Unpublished Disposition, 907 F.2d 154 (9th Cir. 1986)

No. 86-2871.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, ALBERT LEE STEPHENS^*** , Jr., District Judge.

MEMORANDUM^**** 

Sally L. Lucas appeals pro se the district court's dismissal of her action against the Secretary of the Department of Health and Human Services for judicial review of the Social Security Administration's final decision denying her disability benefits.

The Social Security Administration ("SSA") denied Lucas disability benefits because it concluded that Lucas' medical condition could not produce the amount of pain she claims disables her. When the SSA Appeals Council finally denied Lucas' claim in December of 1985, it sent her a standard letter informing her that, "If you desire a court review of the Administrative Law Judge's decision, you may commence a civil action by filing a complaint in the United States District Court for the judicial district in which you reside within sixty (60) days from the date of receipt of this letter." From this notice, Lucas understood the time limit, but did not understand how and where to file a "complaint." She therefore attempted to contact her attorney to find out, although she knew he would not represent her in another appeal.

Lucas' last day to file an appeal in district court was February 15, 1986. Realizing that her time was running and unable to contact her attorney, on February 14 Lucas delivered the following letter to the Social Security office which had processed her claim:

Feb. 14, 1986

To: Social Security

This is to state that I will be appealing the most recent denial of my claim and I am advising you in writing. Please send me the necessary paper work to do so.

/s/Sally Lucas.

Emphasis added.

SSA apparently did not respond to Lucas' letter, although it is obvious from her letter that Lucas did not understand how to seek review of the Appeal Council's final decision in district court. When within the week Lucas at last reached her attorney, she learned how to file in district court and immediately did so. Her complaint was then six days late, and the district court granted the SSA's motion to dismiss. We review a district court's dismissal of a suit de novo. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

Lucas filed her action for judicial review sixty-six days after receiving notice of SSA's final decision. Claimants seeking review of a final decision by the SSA must file a complaint in federal district court "within sixty days after the mailing to [claimant] of notice of such decision or within such further time as the Secretary may allow." 42 U.S.C. § 405(g). Lucas' complaint was thus untimely by six days. The sixty-day limit for seeking review of an SSA final decision in district court, however, is a statute of limitations subject to equitable tolling. Bowen v. City of New York, 476 U.S. 467, 478-80 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277-78 (9th Cir. 1987). Indeed, "Congress has authorized the Secretary to toll the 60-day limit, thus expressing its clear intention to allow tolling in some cases." Bowen, 476 U.S. at 480; see 20 C.F.R. Sec. 416.1482.

To effect this congressional intent, the SSA has established both a process for requesting extensions of time to file court complaints, 20 C.F.R. Sec. 416.1482, and the grounds justifying an extension, 20 C.F.R. Sec. 416.1411. Before we consider whether the district court should have found equitable tolling of Lucas' filing deadline, then, we must first consider whether the SSA erred in not granting Lucas an extension. See Bowen, 476 U.S. at 480 (court considers equitable tolling only after Secretary denies extension of filing deadline). We review the SSA's action in Lucas' case for abuse of discretion and for accordance with law. Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1105 (9th Cir. 1989). While we do not substitute our judgment for the SSA's, our review requires "a satisfactory explanation for [the agency's] action." Id.¹ 

Lucas did not formally request an extension from the SSA. We conclude, however, that the SSA should have construed Lucas' February 14 letter as an appropriate request for an extension. As in judicial evaluation of equitable tolling, the SSA considers agency action misleading a claimant as good cause for an extension. 20 C.F.R. Sec. 416.1411(a) (2). In Lucas' case, the SSA bears some responsibility for both Lucas' late court filing and her failure to request an extension.

First, the SSA had accepted responsibility to inform Lucas about appeal of its decision to federal district court through its Appeals Council's letter to Lucas. Lucas' February 14 letter, however, subsequently notified the SSA that she did not know how to appeal. It requested assistance from the SSA in securing the "necessary paper work" to file the appeal. Receiving incomplete information from the SSA about how to file an appeal constitutes good cause for missing the deadline. 20 C.F.R. Sec. 416.1411(b) (6).

Second, the SSA should have construed Lucas' February 14 letter as a request for an extension of time to file in district court. See 20 CFR Sec. 416.1482 ("If you show that you had good cause for missing the deadline, the time period will be extended." Emphasis added.). Lucas' February 14 letter notified the SSA that she misunderstood the appeal process and required further assistance from the SSA. The SSA may not have been able to assist Lucas in time to meet the court filing deadline the following day. Nonetheless, SSA can extend court deadlines after claimants miss them upon claimants' request. 20 C.F.R. Sec. 416.1482. The authority Congress has entrusted to SSA to extend deadlines and toll the statute cannot benefit claimants if claimants like Lucas are ignorant of the opportunity. Not granting Lucas an extension upon notice she misunderstood the appeal process thwarts congressional purpose in authorizing the SSA to grant extensions. See Bowen, 476 U.S. at 480, n. 12 (re congressional purpose).

We note too that Lucas' case satisfies two other criteria for application of equitable tolling, diligence of the claimant and lack of prejudice to the government. Lucas diligently pursued her appeal, attempting to reach her attorney and, as she emphasizes, in good faith notifying the SSA of her intent to appeal. Lucas thus "demonstrated the due diligence which statutes of limitation are designed to engender." Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1175 (9th Cir. 1986), as amended, 815 F.2d 570 (1987). Moreover, the SSA suffered no prejudice from Lucas' late filing. Lucas' February 14 letter further fulfilled the filing limitation's purpose by putting the Social Security Administration on notice that Lucas would appeal and that the SSA must "maintain the evidence necessary to its defense." Id.

We conclude, therefore, that the SSA was obliged to construe Lucas' February 14 letter as a request for an extension. Further, if the SSA did not appropriately respond to this request, then it abused its discretion in failing to grant the extension. Rather than burden the courts with its motion to dismiss Lucas' case for missing the deadline, the SSA should have informed Lucas she could request an extension even after she had missed the court filing deadline. Because the SSA bears some responsibility for Lucas' late filing, because Lucas acted diligently and in good faith, and because no prejudice to the SSA resulted from the delay, equitable tolling in Lucas' case would have furthered congressional purposes in authorizing extensions. If the SSA did not act upon Lucas' notice, it could not have considered these relevant factors. Failure to consider the relevant factors constitutes an abuse of administrative discretion. Sierra Pacific Indus., 866 F.2d at 1105.

We have concluded that if the SSA failed to respond to Lucas' February 14 letter, it abused its discretion, remedied now by granting Lucas an extension. Because we cannot determine from the record whether and how the SSA responded to Lucas' letter, however, it is necessary to remand the case for this determination. Therefore, we VACATE the judgment of the district court and REMAND this case to the district court with instructions to REMAND to the SSA to determine whether it took adequate action in response to Lucas' February 14 letter.

VACATED and REMANDED with instructions.