 CMS Statistics Reference Booklet
in
INTEREST OF AMICUS CURIAE
This Court invited Deepak Gupta “to brief and argue
this case, a8 amicus curiae, in support of the judgment
below.” Consistent with the regulations and longstanding
interpretation of the Social Security Administration, the
Sixth Circuit held below that orders of the Social
Security Appeals Council that “dismiss untimely
petitions for review” are “not final decisions reviewable
in federal court.” Pet. App. 8a.
INTRODUCTION
“(T|he Social Security hearing system is probably the
largest adjudicative agency in the western world.”
Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003). Congress
sought to design a system capable of fairly adjudicating
millions of small claims—without engulfing the federal
courts. To that end, Congress delegated “full power and
authority” to the Social Security Administration to
“establish procedures” that it deems “necessary or
appropriate” to dispose of a huge volume of claims. 42
U.S.C. § 405(a). At the same time, Congress divested the
federal courts of their ordinary federal-question
jurisdiction in social security cases, id. § 405(h), requiring
judicial review only of “final decision{s] of the Commis-
sioner of Social Security made after a hearing,” id
§ 405(g). The question presented is whether that limited
category includes dismissals of untimely petitions to the
Appeals Council (the final level within the agency).
As this Court has repeatedly recognized, § 405(g)
“does not define ‘final decision,’ instead leaving it to the
SSA to give meaning to that term through regulations.”
Sims v. Apfel, 530 U.S. 108, 106 (2000); see also Wein-
berger v. Salfi, 422 U.S. 749, 766 (1975) (“The term ‘final
decision’ is not only left undefined by the Act, but its
-2-
meaning is left to the Secretary to flesh out by regula-
tion.”). Under regulations in place for decades, claimants
must properly exhaust all three levels of review within
the agency before they receive a final decision subject to
judicial review. Thus, the Appeals Council’s dismissal of
an untimely appeal is not a “final decision” “made after a
hearing” under § 405(g). See 20 C.F .R. § 416.1472.
This long-held position embodies the best reading of
the statute. Read in the context of the overall statutory
scheme, a “final decision” is a decision on the merits of a
benefits claim following the exhaustion of agency
processes. That is exactly what Solicitor General Bork
told this Court forty years ago: “That phrase, incorporat-
ing as it does a requirement of exhaustion of administra-
tive remedies, necessarily refers to the final disposition
of a claim for benefits on its merits.” U.S. Br. 18-19, in
Califano v. Sanders, 430 U.S. 99 (1977) (No. 75-1443).
And it is how the courts, including this one, have
understood the statute: “if a claimant fails to request
review from the Council, there is no final decision and, as
a result, no judicial review.” Sims, 530 US. at 107 (citing
20 C.F.R. § 404.900(b) (“[I}f you ... do not take the next
step within the stated time period ... you will lose ...
your right to judicial review.”)). “Only a claimant who
proceeds through all three stages receives a final
decision.” Bowen v. City of New York, 476 U.S. 467, 482
(1986).
The phrase “after a hearing” likewise has a settled
meaning. Half a century ago, Judge Friendly concluded
that the most reasonable way to read it is as referring
only to matters on which a hearing is “made mandatory”
by the Social Security Act, “not to [decisions] which could
lawfully have been made without any hearing at all.”
a
Cappadora v. Celebrezze, 356 F 2d 1, 4 (2d Cir. 1966).
Adopting that reading at the government’s urging, this
Court has held that § 405(g)’s hearing requirement is not
satisfied if the claimant’s request “may be denied without
a hearing,” or where a hearing is afforded under
“regulations and not by the Social Security Act.”
Sanders, 430 U.S. at 108. Then-Judge Kavanaugh has
described this restriction in § 405(g) as “critical,” and as
Act does not require a hearing.” Stovic v. R.R. Ret. Ba.,
826 F.3d 500, 503-04 (D.C. Cir. 2016). Section 405(g),
then, is best read as limiting review to merits decisions,
after exhaustion, on which the Act requires a hearing.
That interpretation undergirds the agency’s regulations.
At a minimum, those regulations are controlling
because they reflect “a reasonable interpretation of the
statute.” Entergy Corp. v. Riverkeeper, 556 U.S. 208, 218
(2009). Although this Court’s precedents hold that
Chevron provides an “appropriate legal lens” here,
Barnhart v. Walton, 535 U.S. 212, 222 (2002), the parties
have not even attempted to show that the statute
unambiguously compels their reading. The Solicitor
General says nothing about this Court’s jurisprudence on
deference. And the petitioner does so only in passing,
contending that any ambiguity should be resolved not by
the agency but by resort to “a presumption in favor of
judicial review.” Petr. Br. 20. That presumption,
however, has no place here. See 42 U.S.C. § 405(h).
While “{iJn the best of all worlds, immediate judicial
access [for all claimants] might be desirable,” Congress
“struck a different balance,” “requiring that administra-
tive remedies be exhausted before judicial review of the
Secretary’s decisions takes place.” Heckler v. Ringer, 466
U.S. 602, 627 (1984). That balance should be respected.
”%
STATEMENT
A. Statutory and regulatory background
1. The Social Security Administration is one of the
largest agencies in the federal government, paying out
approximately $1 trillion in benefits annually—roughly
five percent of the gross domestic product of the United
States. See SSA, Fact Sheet on Social Security, at 1.' The
agency pays benefits to approximately 63 million people,
each of whom receives an average monthly payment of
$1,296. Id.* “Millions of claims are filed every year and
hundreds of thousands of claims are contested through
three levels of administrative review.” Frank S. Bloch,
Social Security Law and Practice 22 (2012).
Processing this massive number of social security
claims requires an “administrative structure” that
“affects virtually every American” and is “of a size and
extent difficult to comprehend.” Schweiker v. Chilicky,
487 U.S. 412, 424 (1988). On an annual basis, the Social
Security Administration processes approximately 5.5
million old-age and survivors’ insurance claims, 2.8
million disability insurance claims, and 2.1 million
applications for supplemental security income. See SSA,
Annual Statistical Supplement to the Social Security
Bulletin, 2017, at 2.77 (March 2018).*
The agency processes those claims “in an informal,
non-adversarial manner” designed to ensure that
claimants receive benefits whenever they are due. 20
' https://perma.ce/4U73-G2G4.
* The figure $1,296 is the average across retired workers,
disabled workers, depcu.dents, a. survivors.
* https://perma.ce/3KV5-LJXY.
-5-
C.F.R. § 416.1400(b). “There are four levels of adminis-
trative decision-making for Social Security claims—the
initial decision plus up to three stages of administrative
review—and most claims must pass through each before
a decision is subject to judicial review.” Bloch, Social
Security Law and Practice 22. Under the agency’s usual
procedures, applicantr are entitled to an initial determi-
nation, a reconsideration of that determination, a hearing
before an administrative law judge, and an appeal to the
agency’s Appeals Council. See 20 C.F.R. § 416.1400. The
result is that the Social Security Administration oversees
“an unusually protective multi-step process for the
review and adjudication of disputed claims.” Schweiker,
487 U.S. at 424.
From the agency’s inception in 1935, Congress and
the Social Security Administration have had to confront
the question of how to “handle a large number of small
claims,” balancing the need for fair adjudication with the
time and expense required for additional layers of
review. Report of the Social Security Board to the
President, Proposed Changes in the Social Security Act,
H.R. Doe. No. 110, 76th Cong., Ist Sess., 11 (1939). As
this Court has noted, given the sheer scale of the Social
Security hearing system, “(t]he need for efficiency is self-
evident.” Barnhart v. Thomas, 540 U.S. 20, 29 (2008).
Asked to provide guidance to Congress shortly after
the agency’s creation, the Board of the Social Security
Administration recommended that Congress follow the
government’s prior experience with large-scale pro-
grams, like the administration of veterans’ benefits, and
enact a law requiring the availability of judicial review in
only a small set of circumstances. /d. As the Chairman of
the Social Security Board put it, “where there is a volume
nie
of small claims,” judicial review risks “a dual administra-
tion, or duplicate administration of the law.” 3 Hearings
on Social Security before the House Committee on Ways
and Means, 76th Cong., Ist Sess., (1939) (testimony
of Dr. Arthur J. Altmeyer, Chairman of the Social
Security Board).
2. Congress implemented the Board’s recommenda-
tion with the Social Security Act Amendments of 1939,
Pub. L. No. 76-379, 53 Stat. 1360. That Act codified
provisions for the judicial review of social security
determinations that have remained in effect to this day.
See id. §§ 205(g), (h); 42 U.S.C. $§ 405(g), (h).
To avoid depleting the resources of the agency and
the judiciary, Congress completely withdrew agency
determinations from the general statutes governing
federal jurisdiction—including 28 U.S.C. § 1331. See 42
U.S.C. § 40&(h). Using sweeping language, Congress
provided that “[nJo findings of fact or decision of the
[agency] shall be reviewed by any person, tribunal, or
governmental agency except as herein provided.” /d
Congress then guaranteed judicial review only in limited
circumstances, where a claimant had exhausted all
remedies to obtain a “final decision of the [agency] made
after a hearing.” /d. § 405(g). Consistent with its vision of
linking judicial review to full compliance with the
agency’s own procedures, Congress did “not define ‘final
decision,’ instead leaving it to the SSA to give meaning to
that term through regulations.” Sims v. Apfel, 530 U.S.
108, 106 (2000).
3. For decades, the Social Security Administration
has held the view that the phrase “final decision . . . made
after a hearing” in § 405(g) “grants the district courts
jurisdiction to review only substantive determinations
-4-
denying benefits.” U.S. Br. 20, in Califano v. Sanders,
No. 75-1443. Before 1980, when this position was codified
in regulations, the agency took that stance in litigation.
The Solicitor General, for example, argued to this Court
that “final decision” in § 405(g) “necessarily refers to the
final disposition of a claim for benefits on its merits.” /d.
at 18; see also Sheehan v. Sec’y of Health, Ed. & Welfare,
593 F.2d 323, 325 (8th Cir. 1979) (explaining that 405(g)’s
“final decision” language precludes review where a claim
has been dismissed due to an untimely appeal).
In the pre-regulation period (1939-1980), this inter-
pretation of § 405(g) was also accepted by federal courts
in a variety of contexts. See, eg., Hobby v. Hodges, 215
F 2d 754, 757 (10th Cir. 1954) (res judicata); Gianforti v.
