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Appeals Council Guilty of "Bait" and "Switch"

April 28, 2017

Timeliness of an appeal was addressed by the Court of Appeals for the Seventh Circuit in Casey v. Berryhill, 2017 WL 398309 (7th Cir. Jan. 30, 2017).  The Social Security Administration (SSA) had denied the plaintiff’s request for a waiver of an overpayment, so he requested review from the Appeals Council.  Unfortunately, the request to review was untimely.  Despite the untimeliness of the request, the Appeals Council seemed to allow the appeal implicitly, granting plaintiff’s request that the deadline to submit evidence be extended.  Notably, the letter from the Appeals Council did not refer to “good cause” or “timeliness,” but merely referred to an extended time for evidence to substantiate the request for a waiver.  Notwithstanding this action, nearly a year later the Appeals Council dismissed the request to review, finding “no good cause to extend the time of filing.” 

The Seventh Circuit held the Appeals Council has the discretion to determine what is considered to be “good cause” for a delay in filing an appeal, but it was arbitrary to first grant, and then retroactively  deny the request.  The court characterized the Appeals Council’s action as “having the effect of an unfair administrative bait-and-switch.”  The Seventh Circuit found that since no final decision had been reached by the Appeals Council on the waiver, it had no jurisdiction.  The case should therefore be remanded to the agency.


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