Costello v. Astrue

254 F. App'x 541

Opinion

Order

After holding that the agency erred in denying Florine Costello a “deemed” filing date under 42 U.S.C. § 402(j)(5), we wrapped up: “The record does not reveal the current balance of accounts between the agency and Costello, so on remand the district court must determine (1) the date on which Costello is deemed to have applied for benefits as Gilbert Costello’s ex-wife, and (2) the amount that the SSA now owes Costello (or vice versa).” The agency now seeks rehearing, limited to the question whether the remand should be to itself rather than to the district court.

On this subject the agency is in the right. Having corrected a legal error, a court should remand to the agency for correction. See, e.g., Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006); INS v. Ventura, 537 U.S. 12, 128 S.Ct. 358, 154 L.Ed.2d 272 (2002). We therefore grant the petition for rehearing and modify our judgment so that, on remand from this court, the district court must remand the matter to the Social Security Administration with instructions to resolve the matters we have identified. That said, however, we hope that the parties may quickly settle these technical issues so that Costello is promptly restored to the financial position she should have enjoyed years ago. Any claim of unreasonable delay on the agency’s part is reviewable under 5 U.S.C. § 706(1).