UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-30065
NELSON GUILLORY ESTATE,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Louisiana Civil Docket 99-CV-110
November 16, 2000
Before JOLLY, JONES, and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The Estate of Nelson Guillory (“Guillory”) appeals from
the district court’s dismissal for lack of subject-matter
jurisdiction. Guillory seeks judicial review of the Social
Security Administration’s (“SSA”) determination of his disability
insurance benefits. Guillory asserts that an Administrative Law
Judge constructively reopened a prior denial of his benefits when
the ALJ determined that the onset date of his disability was 1983.
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. He contends that this reopening resulted in a final decision
appropriate for judicial review. This court finds that there was
no de facto reopening. Without reaching the issue whether there
would be subject-matter jurisdiction if there had been a de facto
reopening, we affirm the district court’s dismissal.
I. FACTS AND PROCEDURAL HISTORY
This case comes before us after an “extraordinary and
unnecessarily tortured” past. Guillory v. Chater, No. 95-31195 (5th
Cir. June 18, 1996). Nelson Guillory, now deceased, filed an
application for disability insurance benefits with the Social
Security Administration in November of 1985, alleging an onset date
of August, 1983. His initial application was denied by the
Commissioner in February, 1986. At that time, no further appeal
was taken.
Guillory filed a second application for disability
insurance benefits on April 30, 1990 which was denied both
initially and on reconsideration. After Guillory requested a
review of the denial, a favorable decision was rendered by an ALJ
on May 23, 1991. The ALJ found that Guillory “met the disability
insured status requirements of the Act on August 27, 1983, the date
that claimant stated he became unable to work, and continued to
meet them through March 31, 1990.” The ALJ decided that “based on
the application filed on April 30, 1990,” Guillory was entitled to
a “period of disability” beginning in August of 1983, and to
2 “disability insurance benefits” under sections 216(i) and 223 of
the Social Security Act. There was no reference to the 1985
application in the ALJ’s decision.
On July 24, Guillory was notified by SSA that he was
entitled to monthly disability benefits beginning April 1989. The
notice did not explain why the award began from 1989 and not 1983.
Rather, it stated that “[t]his action supersedes our previous
determination and is in accordance with the decision of the
Administrative Law Judge.” In addition, it advised Guillory that
he could ask for a reexamination of his case within sixty days of
the date he received the notice. On August 6, 1991, Guillory, in
a three paragraph letter from his attorney, requested
reconsideration “in connection with the notice,” asserting that the
determination was incorrect and that because “a de facto reopening
of his earlier application for benefits [had] occurred,” he was due
additional benefits. The letter stated only that Guillory was
requesting reconsideration of the notice; it made no mention of an
appeal to the ALJ’s decision.
The delay that followed can only be attributed to SSA’s
neglect. The agency did not respond until December, when it sent
Guillory a letter incorrectly stating that Guillory’s request was
untimely because it was not sent within sixty days of the May
decision. As Guillory had made clear, however, he was appealing
the July 24 notice. Guillory’s attorney immediately sent a letter
3 clarifying the agency’s misunderstanding. The following month, the
agency informed Guillory that it noted the error and was forwarding
his request for reconsideration to his local Social Security
office. Guillory heard from the Appeals Council one year later in
February of 1993 at which time the council repeated the agency’s
error, finding that the request for review had not been timely
filed. Moreover, the council acknowledged Guillory’s letter of
December 12 but found that there was no good cause to extend the
time for filing and dismissed Guillory’s request for review. In
the same order, the Appeals Council addressed the issue of
reopening. However, rather than considering Guillory’s argument
that the earlier application was de facto reopened, the council
treated Guillory’s letter as a “request for reopening of the final
determination made in connection with a prior claim.” As such, the
council found that reopening was precluded because the “request”
was not timely made within four years of the prior claim filed in
November 1985. Finally, the council once again notified Guillory
that his case was being forwarded to the local social security
office to take action on the request for reconsideration of the
July 1991 notice.