Ribicoff, 200 F. Supp. 450, 452 (W.D.N.Y. 1961) (untimely
request for review); Filice v. Celebrezze, 319 F.2d 443,
445 (9th Cir. 1963) (denial of request to reopen case);
Davis v. Richardson, 460 F 2d 772, 775 (3d Cir. 1972)
(same); Sheehan, 593 F.2d at 325 (untimely request for
review).
In 1980, the agency formally adopted regulations that
reflected the general consensus. See 45 Fed. Reg. 52078
(Aug. 5, 1980). The agency noted that “{ujnder existing
law, a person may seek judicial review only if he or she
has received an adverse initial determination and has
exhausted his or her rights to administrative review.” /d.
at 52079. The regulations therefore define the agency’s
“final decision” as the decision made after a claimant has
“completed the steps of the administrative review
process.” 20 C.F.R. § 416.1400(a)(5).
The regulations also specify a variety of procedural
decisions that do not qualify as a final decision. See, eg.,
20 C.F.R. 416.1408(a). Most relevant to this case, the
nem
regulations specify that the Appeals Council will dismiss
a request for review that is not timely filed, and that such
a dismissal “is binding and not subject to further review.”
20 C.F.R. §§ 416.1471—72; see also 45 Fed. Reg. 52,078,
52,096, 52,104 (Aug. 5, 1980). The regulations “make a
clear distinction in regard to rights of judicial review
between dismissals and determinations on the merits by
the Appeals Council.” 64 Fed. Reg. 57,687, 57,689 (Oct.
26, 1999). As the agency has noted, this distinction
reflects its established position “that an Appeals Council
dismissal is not a ‘final decision of the Commissioner of
Social Security made after a hearing” under 42 U.S.C.
§ 40&g). Id. These regulations have remained in effect
from 1980 through today.
Even as the agency’s regulations remained constant,
the number of claims it handled continued to swell,
sparking concern that federal courts were “deluged with
cases filed by people removed from the disability rolls.”
See New Court Sought for Benefit Cases, N.Y. Times,
Mar. 9, 1986. In December 1985, for instance, there were
52,795 Social Security cases pending in district courts, a
number that had more than doubled in only three years.
Id. These numbers led to proposals for the creation of a
“Social Security Court” that could handle the tens of
thousands of federal court cases generated by disputed
claims and their associated appeals. /d Ultimately,
Congress declined to create a new court, relying instead
on the existing provisions in sections 405(g) and (h) to
limit the burden on the federal courts.
4. This confidence in § 405(g) was based on decades of
experience. Throughout that period, § 405(g) had been
interpreted as guaranteeing judicial review only in
limited circumstances as described above, rather than
zs
authorizing broad review. Congress not only left § 405(g)
in place when it amended or reenacted the Social
Security Act over the years, but also expressly incorpo-
rated § 405(g) into more than a dozen additional statutes,
including:
e 42 U.S.C. § 1395ff (claims for benefits under
Medicare Parts A and B)
e 42U.S.C. § 1395w-22 (benefits under Medicare
Part C)
e 42 U.S.C. § 1395w-114 (subsidies under Medi-
care Part D)
e 42U.S.C. § 1395cec (eligibility of Medicare pro-
viders)
e 42 U.S.C. § 1396i (compensation for certain
Medicaid providers)
e 42 U.S.C. § 1009 (specia! benefits for certain
World War II veterans)
e 30USC.§ (claims by miners suffering
from black lung)
A compendium of these statutory provisions is set forth
in an appendix to this brief. As this list of provisions
indicates, § 405(g) has been incorporated into programs
requiring the government to administer massive
numbers of claims (eg., Medicaid and Medicare), and
also into more targeted benefits programs (e.g., those for
injured miners or war veterans).
Many of these programs, in turn, have regulations
implementing the term “final decision . . . after a
hearing” that mirror those of the Social Security
Administration. The Medicare Appeals Council, for
instance, similarly provides by regulation that untimely
appeals from determinations under Medicare Parts A
-10-
and B may be dismissed, and that such dismissals are
“not subject to further review.” 42 C.F.R. §§ 405.1114-
16. Similar regulations govern appeals from subsidy
determinations under Medicare Part D. See 20 C.F.R.
§§ 418.3665-70. And some regulations simply apply the
Social Security Appeals Council's rules directly,
mimicking the statutory incorporation of 42 U.S.C.
§ 40K(g). See 20 C.F.R. § 408.1050 (incorporating 20
C.F.R. §§ 416.1467-82).
The net result is that the claims processing regimes
of numerous massive federal benefits programs adopt
the understanding of 405(g) that the Social Security
Administration has adhered to for decades.
B. Facts and procedural history
1. From 1988 to 2004, petitioner Ricky Lee Smith
received disability benefits from the Social Security
Administration. J.A. 10. In 2004, he was found to be
ineligible for further benefits because he had too many
financial resources. Jd; see also 42 U.S.C. § 138la
(providing that a claimant’s entitlement to benefits
depends in part on “income and resources”). Eight years
later, he filed a new application for benefits, which was
denied initially on September 6, 2012, and denied on
reconsideration on December 6, 2012. J.A. 8. At Mr.
Smith’s request, an ALJ held a hearing regarding his
claim; the ALJ denied his application for benefits on
March 26, 2014. J.A. 23. Mr. Smith was sent a notice of
decision that told him he had 60 days to file an appeal
with the Appeals Council. J.A. 5.
The Social Security Administration does not have a
record of receiving Mr. Smith’s appeal to the Appeals
Council until months after this deadline had run, when it
-ll-
received a fax dated September 21, 2014, that contained a
copy of a letter dated April 24, 2014. See J.A. 30-38 (fax);
J.A. 24-29 (letter). A claims representative at the Social
Security Administration responded to the fax by filling
out a request for review on behalf of Mr. Smith and filing
it with the Appeals Council. J.A. 38-39. The Appeals
Council found that his claim was not timely filed and
found “no good cause to extend the time for filing”—and,
accordingly, dismissed Mr. Smith’s request for review.
J.A. 40-42. Mr. Smith, however, alleges that he timely
filed his appeal on April 24, 2014. J.A. 46.
2. Mr. Smith then filed a complaint in federal district
court. J.A. 45-47. He alleged that he timely appealed on
April 24, and that he “has exhausted all of his administra-
tive remedies.” J.A. 46. He therefore asked the court “to
review . . . the final decision of the Commissioner holding
that the Plaintiff is not entitled to a period of disability,”
alleging that the determination that he was not disabled
“was not supported by substantial evidence.” J.A. 46-47.
The district court dismissed the complaint for lack of
jurisdiction, granting the government’s motion to dismiss
on the ground that “a decision by the Commissioner to
dismiss a claimant’s untimely request for an appeal
before the Appeals Council is not a final decision subject
to judicial review” under 42 U.S.C. § 405(g). Pet. App.
25a.
3. The Sixth Circuit affirmed on the same grounds,
noting that this understanding of 405(g) is consistent
with this Court’s precedent and the interpretations of
every federal circuit court to consider the issue apart
from the Eleventh Circuit. Pet. App. 6a—7a.
4. Mr. Smith sought certiorari in this Court. While
that request for certiorari was p2nding, the Office of the
-12-
Solicitor General “reexamined the question and
concluded that its prior position was incorrect.” SG Br.
22. Although the Solicitor General states that “the
government” has changed its position, id, its brief is not
signed by any attorneys of the Social Security Admin-
istration, and amicus is unaware of any announcement
by the agency that it has reconsidered its views in light of
its own understanding of the administrative scheme.
This Court granted the petitioner’s request for certi-
orari, and appointed amicus to argue in support of the
judgment below.
SUMw.ARY OF ARGUMENT
L.A. Section 405(g) must be—and always has been—
interpreted by reference to its role in the overall
statutory plan. In passing the Social Security Act,
Congress created a massive, inquisitorial system to
process millions of disability claims. It layered many
procedural safeguards for claimants throughout the
administrative structure. To prevent federal courts from
being overrun, Congress also enacted § 405(g), which
defines the circumstances in which claimants are entitled
to judicial review. The parties give that context short
shrift, relying heavily on background presumptions
drawn from the APA. But as this Court has emphasized,
the Social Security Act contemplates a scheme of judicial
review alien to conventional APA practice. It does so to
strike a balance between fairness to applicants and
preserving judicial and administrative efficacy.
B. To that end, § 405(g) guarantees judicial review
only for decisions that are “final” and “made after a
hearing.” In context, a “final decision” is a decision on the
merits of a claim for benefits following exhaustion of
-13-
agency processes. Although “final” has many meanings,
this is the one most faithful to the statute. It is also the
reading that was advanced by Solicitor General Bork in
this Court, that is consistent with the way this Court has
described exhaustion under § 405(g) and related statutes
in the Medicare context, and that comports with the vast
majority of lower-court interpretations.
C. A final decision “after a hearing” is a decision on a
matter on which the Act requires a hearing. Fifty years
ago, Judge Friendly acknowledged that § 405(g) could be
read literally to apply to any final decision handed down
after a hearing. But, in view of the overall statutory
structure, the unique nature of the social security agency
process, and Congress’s imposition of a hearing
requirement in § 405(b), he concluded that the best
reading was narrower: the statute applies only where the
Social Security Act itself makes a hearing mandatory. At
the urging of the Solicitor General, and in express
reliance on Judge Friendly’s analysis, this Court adopted
that reading in Califano v. Sanders, 430 U.S. 99, 108
(1977). Sanders made clear that the statute does not
require review where the claimant’s contention “may be
denied without a hearing” or where the hearing is
“afforded by the Secretary’s regulations and not by the
Social Security Act.” Jd.; see also Stovic v. R.R. Ret. Bd.,
826 F.3d 500, 503-04 (D.C. Cir. 2016) (Kavanaugh, J.)
(same).
D. The agency’s interpretation of § 405(g) is not only
the best reading on its own terms, but it is also supported
by administrative practice and judicial decisions in other
contexts. In social security cases, courts have declined to
review many other procedural determinations based on
the same reading of § 405(g). And in cases arising under
-14-
other statutes that incorporate § 405(g)—including the
Medicare Act—courts have also embraced that reading.
Il. At a minimum, the agency’s longstanding inter-
pretation of § 405(g), as reflected in its regulations, is
reasonable and entitled to deference. Although this
Court has repeatedly deferred to social security
regulations, the parties largely ignore their burden to
show that the statute unambiguously forecloses the
agency’s position. But this Court has itself acknowledged
the statute’s ambiguity and the agency’s role in fleshing
out its meaning. The agency’s expertise, its practical
understanding, and the consistency and longevity of its
position also support deference here. Finally, the
benefits of requiring review for claimants are unjustified
in light of the costs for the agency and the courts—and,
potentially, even for the claimants themselves.
