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7th Circuit overrules decades-old precedent, orders more proceedings on benefits case

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The 7th Circuit Court of Appeals reversed the dismissal by a federal judge of a woman’s petition for judicial review of the decision to deny rehearing her request for Social Security disability benefits. In doing so, the judges overruled a 1980 7th Circuit decision with similar facts.

Marilyn Boley was denied benefits by the Social Security Administration. Instead of requesting a hearing by an administrative law judge within 60 days of the denial as is allowed by regulations, Boley took nine months to make the request. The SSA notified Boley of its decision to deny benefits but did not send the notice to her attorney. Boley was ill at the time and relied on her attorney to protect her interests.

When her lawyer requested the hearing, the ALJ dismissed the request. The ALJ ruled Boley lacked “good cause” for the delay in her request, so an extension of time to file is not supported.

Chief Judge Richard Young in the Southern District of Indiana then dismissed Boley’s petition for judicial review, ruling that the ALJ’s decision to dispense with an oral hearing means that he court lacks subject-matter jurisdiction. Young relied on 42 U.S.C. Section 405(g), which authorizes review of the agency’s final decisions, to make his decision.

This case hinges on what is considered a “hearing,” which Young assumed meant an oral procedure required by a statute or regulation. The 7th Circuit concluded that “hearing” means whatever process the SSA deems adequate to produce a final decision – a view that no court of appeals has explicitly adopted. The panel’s decision follows Weinberger v. Salfi, 422 U.S. 749, 763-67 (1975), and Matthews v. Eldridge, 424 U.S. 319, 326-32 (1976). Under those cases, Boley is entitled to judicial review of her contention that the agency mishandled her case.

But 34 years ago, the 7th Circuit Court in Watters v. Harris, 656 F. 2d 234 (7th Cir. 1980), held otherwise. Watters is materially identical to Boley’s situation, but in that case, the appeals panel dismissed for want of jurisdiction and held that the agency’s decision to not take oral testimony blocked judicial review. Watters made jurisdiction turn on the presence of a constitutional argument, but Monday, the panel decided that Watters is wrongly decided.

“The prospect of moving from one side of a conflict to another is not attractive, especially when the conflict is so old and the Supreme Court has been content to allow the disagreement to continue. Nonetheless, we have a duty to apply §405(g) the way the Supreme Court did in Salfi and Eldridge, and we very much want to give the statute a reading that avoids unnecessary constitutional litigation of the kind that Watters and similar decisions invite,” Judge Frank Easterbrook wrote.

Watters is overruled. This opinion has been circulated to all judges in active service under Circuit Rule 40(e). None requested a hearing en banc.

The District Court’s judgment is vacated, and the case is remanded with instructions to decide whether substantial evidence, and appropriate procedures, underlie the decision that Boley lacks ‘good cause’ for her delay in seeking intra-agency review.”

The case is Marilyn R. Boley v. Carolyn W. Colvin, acting commissioner of Social Security 13-1252.
 

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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