Guillory filed a civil action in April of 1994 seeking
judicial review of the council’s order. According to Guillory’s
complaint, he made repeated requests for information both prior to
and after the 1993 order but with limited success. In addition,
4 Guillory averred that “his November 1985 claim was reconsidered on
the merits by the administrative law judge” at the 1991 hearing and
“was reopened as a matter of administrative discretion.” In August
of 1995, the magistrate judge recommended that Guillory’s claim be
dismissed without prejudice because he had not exhausted his
administrative remedies. The district court subsequently adopted
the recommendation of the magistrate judge and this court affirmed
in June 1996. We noted, however, the “extraordinary nature of the
Administrator’s treatment of this case” and stated that “[w]e are
confident that the Administrator will process the plaintiff’s
claims with the speed to which he is by now surely entitled.”
Separate from the litigation, Guillory finally received
a letter from the local social security office in January of 1995
stating that his request to reopen the prior claim was denied
because it was made over four years after the initial
determination. This letter did not address Guillory’s claim of a
de facto reopening. That September, the SSA issued a second notice
of reconsideration, stating that the initial determination could
not be reopened under the rules of administrative finality.
Although this reconsideration did not address the de facto
reopening argument, it stated that the ALJ had “substituted his
judgment in establishing the date of onset in the second claim” in
compliance with SSA regulations. Moreover, it pointed out that
there was “no mention of the prior claim” in the ALJ’s decision.
5 It also explained that the ALJ’s judgement was effectuated with a
date of entitlement of April 1989 because that was the twelve month
retroactivity of the 1990 claim.
Guillory then requested another hearing before an ALJ to
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-30065
NELSON GUILLORY ESTATE,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Louisiana Civil Docket 99-CV-110
November 16, 2000
Before JOLLY, JONES, and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The Estate of Nelson Guillory (“Guillory”) appeals from
the district court’s dismissal for lack of subject-matter
jurisdiction. Guillory seeks judicial review of the Social
Security Administration’s (“SSA”) determination of his disability
insurance benefits. Guillory asserts that an Administrative Law
Judge constructively reopened a prior denial of his benefits when
the ALJ determined that the onset date of his disability was 1983.
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. He contends that this reopening resulted in a final decision
appropriate for judicial review. This court finds that there was
no de facto reopening. Without reaching the issue whether there
would be subject-matter jurisdiction if there had been a de facto
reopening, we affirm the district court’s dismissal.
I. FACTS AND PROCEDURAL HISTORY
This case comes before us after an “extraordinary and
unnecessarily tortured” past. Guillory v. Chater, No. 95-31195 (5th
Cir. June 18, 1996). Nelson Guillory, now deceased, filed an
application for disability insurance benefits with the Social
Security Administration in November of 1985, alleging an onset date
of August, 1983. His initial application was denied by the
Commissioner in February, 1986. At that time, no further appeal
was taken.
Guillory filed a second application for disability
insurance benefits on April 30, 1990 which was denied both
initially and on reconsideration. After Guillory requested a
review of the denial, a favorable decision was rendered by an ALJ
on May 23, 1991. The ALJ found that Guillory “met the disability
insured status requirements of the Act on August 27, 1983, the date
that claimant stated he became unable to work, and continued to
meet them through March 31, 1990.” The ALJ decided that “based on
the application filed on April 30, 1990,” Guillory was entitled to
a “period of disability” beginning in August of 1983, and to
2 “disability insurance benefits” under sections 216(i) and 223 of
the Social Security Act. There was no reference to the 1985
application in the ALJ’s decision.
On July 24, Guillory was notified by SSA that he was
entitled to monthly disability benefits beginning April 1989. The
notice did not explain why the award began from 1989 and not 1983.
Rather, it stated that “[t]his action supersedes our previous
determination and is in accordance with the decision of the
Administrative Law Judge.” In addition, it advised Guillory that
he could ask for a reexamination of his case within sixty days of
the date he received the notice. On August 6, 1991, Guillory, in
a three paragraph letter from his attorney, requested
reconsideration “in connection with the notice,” asserting that the
determination was incorrect and that because “a de facto reopening
of his earlier application for benefits [had] occurred,” he was due
additional benefits. The letter stated only that Guillory was
requesting reconsideration of the notice; it made no mention of an
appeal to the ALJ’s decision.