ARGUMENT
ORDERS OF THE SOCIAL SECURITY APPEALS
COUNCIL DISMISSING REQUESTS FOR REVIEW
AS UNTIMELY ARE NOT JUDICIALLY REVIEW-
ABLE UNDER SECTION 40{(G).
The Social Security Act confers jurisdiction on the
federal courts to review “final decision|s] of the Commis-
sioner of Social Security made after a hearing.” 42 U.S.C.
§ 40K(g). The agency and this Court have always
understood the statute to require “exhaustion of the
administrative remedies provided.” Mathews v. Eldridge,
424 US. 319, 327 (1976). “Only a claimant who proceeds
through all three stages receives a final decision from the
Secretary.” Bowen v. City of New York, 476 U.S. 467, 482
(1986).
-15-
In keeping with that understanding, the agency's
regulations have provided since 1980 that orders of the
Social Security Appeals Council dismissing requests for
review as untimely are not judicially reviewable under
40&(g). See 20 C.F.R. § 416.1472; id § 416.1408(a)(8).
These regulations are not “manifestly contrary to the
statute.” Astrue v. Capato, 566 US. 541, 558 (2012).
Under this Court’s precedents, because “(t]he SSA’s
interpretation of the relevant provisions, adhered to
without deviation for many decades, is at least reasona-
ble,” it is “entitled to this Court’s deference.” /d.
The parties fall short of carrying their burden to
show either that the statute unambiguously compels a
contrary reading or that the agency's longstanding
interpretation is unreasonable. In fact, the Social
Security Administration’s longstanding position
embodies the best reading of the Act. Section 405(g)
requires judicial review only of decisions on the merits,
where the Act provides for a hearing and the claimant
has exhausted the agency’s multi-step administrative
process. Section 405(g) does not mandate that federal
courts sit in judgment of every procedural ruling
exhaustion rules. This reading of § 405(g) is supported by
decades of decisions under both the Social Security Act
and the statutes and regulations governing other large-
A. Section 405(g) should be interpreted based on
its specific text, context, and structure.
Interpretation of § 405(g)—like the interpretation of
any statute—“begins with the text.” Ross v. Blake, 136 S.
-16-
Ct. 1850, 1856 (2016). In that enterprise, of course,
“context is everything.” A. Scalia, A Matter of Interpre-
tation 37 (1997). Courts “interpret the relevant words
not in a vacuum, but with reference to the statutory
context, structure, history, and purpose.” Abramski v.
United States, 134 S. Ct. 2259, 2267 (2014). Therefore,
“reasonable statutory interpretation must account for
both ‘the specific context in which . . . language is used’
and ‘the broader context of the statute as a whole.”
Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 312
(2014) (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997).
Section 488ig) cannet bo pouparty tatargected without
due regard for the context in which it arose: the creation
of a massive, quasi-judicial process for adjudicating
millions of small social security claims, with express
restrictions on the circumstances in which judicial review
must be allowed. Consistent with that goal, Congress
imposed two limits on judicial review. It first took the
unusual step of withdrawing the courts’ jurisdiction
under any other statutes that might apply, including 28
U.S.C. § 1331 (and, subsequently, the Administrative
Procedure Act). See 42 U.S.C. § 405(h); Weinberger v.
Salfi, 422 U.S. 749, 766 (1975). It then guaranteed only
that judicial review be available for “final decision|s} . . .
made after a hearing.” 42 U.S.C. § 405(g); see also
Mathews, 42A US. at 327 (“The only avenue for judicial
review is 42 U.S.C. § 405(g), which requires exhaustion of
the administrative remedies provided under the Act as a
jurisdictional prerequisite.”). The requirement set forth
in § 405(g) is critical: “the statute empowers district
courts to review a particular type of decision by the
Secretary, that type being those which are ‘final’ and
‘made after a hearing.” Salfi, 422 U.S. at 764.
-]7-
Here, the parties approach the statutory text as
though the only relevant context consists of “customary
usage in administrative law.” SG Br. 22; see also Petr.
Br. 14-15. On that basis, they rely heavily on presump-
tions and doctrines derived from cases decided under the
Administrative Procedure Act (APA). See SG Br. 26-29;
Petr Br. 14-17. For example, both parties place great
weight on the “hallmarks of APA finality.” Sackett v.
EPA, 566 U.S. 120, 126 (2012); see SG Br. 27-29; Petr Br.
15-16. And the petitioner repeatedly highlights the
“strong presumption’ favoring judicial review of
administrative action.” Petr. Br. 17 (quoting Mach
Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015)).
These arguments rest on a faulty premise. The Social
Security Act’s judicial-review provisions are not properly
interpreted as secretly embodying the presumptions of a
different and much broader administrative law statute
passed years later. See New Prime Inc. v. Oliveira, 139
S. Ct. 532, 539 (2019) (“[I}f judges could freely invest old
statutory terms with new meanings, we would risk
amending legislation outside the single, finely wrought
and exhaustively considered, procedure’ the Constitution
commands.”). To be sure, the APA codified certain
“preexisting principles of judicial review of agency
action.” SG. Br. 28 (citing 1.C.C. v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 282 (1987)). But “[wJhen Congress
enacted the APA to provide a general authorization for
review of agency action in the district courts, it did not
intend that general grant of jurisdiction to duplicate the
previously established special statutory procedures
relating to specific agencies.” Bowen v. Massachusetts,
487 U.S. 879, 908 (1988); see also QinetiQ US Holdings,
Inc. & Subsidiaries v. Comm’r of Internal Revenue, 845
F.3d 555, 560 (4th Cir. 2017) (“Some agency-specific
-18-
statutes . . . provide materially different procedures for
judicial review that predate the APA’s enactment.”).
Section 405(g) must therefore be interpreted by
reference to its agency-specific statutory context, not by
reference to general APA doctrines.
The structure of the Social Security Act reflects
Congress’s effort to “create an orderly, and not unduly
vexatious, system for administrative and judicial review
of the unimaginable number of decisions of claims for
retirement and disability benefits filed under the Act.”
Giacone v. Schweiker, 656 F.2d 1238, 1241 (7th Cir.
1981). This system mandates a scheme of review that is
“alien to traditional review of agency action under the
Administrative Procedure Act.” Sullivan v. Hudson, 490
U.S. 877, 885 (1989). The result Congress sought to avoid
was a potentially intolerable burden on the federal
courts, which in 1989 had merely 179 district judges,‘ if
every conceivably determinative procedural decision
reached by the agency were judicially reviewable.
Congress responded to this concern in § 405(g) and
§ 405(h), which required “that administrative remedies
be exhausted before judicial review of the Secretary's
decisions takes place.” Heckler v. Ringer, 466 U.S. 602,
627 (1984). Especially given that the inquisitorial social
security process boasts powerful protections for
claimants, this limitation on review reflected a sensible
policy choice: “[C]ases of individual hardship . . . had to
be balanced against the potential for overly casual or
premature judicial intervention in an administrative
* See Authorized Judgeships, U.S. Courts, https://perma.ce/
55EA-5M U7 (last accessed Jan. 31, 2019).
-19-
system that processes literally millions of claims every
year.” Id.
Accordingly, § 405(g) cannot be treated as though it
were a workaday administrative law requirement. “As
provisions for judicial review of agency action
go, § 405(g) is somewhat unusual.” Hudson, 490 U.S. at
885. And that “unusual” character flows from § 405(g)’s
central role in preventing the federal courts from being
swamped by disputes over the rules of the many-layered
administrative process governing the nation’s largest
social welfare program.°
complaint
jurisdiction. See U.S. Br. 24 n.12. Courts, “including this Court,”
be “less than meticulous” in their use of the word “jurisdictional,”
Kontrick v. Ryan, 540 U.S. 443, 454 (2004), and this Court has
previously referred to § 405(g)’s exhaustion requirement as both
“waivable” and “jurisdictional,” in some tension with contemporary
usage. See, e.g., Heckler v. Day, 467 U.S. 104, 111 n.14 (1984) (“The
barrier to affirmance here. The district court granted the agency’s
motion to dismiss without characterizing the dismissal as
jurisdictional. Pet. App. 26a. And although the Sixth Circuit said in
passing that “the district court lacked jurisdiction,” Pet. App. 5a,
nothing in the reasoning or substance of the judgment below was in
any way inconsistent with this Court’s holding that § 405(g)’s
exhaustion requirement is “waivable.” Mathews, 424 U.S. at 328 The
bottom line is that, under a correct interpretation of the sta ute, Mr.
Smith is not entitled to judicial review.
-20-
B. A “final decision” is a decision on the
merits of a claim for benefits following the
exhaustion of agency processes.
The first requirement imposed under § 405g) is a
“final decision” by the Commissioner of Social Security.
Relying principally on inapposite APA presumptions, the
parties contend that “final decision” encompasses
dismissals by the Commissioner for failure to exhaust
administrative remedies or comply with prescribed time
limitations. That conclusion, they assert, is supported by
the dictionary definitions of “final” and “decision.” See
SG Br. 26; Petr Br. 14. On this basis, they contend that
Mr. Smith received a “final decision,” whether on the
timeliness of his petition for Appeals Counsel review, his
entitlement to a “good cause” extension of the deadline,
or both.
1. That contention is mistaken. As this Court has
already emphasized while interpreting § 405(g), finality
is a flexible, context-specific, and “intensely practical”
concept here: “Decisions in different contexts have
emphasized that the nature of the claim being asserted
and the consequences of deferment of judicial review are
important factors in determining whether a statutory
requirement of finality has been satisfied.” Mathews, 424
U.S. at 331 n.11 (collecting cases); see also Losh v.
Falian, 592 F.3d 820, 825-26 (8th Cir. 2010) (recognizing
several “reasonable” interpretations of “finality in the
context of AEDPA’s statute of limitations”); Herman v.
