Pulling a Dismissal out of the Ashes -- Ashe v. Saul

 Getting close the end of our list of published Social Security cases decided by the Ninth Circuit. Our case today is Ashe v. Saul. 

Ashe v. Saul, 983 F.3d 1104 (2022) -- the Appeals Council denies review but neither the claimant nor the representative receive the action in the mail. Eighteen months later, a phone call confirms that the AC did deny review. Ashe files a complaint the next day. On a motion to dismiss, the USDC finds the claim untimely filed and dismisses the case. Held, the declarations of the claimant and the representative make a reasonable showing to rebut the presumption that notice was received within five days. Distinguishing cases from the Fifth and Second Circuits, Ashe holds that the reasonable showing shifts the burden to the government to show that actual receipt was more than sixty days before the filing of the complaint, citing McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987); Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984). The facts saved the day. 

Ashe clarifies the reasonable showing standard as fact-intensive. The record at the USDC contained a declaration of the claimant, the legal secretary, and the attorney not only of the non-receipt but the practice of opening and paying attention to the mail. The last fact highlighted by the Court was the filing the next day. There is nothing like promptness to lend credibility to the allegation that "if we had known, we would have filed sooner."  The Court did not address other questions other than to hold that these unique facts were sufficient.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Pulling a Dismissal out of the Ashes -- Ashe v. Saul, California Social Security Attorney (May 3, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.