The delay that followed can only be attributed to SSA’s
neglect. The agency did not respond until December, when it sent
Guillory a letter incorrectly stating that Guillory’s request was
untimely because it was not sent within sixty days of the May
decision. As Guillory had made clear, however, he was appealing
the July 24 notice. Guillory’s attorney immediately sent a letter
3 clarifying the agency’s misunderstanding. The following month, the
agency informed Guillory that it noted the error and was forwarding
his request for reconsideration to his local Social Security
office. Guillory heard from the Appeals Council one year later in
February of 1993 at which time the council repeated the agency’s
error, finding that the request for review had not been timely
filed. Moreover, the council acknowledged Guillory’s letter of
December 12 but found that there was no good cause to extend the
time for filing and dismissed Guillory’s request for review. In
the same order, the Appeals Council addressed the issue of
reopening. However, rather than considering Guillory’s argument
that the earlier application was de facto reopened, the council
treated Guillory’s letter as a “request for reopening of the final
determination made in connection with a prior claim.” As such, the
council found that reopening was precluded because the “request”
was not timely made within four years of the prior claim filed in
November 1985. Finally, the council once again notified Guillory
that his case was being forwarded to the local social security
office to take action on the request for reconsideration of the
July 1991 notice.
Guillory filed a civil action in April of 1994 seeking
judicial review of the council’s order. According to Guillory’s
complaint, he made repeated requests for information both prior to
and after the 1993 order but with limited success. In addition,
4 Guillory averred that “his November 1985 claim was reconsidered on
the merits by the administrative law judge” at the 1991 hearing and
“was reopened as a matter of administrative discretion.” In August
of 1995, the magistrate judge recommended that Guillory’s claim be
dismissed without prejudice because he had not exhausted his
administrative remedies. The district court subsequently adopted
the recommendation of the magistrate judge and this court affirmed
in June 1996. We noted, however, the “extraordinary nature of the
Administrator’s treatment of this case” and stated that “[w]e are
confident that the Administrator will process the plaintiff’s
claims with the speed to which he is by now surely entitled.”
Separate from the litigation, Guillory finally received
a letter from the local social security office in January of 1995
stating that his request to reopen the prior claim was denied
because it was made over four years after the initial
determination. This letter did not address Guillory’s claim of a
de facto reopening. That September, the SSA issued a second notice
of reconsideration, stating that the initial determination could
not be reopened under the rules of administrative finality.
Although this reconsideration did not address the de facto
reopening argument, it stated that the ALJ had “substituted his
judgment in establishing the date of onset in the second claim” in
compliance with SSA regulations. Moreover, it pointed out that
there was “no mention of the prior claim” in the ALJ’s decision.
5 It also explained that the ALJ’s judgement was effectuated with a
date of entitlement of April 1989 because that was the twelve month
retroactivity of the 1990 claim.
Guillory then requested another hearing before an ALJ to
review the September 21, 1995 denial. Despite the fact that
Guillory’s attorney made the same de facto reopening argument at
the hearing, the ALJ stated that the issue to be decided was
whether the 1985 application could be reopened. In December of
1996, the ALJ found that it could not be reopened and, again,
failed to address Guillory’s argument that it had been reopened.
Guillory therefore sought review from the Appeals
Council. The Appeals Council granted review without oral argument.
In November 1998, the Appeals Council finally issued a decision
addressing the implied reopening issue. The Appeals Council denied
Guillory relief, stating that the ALJ’s 1991 decision did not
address the issue of reopening and that there was no basis for
concluding that he implicitly reopened the earlier application.
The Appeals Council also held that any reopening was barred by
administrative regulations, because Guillory’s current application
was filed on April 30, 1990, more than four years after the notice
of determination whose reopening is asserted, and thus beyond the
administrative time limits 20 C.F.R. § 404.988, § 404.989. This
decision came seven years after Guillory first raised the issue.