Local 305, Natl Post Office Mail Handlers, LIUNA,
AFL-CIO, 214 F.3d 475, 479 (4th Cir. 2000) (“Because
there are several plausible meanings for the term ‘final
decision,’ we believe the term is ambiguous.”); Shepherd
v. Comm’r, 147 F.3d 633, 634 (7th Cir. 1998) (“There are
-21-
exceptions created by statute, rule, and judicial doctrine
to the principle that we can review only final decisions of
the district courts. And the very concept of ‘finality’
is ambiguous.”); Ass'n of Cmty. Orgs. for Reform Now
(ACORN) v. Il. State Bd. of Elections, 75 F.3d 304, 306
(7th Cir. 1996) (emphasizing the “uncertain meaning of
‘final decision’ in postjudgment proceedings”); Sumy v.
Schlossberg, TT7 F.2d 921, 923 (4th Cir. 1985) (“It is
commonly acknowledged that ‘finality’ under § 158 or its
predecessors must be interpreted in light of the special
circumstances of bankruptcy cases.”); Allcare Hospice,
Inc. v. Sebelius, No. 11-Civ-365, 2012 WL 5246512, at *2
(E.D. Okla. Oct. 23, 2012) (“The court finds the phrase
‘decision of the Board’ is sufficiently ambiguous as to
whether it includes the Board’s denial of a good cause
extension.”).°
Here, there are several imaginable interpretations of
§ 405(g). It might, as the parties suggest, refer broadly to
any conceivable adverse procedural or merits-based
determination reached by the Commissioner that causes
a claimant’s review process to terminate. That position is
supported principally by the absence of an express
textual limitation on which “final decision{s]” trigger a
right to judicial review. See Powerex Corp. v. Reliant
Energy Servs., Inc., 551 U.S. 224, 231 (2007). Or § 405(g)
* The Solicitor General relies on cases interpreting finality under
28 U.S.C. § 1291, Br. 31-22, but as this Court emphasized while
interpreting § 406(g), “certain of the policy considerations implicated
in §§ 1257 and 1291 cases are different from those that are relevant
here.” Mathews, 424 U.S. at 331 n11. The Solicitor General also
misses the main point that Mathews was making: that context—
including “the nate of the claim being asserted and the conse-
quences of defermaui of judicial review”—is crucial to interpreting
the phrase “final decision” in § 405(g). Jd
-22.
might perhaps be read as referring to some but not all
adverse determinations that cause a claimant’s review
process to terminate. Finally, as the Solicitor General
argued in 1976, the term “final decision” in § 405(g)
might “necessarily refer{] to the final disposition of a
claim for benefits on its merits” because it incorporates
“a requirement of exhaustion of administrative reme-
dies.” U.S. Br. 18, Califano v. Sanders, No. 75-1443.
2. As nearly every court addressing the issue has
concluded, General Bork’s interpretation is the most
compelling. First consider how this Court has used the
phrase “final decision” in Social Security cases while
describing the scope of judicial review under § 405(g). In
Bowen v. City of New York, the Court explained that
“{tjo obtain a final decision from the Secretary a claimant
is required to exhaust his administrative remedies by
proceeding through all three stages of the administrative
appeals process. Only a claimant who proceeds through
all three stages receives a final decision from the
Secretary ’ 476 U.S. at 482. More recently, in Sims v.
Apfel, the Court observed that “[i}f a claimant fails to
request review from the Council, there is no final
decision and, as a result, no judicial review in most cases.
In administrative-law parlance, such a claimant may not
obtain judicial review because he has failed to exhaust
administrative remedies.” 530 U.S. at 107.
To be sure, as the Solicitor General cautions, neither
Bowen nor Sims squarely addressed the specific
question at issue here. See SG Br. 34. But it is no
coincidence that both cases describe a “final decision” as
one that occurs after exhaustion of all administrative
remedies—in other words, one that addresses the merits
of a claim for benefits after a claimant has successfully
-23-
completed “all three stages” of review. Bowen, 476 U.S.
at 482. Whether understood as proof of ordinary usage,
see Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.
1752, 1759 (2018), or as evidence of judicial usage, cf
Kasten v. Saint-Gobain Performance Plastics Corp., 563
U.S. 1, 9 (2011), these decisions show that it is natural to
read “final decision” in this statute as referring to
decisions on the merits after an exhaustion of remedies.
That reading is supported by statutory structure.
Section 405 of the Social Security Act does not refer to
any extension of the 60-day time limit for seeking review
of adverse benefits determinations by ALJs. Because the
statute never requires the Commissioner to entertain
untimely requests for review, the regulations allowing
discretionary good cause extensions reflect nothing more
than a policy judgment by the agency to protect
claimants beyond statutory mandates. In these circum-
stances, it makes little sense to read “final decision” in
§ 405(g) as referring to dismissals on procedural grounds
unmentioned in the statute that exist solely by the
agency’s grace. The more natural reading is that § 405(g)
refers to the kinds of “final decisions” required by the
statute—which principally consist of decisions on the
merits of claims for benefits. Any other reading would
undermine § 405(g)’s role in the statutory plan, and
create perverse incentives, by inviting a flood of federal
cases every time the agency exercises its discretion to
create a new exhaustion rule or recognize an exemption
from an existing rule. See Filice, 319 F.2d at 445-46
(holding that “[tJhe orders made judicially reviewable
by Subsection (g) of Section 405 are orders authorized
by Subsection (b) of Section 405 which make findings of
fact and decisions as to rights of applicants for payment,
or which affirm, modify, or reverse such orders”).
-24-
This understanding of the statute is bolstered by
Your Home Visiting Nurse Serva. Inc. v. Shalata, 525
U.S. 449 (1999). That case presented the question
whether a Medicare provider may obtain judicial review
of an intermediary's refusal to reopen a finalized cost
report. Applying Chevron deference, the Court upheld
the agency’s position that such a refusal was not the kind
of “final determination,” 42 U.S.C. § 139500(a)(1)(A)(i),
that triggered a right to review. While analyzing “final
determination,” the Court emphasized that “the right of
a provider to seek reopening exists only by grace of the
Secretary,” rather than as a matter of statutory right.
Your Home Visiting Nurse Servs., 525 U.S. at 454. The
Court added that the “statutory purpose of imposing a
180-day limit on the right to seek Board review . . . would
be frustrated” by judicial review. /d. Both of those
considerations apply fully to this case.
Precedent is instructive for still another reason: it
confirms that the meaning of “final decision” in § 405(g)
is inextricably intertwined with the agency’s own
exhaustion requirements. This Court could hardly have
been clearer on that point in Salfi: “(T]he requirement of
a ‘final decision’ contained in § 405(g) is not precisely
analogous to the more classical jurisdictional require-
ments contained in such sections of Title 28 as 1331 and
1332. The term ‘final decision’ is not only left undefined
by the Act, but its meaning is left to the Secretary to
flesh out by regulation . . . The statutory scheme is thus
one in which the Secretary may specify such require-
ments for exhaustion as he deems serve his own interests
in effective and efficient administration.” 422 U.S. at 766.
One year later, the Court reaffirmed this interpretation
in Mathews: “(Under § 405(g) the power to determine
when finality has occurred ordinarily rests with the
-25-
Secretary since ultimate responsibility for the integrity
of the administrative program is his.” 424 U.S. at 330.
Then, decades after Salfi and Mathews, in an opinion by
Justice Thomas, the Court again held that “the Act does
not define ‘final decision,’ instead leaving it to the
[agency] to give meaning to that term through regula-
tions.” Sims, 530 U.S. at 106 (citing Salfi, 442 U.S. at
766).
3. Following this Court’s guidance, many other courts
have agreed that the term “final decision” mandates
judicial review only of agency decisions on the merits of
claims for benefits. As one court put it, “[F'Jinal decision,’
read in the context of the elaborate scheme for adminis-
trative determination of disability claims which precedes
it, plainly refers to a decision on the merits.” Peterson v.
Califano, 631 F 2d 628, 630 (9th Cir. 1980); accord Smith
v. Heckler, 761 F 2d 516, 518 (8th Cir. 1985) (holding that
when an “action does not address the merits of the
claim,” it “cannot be considered appealable”); Rios v.
Sec’y of Health, Ed. & Welfare, 614 F.2d 25, 26-27 (ist
Cir. 1980) (“The ‘final decision of the Secretary’ refers to
the initial substantive decision of the Secretary on the
benefits claim.”).
In sum, giving “final decision” its plain meaning
within the “context of the statute as a whole,” Utility
Air, 573 US. at 312, § 405(g) is best read as requiring
judicial review of decisions by the agency denying claims
for benefits on their merits. That reading underlies the
agency's own regulations governing access to judicial
review when requests for Appeals Council review are
dismissed as untimely. See 20 C.F.R. § 416.1472; id.
§ 416.1403. It has also been the government’s own
position for decades—including as presented to this
-26-
Court by numerous Solicitors General. See, eg., U.S. Br.
16, Sims v. Apfel, No. 98-9537 (Solicitor General
Waxman); U.S. Br. 20, Heckler v. City of New York, No.
84-1923 (Solicitor General Fried); U.S. Br. 18-19,
Califano v. Sanders, No. 75-1443 (Solicitor General
Bork). And this interpretation respects the balance
Congress struck in weighing “cases of individual
hardship” against the perils of “overly casual or
premature judicial intervention in an administrative
system that processes literally millions of claims every
year.” Ringer, 466 U.S. at 627.
In practice, because the Commissioner is authorized
to create (and to waive) exhaustion requirements that
ensure “efficient administration,” Salfi, 422 U.S. at 766,
the agency can effectively allow judicial review where
§ 405g) does not compel it. That is a standard feature of
waivable exhaustion requirements. But it is one thing to
recognize that the Commissioner can raise the ceiling on
opportunities for judicial review. It is quite another to
maintain that § 405(g) creates a floor that mandates
access to judicial review for every conceivable determina-
tion by the agency that might cause a claimants’
proceedings to terminate. That is not what § 405(g) says
and it is not what Congress intended.’
' To resist this conclusion, the Solicitor General (at 29-30) relies
on § 40&g)’s reference to § 405(a). In relevant part, § 405g)
provides: “(Where a claim has been denied by the Commissioner . . .
because of failure of the claimant or such individual to submit proof
in conformity with any regulation prescribed under subsection (a) of
this section, the court shall review only the question of conformity
with such regulations and the validity of such regulations.” From
this, the Solicitor General infers that a court “may review a
claimant’s compliance with SSA regulations regarding the timeliness
of a request for Appeals Council review of an AL.J’s decision.” SG
-27-
C. A final decision “after a hearing” is a
decision on a matter on which the Social
Security Act requires a hearing.
Even where the Commissioner has rendered a “final
-28-
for benefits. See Petr. Br. 23; SG Br. 37. These argu-
ments are based on an incorrect interpretation of
§ 405(g)— indeed, on an interpretation that this Court
has already considered and rejected.
