Office of Hearings and Appeals
Social Security Administration (S.S.A.)
Department of Health and Human Services
Division IV: Civil Action
Subject: New Court Cases
June 30, 1994
Current through June 1997
I-4-131 AFFIDAVITS--UNTIMELY FILED
When a claimant fails to comply with the statutory and regulatory time requirements for filing a civil action, the operating division clerk will ordinarily complete an appropriate affidavit using the fill-in draft in > I-4-199, Exhibit D.
NOTE: When the Administrative Law Judge or Appeals Council issues a dismissal order, the clerk must not complete an "untimely filed" affidavit, regardless of the filing date. Instead, the clerk must assign the case to an analyst pursuant to division procedures.
A. Determining the Filing Deadline Date
A claimant has 60 days following receipt of a final decision within which to file the civil action. Unless the case involves the Expedited Appeals Process (see > I-4-142), that final "decision" is either an Appeals Council decision or an Appeals Council denial of a request for review. We presume that the claimant receives the Appeals Council notice 5 days after the date of the notice unless there is a reasonable showing to the contrary.
To determine whether a complaint is timely, begin by adding 5 calendar days to the date of the Appeals Council's notice. If this is a Sunday or federal holiday, assume that receipt occurred on the next U.S. Postal Service business day. Add 60 calendar days to the "presumed receipt" date. This is the civil action filing deadline date. Should this date fall on a Saturday, Sunday or a federal holiday, the deadline is the next federal business day. It is important to remember that both the U.S. Postal Service and the federal district courts are closed on federal holidays.
Any complaint filed beyond the deadline date is untimely unless the Appeals Council has granted an extension of time. The OCA clerk must request the Division Director to assign any cases involving a request for an extension of time which the Appeals Council has not yet considered to an analyst.
B. Determining the Date of Filing
It is not necessary that the actual complaint be filed by the deadline date. A timely motion to proceed in forma pauperis (see > I-4-102) or any other appropriate filing with the court will toll the deadline. Moreover, the Secretary will consider any complaint date stamped "Received", "Tendered" or any other such designation by the clerk of the court as filed within the appropriate 60-day period as timely even if the "filing date" is beyond the deadline.
In any case in which the complaint appears untimely, the division clerk must phone the clerk of the court to determine if and when the claimant filed an in forma pauperis motion. The division clerk must document this call and the information obtained on a Documentation of Civil Action Filing Date Memorandum (see > I-4-199, Exhibit E).
C. Using the Fill-in Draft
Unless the Appeals Council has acted upon a request for an extension of time, the division clerk simply inserts the appropriate information in the blank spaces in the fill-in draft shown in > I-4-199, Exhibit D. If the Appeals Council denied a request for an extension of time, the clerk must modify item 3(b) accordingly. The clerk must attach as exhibits both the request for the extension of time and the Appeals Council's denial. The clerk must make no other modifications to the affidavit form. Neither the clerk nor the analyst will complete an untimely filed affidavit when the Appeals Council has not yet acted on a request for an extension of time.