6 In the interim, Guillory died in April of 1997.
Guillory’s estate commenced this action in January of 1999 seeking
judicial review of the Appeals Council’s determination that there
had been no de facto reopening. The defendant filed a motion to
dismiss contending that the court lacked subject matter
jurisdiction. In October of 1999, the magistrate judge issued a
report and recommendation concluding that, pursuant to 42 U.S.C. §
405(g) and Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977),
judicial review of “the Secretary’s denial of a motion to reopen a
claim lies only where a colorable constitutional question is at
issue.” Id. at 985. Because the plaintiff failed to present a
constitutional claim, the magistrate judge found that there was no
jurisdiction over the matter and recommended that the plaintiff’s
complaint be dismissed. The district court adopted the magistrate
court’s report and recommendation, dismissing the complaint.
Guillory appeals.
II. ANALYSIS
An individual may obtain judicial review in a federal
district court of “any final decision of the Commissioner of Social
Security made after a hearing to which he was a party....” 42.
U.S.C. § 405(g). The court may enter, “upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner....” Id. Whether a
7 federal court has subject matter jurisdiction depends upon what
constitutes a “final decision made after a hearing.”
The Supreme Court and this circuit have made clear that
a denial of a request to reopen an agency determination is not a
“final decision” for the purposes of federal jurisdiction.
Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977). This court,
in Torres v. Shalala, 48 F.3d 887 (1995), applied Califano and held
that, absent a colorable constitutional question, it would not
review a Secretary’s denial of a motion to reopen a claim.2
Neither Torres nor Califano specifically addressed whether a
federal court lacks subject matter jurisdiction in cases where
there has been a “de facto” reopening, since both involved denials
of reopening. As will be seen, however, the rule of those cases
applies here.
Guillory contends that the ALJ constructively reopened
his 1985 application and then made a final determination that
Guillory was entitled to receive retroactive benefits from 1983.
This decision, Guillory argues, constitutes a final decision for
the purposes of federal jurisdiction.
There are three obstacles to Guillory’s position: First,
the appeals Council reviewed the ALJ decision and found not only
that no de facto reopening actually occurred, but that reopening of
2 Guillory raises no constitutional issue.
8 any sort was barred by the time limits in the administrative
regulations.
Second, the courts in similar cases have concluded that
where, as here, an ALJ decision in the applicant’s second case made
no mention of the first application but simply arrived at an early
onset date that was arguably consistent with the first
(administratively denied) applications, no de facto reopening had
occurred. See King v. Charter, 90 F.3d 323, 324 (8th Cir. 1996);
Coates v. Bowen, 875 F.2d 97, 99 (7th Cir. 1988).3
Third, as these other decisions explain, administrative
reopenings of any kind must occur within four years of the initial
decision denying coverage, subject to exceptions not relevant here.
See King, 90 F.3d at 325; Coates, 875 F.2d at 99-101. This is true
because, as Califano and Torres have explained, the opportunity for
reopening is afforded by the regulations, and the Commissioner may
restrict the conditions of reopening. Without such restrictions,
the administrative time limit for appeals would become meaningless.
Moreover, because administrative law judges lack authority to
deviate from the regulations’ time limits, de facto reopening must
also occur within such periods. Coates, id.
3 The only slight reference to a previous decision was a statement in the July 1991 “Notice of Award” that “[t]his action supersedes our previous determination and is in accordance with the decision of the Administrative Law Judge.” However, there is no other mention of the previous determination and no indication that it had been reviewed.
9 For these reasons, Guillory’s reliance on Brown v.
Sullivan, 932 F.2d 1243 (8th Cir. 1991), is misplaced. In Brown,
the second claim was filed within four years of the initial denial.
Moreover, the Eighth Circuit found that there had been a
constructive reopening because both applications claimed the same
onset date and impairments. A review of the second application
necessarily included a review of the merits of the first
application, even though the second review made no mention of the
previous application. Id. at 1246. Most important, the denial
notice that the claimant received following reconsideration of his
second application explicitly referenced the previous decision. No
similar reference was made in the instant case.
III. CONCLUSION
The district court’s dismissal was based on its
understanding that Guillory was seeking judicial review of the
agency’s denial of a motion to reopen a claim. Although that
approach mischaracterized Guillory’s position, the relevant
authorities nevertheless compel the conclusion that the court
lacked jurisdiction over the issue of an out-of-time, de facto
reopening. We therefore affirm the dismissal on other grounds.
AFFIRMED.