1. That story begins in 1966, when Judge Friendly
was confronted, as a matter of first impression, with a
dispute over § 405(g)’s hearing requirement. “On a
strictly literal reading,” he conceded, “§ 40&(g) could be
interpreted as applying to any final decision of the
Secretary that was handed down after a hearing, albeit a
hearing not required by the statute.” Cappadora v.
Celebrezze, 356 F 2d 1, 4 (2d Cir. 1966). But “such an
interpretation,” he cautioned, “would be unnatural and
unsound” in light of the Act “as a whole.” Jd. The better
reading, he concluded, is that § 405(g)’s “after a hearing”
requirement must be interpreted as referring solely to
hearings required by statute.
Judge Friendly’s reasoning began with a simple
premise: Congress knew that this agency “would be
confronted with a volume of applications probably
unparalleled in federal administration.” Jd. Congress also
anticipated that “the interests of the agency and the
claimant would in most cases coincide,” since “the Social
Security Administration would be as concerned as the
applicant in the payment of a proper claim.” Jd For
these reasons, Congress did not impose the “many
requirements of notice and hearing in the usual
regulatory statute.” /d Instead, the agency “was
compelled to hold a hearing in only one instance—where
an adverse ex parte determination had been made and
timely request for a hearing was filed.” /d (citing
§ 40&(b)).
-29-
“In this context,” Judge Friendly explained, statutory
text and structure compel a narrower rather than a
broader interpretation of § 405(g). Jd “The reasonable
reading of § 405(g) ‘s that it was intended to apply to a
final decision rendered after a hearing thus made
mandatory, not to a decision which could lawfully have
been made without any hearing at all and in that event
plainly would not have come under the terms of the
section.” Jd. Judge Friendly then added that a more
expansive view of “after a hearing” could lead to perverse
outcomes: “[T]he broader reading could operate
adversely to claimants generally since if a nonmandatory
hearing would entail judicial review not otherwise
available, this might deter the agency from giving a
procedural benefit which the statute does not demand.”
Id. at 5.
2. Following Judge Friendly’s influential interpreta-
tion of § 405(g) in Cappadora, this Court decided Salft
and Mathews—the cases on which the parties principally
rely. See Petr. Br. 23-24; SG Br. 35-37. In both cases, the
Court allowed judicial review under § 405(g), even
though the claimant hadn’t exhausted remedies or
participated in a hearing on the question at issue. See
Mathews, 42A US. at 331; Salfi, 422 U.S. at 767. But in
both cases, the Court limited its holdings to cases where
a claimant presents colorable constitutional claims. This
was confirmed in Sanders, where the Court made that
restriction explicit and adopted Judge Friendly’s analysis
as the proper interpretation of “after a hearing.”
The claimants in Salfi were widows and step-children
of deceased wage earners. See id at 753. Their sole
contention was that the Act violated the Constitution by
prohibiting them from receiving insurance benefits due
-30-
to the duration of their relationship to the wage earner.
See id. Presented with this claim, the Court emphasized
that it made little sense to strictly insist on § 405(g)’s
requirements, given that the agency lacked jurisdiction
to address any constitutional arguments. See id. at 765—
68. That logic applied equally to the hearing require-
ment. See id. at 767 (explaining that a hearing “would be
futile and wasteful” where “the only issue to be resolved
is a matter of constitutional law concededly beyond [the
Secretary’s | competence to decide”). Given that requiring
exhaustion and a hearing would be pointless, and that the
Secretary had not raised any objections on this ground,
the Court held that the claimants “satisflied] the
requirements of § 405(g).” Jd.
The same principles controlled in Mathews. There, a
claimant raised a constitutional due process challenge to
the agency’s methods for assessing the existence of a
continuing disability. See 424 U.S. at 323. The Court did
not directly address §405(g)'s “after a hearing”
of Eldridge’s claim to continued benefits was a sufficient-
ly ‘final’ decision with respect to his constitutional claim
to satisfy the statutory exhaustion requirement.” /d. at
330. Invoking Salfi, the Court held that “cases may arise
where a claimant’s interest in having a particular issue
resolved promptly is so great that deference to the
agency’s judgment [on exhaustion] is inappropriate.” /d.
Mathews presented such a case because “Eldridge’s
constitutional challenge is entirely collateral to his
substantive claim of entitlement,” and because “[a] claim
to a predeprivation hearing as a matter of constitutional
right rests on the proposition that full relief cannot be
obtained at a postdeprivation hearing.” Jd at 331. On
those bases, the Court deemed § 405(g) satisfied.
-31-
3. Here, the Solicitor General reads Salfi and
Mathews as holding that “where SSA has determined
that an oral hearing is not necessary to issue a final
decision, judicial review of that decision is not barred for
lack of a hearing.” SG Br. 36. Petitioner agrees. Petr. Br.
23-24.
They are both wrong, as this Court made clear in
Sanders. There, a claimant sought judicial review of a
decision against reopening the disallowance of his claim
for benefits. See 430 U.S. at 102. Invoking Cappadora,
the Solicitor General argued that the claimant could not
satisfy § 405(g)’s hearing requirement: “Manifestly such
a refusal is not ‘made after a hearing’ within the meaning
of the statute.In using that language, Congress
evidently intended to reserve judicial review for
administrative actions that disposed of claims with
respect to which the claimant had been afforded a right
to a prior hearing. But there is no entitlement to a
hearing on a request to reopen a previously adjudicated
claim; determinations of such requests are properly
made without a hearing and not ‘after a hearing.” U.S.
Br. 17-18, Sanders, No. 75-1443 (citing, inter alia,
Cappadora, 356 F 2d at 4).
In response, the claimant in Sanders—like the par-
ties here—argued that § 405(g)’s hearing requirement
did not block his suit: “In Weinberger v. Salfi, 422 US.
749 (1975) as well as in Mathews v. Eldridge, 424 US.
319 (1976) the Court held that the District Court does
indeed have jurisdiction to review decisions of the
Secretary even though such decisions are not such as
were made after a hearing. In each of the foregoing cases
the Court held that the requirement of a hearing may be
waived.” Resp. Br. 11, Sanders, No. 75-1443.
2.
Presented with the same argument about Salfi and
Mathews that the parties advance here, this Court
squarely rejected it—and instead accepted Solicitor
General Bork’s interpretation. Citing Cappadora, the
Court first noted that “a petition to reopen a prior final
decision may be denied without a hearing.” Sanders, 430
US. at 108. This fact barred judicial review under
§ 405(g), the Court elaborated, because “the opportunity
to reopen final decisions and any hearing convened to
determine the propriety of such action are afforded by
the Secretary’s regulations and not by the Social
Security Act.” Id. (emphasis added). This reasoning
obviously rested on the premise—articulated by Judge
Friendly and briefed by Solicitor General Bork—that
§ 405(g) permits review only where the Act itself
provides for a hearing.
After completing this textual analysis of § 405(g), the
Court also cited legislative purpose: “[Ajn interpretation
that would allow a claimant judicial review simply by
filing and being denied a petition to reopen his claim
would frustrate the congressional purpose . . . to impose
a 60-day limitation upon judicial review of the Secretary’s
final decision on the initial claim for benefits.” /d.
Dispelling any doubt about the implications of its
holding, Sanders then distinguished Salfi and Mathews
on the ground that both cases had excused § 405(g)’s
exhaustion and hearing requirements solely on the basis
of constitutional avoidance. See id. at 109 (“[T hose cases
merely adhered to the well-established principle that
when constitutional questions are in issue, the availability
of judicial review is presumed, and we will not read a
statutory scheme to take the ‘extraordinary’ step of
foreclosing jurisdiction unless Congress’ intent to do so is
-33-
manifested by ‘clear and convincing’ evidence.” (citations
omitted)). Absent constitutional concerns, Sanders held
that § 405(g) applies with full force and permits judicial
review only when the Social Security Act itself provides
for a hearing on the disputed question. See id. at 107-09;
accord Ellis v. Blum, 643 F.2d 68, 75 n.6 (2d Cir. 1981)
(Friendly, J.) (“In response to the [claimant’s] argument
that Salfi and Eldridge had dispensed with the require-
ment of a hearing, the [Sanders] Court read those cases
as limited to instances in which constitutional issues were
raised and a denial of s 405g) jurisdiction would close
‘the federal forum to the adjudication of colorable
constitutional claims.” (citing Sanders, 430 U.S. at 109)).
4. Since Sanders, courts have widely recognized that
§ 405(g) limits review to final decisions reached after a
hearing required by the Act. As the Second Circuit
explained decades ago, Sanders “excluded from the
scope of [§ 405(g)] all decisions that were not required to
be preceded by a hearing, whether or not they were in
fact preceded by a hearing.” Latona v. Schweiker, 707
F.2d 79, 81 (2d Cir. 1983); see also Brandyburg v.
Sullivan, 959 F.2d 555, 560 (5th Cir. 1992); Peterson, 631
F 2d at 631; Sheehan, 593 F 2d at 325.
Then-Judge Kavanaugh adopted this reading of
§ 405(g)—and of Sanders—in Stovic., 826 F.3d 500. In
that case, a retired railroad worker (Stovic) petitioned
for review of the Railroad Retirement Board’s denial of
his request to reopen a prior decision confirming its
initial calculation of his benefits. See id. at 501-02. The
government argued that the court lacked jurisdiction,
citing Section Kf) of the Railroad Unemployment
Insurance Act, which limits review to “any final decision
of the Board.” Jd. at 502. To support its position, the
,
~34-
government cited § 405(g) of the Social Security Act. But
Judge Kavanaugh’s opinion for the court rejected this
analogy. Section 405g), he explained, differs from
Section 5(f) by virtue of its restriction to final decisions
“after a hearing.” Jd at 508. And in Sanders, “after
consulting the text of [§ 405(g)],” this Court had “held
that denials of requests to reopen were not reviewable”
because “the Socia! Security Act does not require
ahearing for requests to reopen.” /d at 503-04
(emphasis added). Since Section 5(f) lacked a comparable
restriction, Judge Kavanaugh added, the government’s
reliance on § 405(g) was misplaced.
Sanders thus forecloses the parties’ argument that
Mr. Smith satisfied § 405(g)’s hearing requirement by
following the agency’s own procedures to seek review of
untimely Appeals Council filings. See Petr. Br. 23-24; SG
Br. 28, 35-37. Because the Social Security Act did not
entitle him to a hearing on this point, he cannot invoke
§ 405(g) to obtain judicial review of the agency’s decision.
5. Nor can the petitioner prevail on his passing asser-
tion that § 405(g) was satisfied when he appeared for the
original ALJ hearing on his claim for benefits. See Petr.
Br. 23. Judicial review is confined to a “final decision of
the Commissioner of Social Security made after a
hearing.” 42 U.S.C. § 405(g). In context, the sentence
plainly refers to a “final decision” reached “after a
hearing” on that decision. It would be unnatural to read
the statute as throwing open the gates to judicial review
of any final decision, no matter how collateral, after the
ALJ holds an initial hearing on the merits of a claim for
benefits. As Judge Friendly made clear, § 405(g) was not
meant to apply to “a decision which could lawfully have
been made without any hearing at all and in that event
-35-
plainly would not have come under the terms of the
section.” Cappadora, 356 F 2d at 4. This structure would
be defeated if § 405(g) did, in fact, apply to many such
final decisions, so long as they were made after an earlier
hearing on some entirely unrelated issue.
6. As a last resort, the Solicitor General invokes
§ 405(h) to argue that “an oral hearing is not always
necessary to produce a binding and reviewable agency
decision.” U.S. Br. 36. Section 405(h) provides that “the
findings and decision of the Commissioner of Social
Security after a hearing shall be binding upon all
individuals who were parties to such hearing.” The
Solicitor General first points to Salf’s holding that
§ 405(h)’s preclusion of review outside § 405(g) applies
even when a claimant need not exhaust her remedies (or
participate in a hearing) because she has raised a
constitutional claim. The Solicitor General adds that the
Commissioner’s regulations permit ALJs to issue
decisions with binding effect under § 405(h) even when all
relevant parties consent to not holding a hearing. See SG
Br. 36; 20 C.F.R. § 416.1448(b)i).
These arguments offer no warrant for departing from
the statutory text, or from this Court’s holding in
Sanders. First, Salfi’s approval of bypassing exhaustion
and hearing requirements was based solely on constitu-
tional avoidance principles, not an interpretation of “after
a hearing” in § 405(g) (or § 405(h)). See Sanders, 430 U.S.
at 108-09. And second, the fact that parties can obtain
judicial review following consensual waiver of a statutori-
ly-authorized hearing does not prove that judicial review
is permitted in the absence of such statutory authoriza-
tion.
-36-
It therefore follows directly from Sanders that Mr.
Smith did not receive a “final decision . . . after a
hearing” regarding the timeliness of his request for
Appeals Council review (or his entitlement to a discre-
tionary good cause exception). Wholly independent from
his lack of a “final decision,” this failure to satwfy the
“after a hearing” requirement requires affirmance.
D. The agency’s interpretation of § 405(g) is also
supported by longstanding practice in many
other contexts.
The interpretation of § 405(g) set forth above is not
limited to the context of Social Security claimants
insisting upon the timeliness of their administrative
appeals or their entitlement to a good-cause extension.
On the basis of that interpretation, courts have declined
to review many other procedural determinations that
may cause a claimant’s proceeding to terminate without
an award of benefits. As we explain below, unsettling the
law would therefore create significant floodgate
concerns.
In addition, statutes for other massive benefits pro-
grams—including, most notably, Medicare and Medi-
caid—expressly incorporate § 405(g) into their provisions
for judicial review. In cases arising from these statutes,
courts have relied upon the interpretation of § 405(g)
accepted below but challenged here by the parties. These
cases underscore both the reasonableness of the
judgment below and the size and complexity of the
regulatory apparatuses that a reversal would disrupt.
1. Social Security
There are several additional grounds on which a
social security proceeding can terminate that have long
x 2
been understood to fall outside § 405(g) for the same
reasons set forth above.
a. Dismissal of requests for an ALJ hearing when
request is untimely or claimant fails to appear: As the
Solicitor General acknowledges, accepting his position
would resolve a circuit split on this issue. See SG Br. 37.
But the split is quite lopsided. Only the Seventh Circuit
has expressly held that § 405(g) permits judicial review
under these circumstances. See Boley v. Colvin, 761 F.3d
803, 805 (7th Cir. 2014). Most other courts have held to
the contrary, relying in whole (or in part) on the
interpretation of § 405(g) above. See Doe v. Sec’y of
Health & Human Servs., 744 F.2d 3, 4 (ist Cir. 1984)
(“final decision”); Penner v. Schweiker, 701 F.2d 256,
259-60 (3d Cir. 1983) (“after a hearing”); accord Hilmes
v. Sec’y of Health & Human Servs., 983 F 2d 67, 70 (6th
Cir. 1993); Brandyburg, 959 F2d at 559; White v.
Schweiker, 725 F 2d 91, 94 (10th Cir. 1984).
6. Denying extension of time to seek judicial re-
view: Every court to have considered the question has
held that § 405(g) prohibits judicial review of agency
decisions denying requests for an extension uf the time to
file a civil action in federal court. Many of these decisions
rest on the interpretation of “after a hearing” set forth
above. See, e.g., Dozier v. Bowen, 891 F 2d 769, 771 (10th
Cir. 1989); Turner v. Bowen, 862 F.2d 708, 709-10 (8th
Cir. 1988); McCall v. Bowen, 832 F 2d 862, 863 (5th Cir.
1987); Peterson v. Califano, 631 F 2d 628, 630 (9th Cir.
1980).
c. Denying extension of time to seek reconsidera-
“permits such a request to be denied without a hearing,”
-38-
the court dismissed under § 405(g). See Giacone, 656
F 2d at 1243.
d. Dismissing based on administrative res judica-
ta: This is one of the most common, non-merits-based
grounds for dismissal of social security claims. Again,
many courts have relied on the analysis set forth above to
hold that such dismissals are not reviewable under
§ 405%(g). See, eg., Brown v. Sullivan, 932 F.2d 1243,
1245-46 (8th Cir. 1991); Rios, 614 F.2d at 26-27; accord
Nelson v. Sec’y of Health & Human Servs., 927 ¥ 2d
1109, 1111 (10th Cir. 1990); Davis v. Schweiker, 665 F 2d
934, 935 (9th Cir. 1982); Hensley v. Califano, 601 F.2d
216, 216 (5th Cir. 1979) (per curiam)
2. Medicare
a. Dismissal of untimely petitions for administra-
tive review of Medicare Part A and B benefits
determinations: In disputes arising under Medicare
Part A and Part B, judicial review of the “final decision”
by the Secretary of Health and Human Services is
authorized “as is provided in [§ 405(g)|.” 42 U.S.C.
§ 1395ff(b)(1)(a). Relying on the interpretation of “final
decision” set forth above, many courts have held that
when relevant administrative actors within the Medicare
system dismiss petitions for review as untimely, those
dismissals do not constitute “final decision[s]” authoriz-
ing judicial review. See, eg., Almy v. Sebelius, No. 09-
Civ-0255, 2014 WL 910197, at *8 (D. Md. Mar. 7, 2014); A
& K Med. Supplies v. Sebelius, No. 10-Civ-9453, 2012
WL 1556530, at *4 (C.D. Cal. May 1, 2012); Courtney v.
Choplin, 195 F. Supp. 2d 649, 656 (D.N.J. 2002); see also
Tucker v. Sebelius, No. 07-Civ-2230, 2010 WL 2761525, at
*6 (D.N.J. July 12, 2010); Tudor on Behalf of Sanders v.
Shalala, F. Supp. 119, 124 (E.D.N.Y. 1994).
39-
6. Dismissal of untimely petitions for administra-
tive review of Medicare Part C benefits and over-
charging determinations: Medicare Part C plans allow
private insurance companies to contract with the federal
government to provide Medicare benefits to enrollees.
Under 42 U.S.C. § 1395w-22(gX5), an enrollee who
believes that it did not “receive any health service to
which [it] is entitled,” or who believes it was overcharged,
is entitled to a hearing before HHS to the same extent as
provided in § 405(b) (so long as the amount in controver-
sy is $1,000 or more). Such enrollees are also “entitled to
judicial review of the Secretary's final decision as
provided in [§ 405(g)].” In an unpublished opinion, the
Tenth Cirevit has concluded that federal courts lack
jurisdiction under § 405(g) to review determinations
under § 1395w-22(g)(5) where the agency determined
that a Medicare Part C beneficiary lacked good cause for
failing to appear at an ALJ hearing. See Estate of Lego v.
Leavitt, 244 F. App’x 227, 231 (10th Cir. 2007). For this
conclusion, it relied on the Fifth Circuit’s decision in
Brandyburg, 959 F 2d at 559, which in turn relied on the
interpretation of § 405(g) set forth above.
c. Untimely benefits appeals to the Provider Reim-
bursement Review Board: Much like the Social Security
Act, the Medicare Act provides that benefits decisions
will be made in the first instance by an agency-
designated officer (fiscal intermediaries), with a right of
appeal to an agency board (the Provider Reimbursement
Review Board). See 42 U.S.C. § 139500(a)(1)(A).
Requests for a Board hearing must be filed “within 180
days after notice of the intermediary’s final determina-
tion.” Jd. § 139500(a)(3). The Board may extend this time
limit “upon a good cause showing.” 42 C.F .R. § 405.1836.
Judicial review of Board decisions is limited to “any final
-A40-
decision of the Board.” 42 U.S.C. § 139500(f)(1); see also
42 U.S.C. § 1395ii (providing that § 405(h) of the Social
Security Act also applies with respect to the Medicare
Act).
Most courts to have considered the question have
held that when a provider files an untimely petition for
review and the Board dismisses it under § 139500(a)(3),
the Board dismissal does not constitute a “final decision”
authorizing judicial review under § 139500(f)(1). See
Saline Cmty. Hosp. Ass'n v. Sec’y of Health & Human
Servs., 744 F.2d 517, 520 (6th Cir. 1984); Athens Cmty.
Hosp., Inc. v. Schweiker, 686 F 2d 989, 994 & n.4 (D.C.
Cir. 1982); Russell-Murray Hospice, Inc. v. Sebelius, 724
F. Supp. 2d 43, 50 (D.D.C. 2010); John Muir Mem’
Hosp., Inc. v. Califano, 457 F. Supp. 848, 853 (N.D. Cal.
1978). Similarly, most courts have held that the denial of
a good cause extension of the 180-day deadline is not a
“final decision” authorizing judicial review under
§ 139500(f)(1). See Lenox Hill Hosp. v. Shalala, 131 F.
Supp. 2d 136, 141 (D.D.C. 2000) (collecting cases); see
also Miami Gen. Hosp. v. Bowen, 652 F. Supp. 812, 814
(S.D. Fla. 1986); Cambridge Hosp. Ass'n v. Bowen,
F’. Supp. 612, 615-20 (D. Minn. 1986).
The interpretation of “final decision” underlying
these decisions mirrors the interpretation of “final
decision” in § 405(g) set forth above. If this Court accepts
the parties’ arguments here, it may also invite appeals
challenging timeliness rulings by the Board.
Il. The agency’s longstanding interpretation is at a
minimum reasonable and therefore entitled to
deference.
As explained above, the best reading—based on the
text, context, and structure of the statute, this Court’s
-Al-
precedents, and the interpretation of parallel provi-
sions—is that § 405(g) does not confer a right of judicial
review where the agency deems a claimant’s Appeals
Council petition to be untimely (and unworthy of a
discretionary good cause extension of the time limit). A
dismissal on that ground is neither a “final decision” nor
one “made after a hearing” under § 405&(g). At a
minimum, however, “{t]he SSA’s interpretation of
Under this Court’s precedents, the agency’s reading
“governs if it is a reasonable interpretation of the
statute—not necessarily the only possible interpretation,
nor even the interpretation deemed most reasonable by
-42-
the courts.” Entergy, 556 US. at 218; see also Thomas,
540 U.S. at 26 (“(Wlhen a statute speaks clearly to the
issue at hand, we must give effect to the unambiguously
expressed intent of Congress, but when the statute is
silent or unambiguous, we must defer to a reasonable
1. The parties here make virtually no attempt to carry
that burden. The Solicitor General makes no mention of
Chevron deference, does not address any potential
ambiguity in § 405(g), and contends only that the
43-
§ 405g) is context-specific and “intensely practical.”
Mathews, 424 US. at 331 n.11. The statute gives the
agency “complete authority” to specify its meaning “as
[it] deems serve [its] own interests in effective and
efficient administration.” Salfi, 422 U.S. at 765-66. A
more prototypical case for deference is hard to imagine.
As for the “after a hearing” requirement, the agen-
cy’s long-held reading is the one that no less an authority
than Judge Friendly pronounced “the reasonable
reading,” while also candidly acknowledging that the
statute “could be interpreted as applying to any final
decision of the Secretary that was handed down after a
hearing.” Cappadora, 356 F2d at 4. The agency's
“reasonable reading” is also the same one adopted by
Solicitor General Bork, this Court in Sanders, numerous
lower courts, and, most recently, then-Judge Kavanaugh
in Stovic. The parties would be hard pressed to contend
that this same reading of the statute is both unreasona-
ble and unambiguously foreclosed by Social Security Act.
The parties likewise ignore the significance of the
agency’s unbroken consistency in articulating its reading
of the statute. “This Court will normally accord particu-
lar deference to an agency interpretation of longstanding
duration.” Walton, 535 U.S. at 220 (deferring to an
interpretation of the Social Security Act maintained by
the agency for four decades). Here, the relevant
regulation has the force of law, was the product of notice-
and-comment rulemaking, has been on the books since
1980, has engendered reliance by all but one circuit to
consider it, and was preceded by decades of consistent
Solicitors General in this Court. Given that background,
it should make no difference that the Solicitor General
-44-
(but not the agency’s lawyers) have now decided to
switch positions. See Stutson v. United States, 516 U.S.
163, 187 (1996) (Stevens, J. concurring) (“(Sjurely a
decent concern for those litigating against the Govern-
ment and for our lower court judges should induce us to
disregard, for Chevron purposes, a litigating position
first expressed at the certiorari stage.”). The proper way
to change a regulation produced by notice-and-comment
rulemaking is through notice-and-comment rulemak-
ing—not an abrupt change of position in this Court.
2. The case for affording deference to the agency’s
decades-old interpretation of the Social Security Act is
bolstered by its understanding of the practical adminis-
trative realities of operating what may be the largest
administrative claims system in the western hemisphere.
Even under the existing restrictive regime, social
security claimants filed 19,020 cases in federal district
courts in Fiscal Year 2017—by the far the largest
category of cases filed each year." (For comparison, 2,021
tort actions, 622 prisoner civil rights cases, and 12,628
prisoner motions to vacate sentences (the second highest
category) were filed during the same period.)
The sheer number of claims that could enter the
courts as a result of a reversal in this case would pose an
institutional cost—both to the agency and to the
judiciary. According to the Solicitor General’s own
estimates, the Social Security Administration processes
“thousands are dismissed each year for failure to adhere
to a regulatory timing requirement.” SG Br. 43. And
* See United States Courts, Civil Cases Commenced, by Nature
of Swit and District, During the 12-Month Period Ending
September 30, 2017, https-//perma.ce/AXES-Y7Z34.
~AB-
these estimates do not even include the dozen other
programs that incorporate § 405(g), and that have been
interpreted in pari materia, which would open the door
even wider. In fiscal year 2015, for example, the
Department of Health and Human Services and its
contractors processed over 213 million Medicare Part A
claims and over one billion Medicare Part B claims. See
HHS, 2016 CMS Statistics Reference Booklet, at 42.° It is
precisely to avoid burdening the federal courts with such
cases that Congress enacted sections 405(g) and 405(h) in
the first place, and then patterned the judicial-review
mechanisms for other high-volume claims processes on
§ 405g).
As a practical matter, there is not much benefit to
be had for claimants in comparison to the costs of
permitting judicial review of the Appeals Council’s
timeliness determinations. The Eleventh Circuit’s
experience in allowing such claims since Bloodsworth v.
Heckler, 703 F.2d 1233 (11th Cir. 1983), demonstrates
that the cases permitted by the parties’ interpretation of
§ 405(g) are unlikely to raise the kinds of legal questions
that require federal judicial involvement. Instead, they
are likely to be bound up in simple, specific factual issues
(such as whether a letter was mailed by a certain date) or
in wholly discretionary agency decisions (such as
whether a claimant had good cause to get an extension).
See, e.g., Morris v. Berryhill, No. 1:15-Civ-495, 2017 WL
600089, at *1 (M.D. Ala. Feb. 14, 2017); Wright v. Colvin,
No. 3:12-Civ-1007, 2013 WL 5567409, at *5—*7 (M.D. Fla.
Oct. 9, 2013); Maxwell v. Comm’r of Soc. Sec., No. 6:12-
Civ-5, 2013 WL 298267, at *3 (M.D. Fla. Jan. 25, 2013).
These questions are well within the competence of the
* https://perma.ce/9LAD-9LZW.
-Ab6-
Social Security Administration and are unlikely to
benefit materially from an additional layer of review in
federal court, as compared to the offsetting judicial and
administrative costs of allowing all of these cases to be
filed. See Thomas, 540 US. at 29 (“Perfection in
processing millions of such claims annually is impossi-
ble.”).
This is particularly so in light of the applicable stand-
ards of review. As the Solicitor General acknowledges,
given these standards, “[i}t should be a rare case in which
a claimant can plausibly maintain that SSA’s finding of
untimeliness is not supported by substantial evidence, or
that SSA abused its discretion in refusing to grant a
good-cause exception.” SG Br. 44. For the rare cases
where the agency has manifestly transgressed its
regulations, mandamus may be available. See Your Home
Visiting Nurse Servs., 525 U.S. at 456 n.3 (reserving this
question). In the mine run of social security cases,
however, when a claimant is “alleging mere deviation
from the applicable regulations in a particular adminis-
trative proceeding,” the courts have no special compe-
tence to add to the “agency’s expertise in administering
its own regulations.” Bowen, 476 U.S. at 484-85.
On the other hand (and perhaps counterintuitively), it
may well disadvantage claimants if the judgment below is
reversed. As Judge Friendly pointed out many years ago,
“the broader reading could operate adversely to
claimants generally since if a nonmandatory hearing
would entail judicial review not otherwise available, this
might deter the agency from giving a procedural benefit
which the statute does not demand.” Cappadora, 356
F 2d at 5. Wholly apart from the institutional costs to the
affected agencies and courts, it is possible that the
-AT-
broader rule urged by the parties here would, if adopted,
actually hurt more claimants than it would help.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
DEEPAK GUPTA
Counsei of Record
JOSHUA MATZ
DANIEL WILF-TOWNSEND
Gupta Wessler PLLC
1900 L Street, NW, Suite 312
Washington, DC 20036
(202) 888-1741
deepak @guptawessler.com
February 4, 2019
APPENDIX OF STATUTES INCORPORATING
42 USC. § 405g)
Unemployment compensation for certain
former federal employees (5 U.S.C. § 8503(b))
Compensation to workers for injury caused by
import competition as provided in the Trade
Act of 1974 for states with no agreement with
the Department of Labor (19 U.S.C. § 2312(b)) .......1
Claims for benefits for miners and spouses of
deceased miners suffering from black lung (30
U.S.C. § 923(b))
Disability determinations for old—age,
survivors, and disability insurance benefits (42
US.C. § 421(d))
Special benefits for certain World War II
veterans (42 U.S.C. 1009(b))
Exclusions of certain individuals and entities
from Medicare for misconduct. (42 U.S.C. §
1320a-7(f)(1))
Exclusion of representatives and health care
providers convicted of violations from
participation in social security programs (42
US.C. § 1320b-(e))
Review of sanctions and penalties regarding
quality and compliance for health care
practitioners or other persons regarding (42
US.C. § 1320ce-5(b)(4))
10.
11.
12.
13.
14.
15.
16.
Supplemental security income benefit
entitlement (42 U.S.C. § 1383(c)(3)) 4
Administrative review of Medicare Part C
benefits and overcharging determinations (42
US.C. § 1395w-22(g)(5)) 4
Eligibility for low-income subsidies for
Medicare Part D (42 U.S.C. § 1395w-
114(a)(3)(B)iv)(IID) 5
Medicare eligibility for providers of services
(42 U.S.C. § 1395ec(h\(1)(A)) 5
Medicare Part A and B benefits
determinations (42 U.S.C. § 1395ff(b)(1)(A)) ............6
Administrative review of Medicare services
and overcharging determinations for enrollees
belonging to HMOs and competitive medical
plans (42 U.S.C. § 1395mm(c)(5)(B)) 6
Medicare payment eligibility for dialysis
facilities (42 U.S.C. § 1395rr(g)(3)) 7
Medicaid payment eligibility for intermediate
care facilities for the mentally disabled (42
U.S.C. § 1396i(b)(2)) 8
-la-
1. Unemployment compensation for certain former
federal employees (5 U.S.C. § 8503(b))
5 U.S.C. § 8503(b) provides:
A Federal employee whose claim for compensation un-
der subsection (a) of this section is denied is entitled to a
fair hearing under regulations prescribed by the Secre-
tary. A final determination by the Secretary with respect
to entitlement to compensation under this section is sub-
ject to review by the courts in the same manner and to the
same extent as is provided by section 405(g) of title 42.
2. Compensation to workers for injury caused by im-
port competition as provided in the Trade Act of
1974 for states with no agreement with the Depart-
ment of Labor (19 U.S.C. § 2312(b))
19 U.S.C. § 2312(b) provides:
A final determination under subsection (a) of this sec-
tion with respect to entitlement to program benefits under
subpart B of this part is subject to review by the courts in
the same manner and to the same extent as is provided by
section 405(g) of Title 42.
3. Claims for benefits for miners and spouses of de-
ceased miners suffering from black lung (30 U.S.C.
§ 923(b))
30 U.S.C. § 923(b) provides:
(b) .. . The provisions of sections 204, 205(a), (b), (d),
(e), (g), (h), @), (k), @, and (n), 206, 207, and 208 of the So-
cial Security Act shall be applicable under this part with
respect to a miner, widow, child, parent, brother, sister, or
dependent, as if benefits under this part were benefits un-
der Title II of such Act.
4. Disability determinations for old—age, survivors,
and disability insurance benefits (42 U.S.C. §
421(d))
42 U.S.C. § 421(d) provides:
Any individual dissatisfied with any determination un-
der subsection (a), (b), (c), or (g) shall be entitled to a hear-
ing thereon by the Commissioner of Social Security to the
same extent as is provided in section 405(b) of this title
with respect to decisions of the Commissioner of Social Se-
curity, and to judicial review of the Commissioner’s final
decision after such hearing as is provided in section 405(g)
of this title.
5. Special benefits for certain World War II veterans
(42 U.S.C. 100%b))
42 U.S.C. 1009(b) provides:
The final determination of the Commissioner of Social
Security after a hearing under subsection (a)(1) shall be
subject to judicial review as provided in section 405(g) of
this title to the same extent as the Commissioner of Social
Security’s final determinations under section 405 of this
title.
6. Exclusions of certain individuals and entities
from Medicare for misconduct. (42 U.S.C. § 1320a-
7D())
42 U.S.C. § 1320a-7(f)(1) provides:
Subject to paragraph (2), any individual or entity that
is excluded (or directed to be excluded) from participation
under this section is entitled to reasonable notice and op-
portunity for a hearing thereon by the Secretary to the
-3a-
same extent as is provided in section 405(b) of this title,
and to judicial review of the Secretary’s final decision after
such hearing as is provided in section 405(g) of this title,
except that, in so applying such sections and section 405(1)
of this title, any reference therein to the Commissioner of
Social Security or the Social Security Administration shal!
be considered a reference to the Secretary or the Depart-
ment of Health and Human Services, respectively.
7. Exclusion of representatives and health care pro-
viders convicted of violations from participation in
social security programs (42 U.S.C. § 1320b-6(e))
42 U.S.C. § 1320b-6(e)(1) and (2) provide:
(1) Any individual who is excluded (or directed to be
excluded) from participation under this section is entitled
to reasonable notice and opportunity for a hearing thereon
by the Commissioner to the same extent as is provided in
section 405(b) of this title, and to judicial review of the
Commissioner’s final decision after such hearing as is pro-
vided in section 405(g) of this title.
(2) The provisions of section 405(h) of this title shall
apply with respect to this section to the same extent as it
is applicable with respect to subchapter II.
8. Review of sanctions and penalties regarding qual-
ity and compliance for health care practitioners or
other persons regarding (42 U.S.C. § 1320c-5(b)(4))
42 U.S.C. § 1320c-5(b)(4) provides:
Any practitioner or person furnishing services de-
scribed in paragraph (1) who is dissatisfied with a deter-
mination made by the Secretary under this subsection
shall be entitled to reasonable notice and opportunity for
-4a-
a hearing thereon by the Secretary to the same extent as
is provided in section 405(b) of this title, and to judicial re-
view of the Secretary’s final decision after such hearing as
is provided in section 405(g) of this title.
9. Supplemental security income benefit entitlement
(42 U.S.C. § 1383(c)(3))
42 U.S.C. § 1383(c)(3) provides:
The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be sub-
ject to judicial review as provided in section 405(g) of this
title to the same extent as the Commissioner’s final deter-
minations under section 405 of this title.
10. Administrative review of Medicare Part C benefits
and overcharging determinations (42 U.S.C.
§ 1395w-22(g)(5))
42 US.C. § 1395w-22(g)(5) provides:
An enrollee with a Medicare+Choice plan of a Medi-
care + Choice organization under this part who is dissatis-
fied by reason of the enrollee’s failure to receive any
health service to which the enrollee believes the enrollee
is entitled and at no greater charge than the enrollee be-
lieves the enrollee is required to pay is entitled, if the
amount in controversy is $100 or more, to a hearing before
the Secretary to the same extent as is provided in section
405(b) of this title, and in any such hearing the Secretary
shall make the organization a party. If the amount in con-
troversy is $1,000 or more, the individual or organization
shall, upon notifying the other party, be entitled to judicial
review of the Secretary’s final decision as provided in sec-
tion 405(g) of this title, and both the individual and the or-
ganization shall be entitled to be parties to that judicial
ao
review. In applying subsections (b) and (g) of section 405
of this title as provided in this paragraph, and in applying
section 4065(1) of this title thereto, any reference therein to
the Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the Sec-
retary or the Department of Health and Human Services,
respectively.
11. Eligibility for low-income subsidies for Medicare
Part D (42 U.S.C, § 1396w-114(a)(3)(B (iv) CIID)
42 U.S.C. § 1396w-114(a)(3)(B)iv)( ILD provides:
[J judicial review of the final decision of the Commis-
sioner made after a hearing shall be available to the same
extent, and with the same limitations, as provided in sub-
sections (g) and (h) of section 405 of this title.
12. Medicare eligibility for providers of services (42
USC. § 13950e(h)(1)(A))
42 U.S.C. § 1395ee(h)(1)(A) provides:
Except as provided in paragraph (2), an institution or
agency dissatisfied with a determination by the Secretary
that it is not a provider of services or with a determination
described in subsection (b)(2) of this section shall be enti-
Ued to a hearing thereon by the Secretary (after reasona-
ble notice) to the same extent as is provided in section
40&b) of this title, and to judicial review of the Secretary's
final decision after such hearing as is provided in section
405(g) of this title, except that, in so applying such sections
and in applying section 405(1) of this title thereto, any ref-
erence therein to the Commissioner of Social Security or
the Social Security Administration shall be considered a
4tia-
reference to the Secretary or the Department of Health
and Human Services, respectively.
13. Medicare Part A and B benefits determinations
(42 U.S.C, § 139501(b)(1)(A))
42 U.S.C. § 1395fT(b)(1 (A) provides:
Subject to subparagraph (D), any individual dissatis-
fied with any initial determination under subsection (a)(1)
of this section shall be entitled to reconsideration of the
determination, and, subject to subparagraphs (D) and (FE),
a hearing thereon by the Secretary to the same extent as
is provided in section 405(b) of this title and, subject to
paragraph (2), to judicial review of the Secretary’s final
decision after such hearing as is provided in section 405(g)
of this title. For purposes of the preceding sentence, any
reference to the “Commissioner of Social Security” or the
“Social Security Administration” in subsection (g) or (1) of
section 405 of this title shall be considered a reference to
the “Secretary” or the “Department of Health and Human
Services”, respectively.
14. Administrative review of Medicare services and
overcharging determinations for enrollees belong-
ing to HMOs and competitive medical plans (42
USC. § 1396mm(c)(5)(B))
42 U.S.C. § 1395mm(e)(5)(B) provides:
A member enrolled with an eligible organization under
this section who is dissatisfied by reason of his failure to
receive any health service to which he believes he is enti-
Ued and at no greater charge than he believes he is re-
quired to pay is entitled, if the amount in controversy is
$100 or more, to a hearing before the Secretary to the
same extent as is provided in section 406(b) of this title,
“Ta-
and in any such hearing the Secretary shall make the eli-
gible organization a party. If the amount in controversy is
$1,000 or more, the individual or eligible organization
shall, upon notifying the other party, be entitled to judicia!
review of the Secretary's final decision as provided in sec-
tion 406(g) of this title, and both the individual and the el-
igible organization shall be entitled to be parties to that
judicial review. In applying sections 405(b) and 405(g) of
Lhis title as provided in this subparagraph, and in applying
section 405(1) of this title thereto, any reference therein to
the Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the Sec-
retary or the Department of Health and Human Services,
respectively.
15. Medicare payment eligibility for dialysis facilities
(42 U.S.C. § 1395rr(g)(3))
42 U.S.C. § 1396rr(g)(3) provides:
A facility dissatisfied with a determination by the Sec-
retary under paragraph (1) shall be entitled to a hearing
thereon by the Secretary (after reasonable notice) to the
same extent as is provided in section 405(b) of this title,
and to judicial review of the Secretary's final decision afler
such hearing as is provided in section 405(g) of this title,
except that, in so applying such sections and in applying
section 405(1) of this title thereto, any reference therein to
the Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the Sec-
retary or the Department of Health and Human Services,
respectively.
a
16. Medicaid payment eligibility for intermediate care
facilities for the mentally disabled (42 U.S.C. §
1396i(b)(2))
42 U.S.C. § 1396i(b\(2) provides:
Any intermediate care facility for the mentally re-
tarded which is dissatisfied with a determination by the
Secretary that it no longer qualifies as ajn| intermediate
care facility for the mentally retarded for purposes of this
subchapter, shall be entitled to a hearing by the Secretary
to the same extent as is provided in section 405(b) of this
Litle and to judicial review of the Secretary’s final decision
after such hearing as is provided in section 405(g) of this
title, except that, in so applying such sections and in ap-
plying section 405(1) of this title thereto, any reference
therein to the Commissioner of Social Security or the So-
cial Security Administration shall be considered a refer-
ence to the Secretary or the Department of Health and
Human Services, respectively.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.