Identification Number:
EM-18004
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/
OCO-CSTs/DDSs/CO/OARO
Originating Office:OGC and OARO
Title:Casey v. Berryhill – Courts Have Jurisdiction to Review an Appeals Council (AC) Order Finding No Good Cause for a Late Request for AC Review and Dismissing the Request as Untimely – Seventh Circuit – ACTION – One-Time-Only Instructions
Type:EM - Emergency Messages
Program:Title II (RSI); Title XVI (SSI)
Link To Reference:See References at the end of this EM.
 
Retention Date: August 8, 2018

A. Purpose of this EM

This EM provides instructions to field offices (FO), regional offices (RO), program service centers (PSC), and the National 800 Number Network (N8NN) to handle inquiries about Title II and Title XVI cases in which the claimant resides in a State in the Seventh Circuit – Illinois [IL], Indiana [IN], or Wisconsin [WI] –and the case has circumstances similar to those in Casey v. Berryhill, 853 F.3d 322 (7th Cir. 2017), as described in this EM. This EM also provides instructions to refer inquiries about Casey v. Berryhill to the Office of Analytics, Review, and Oversight (OARO).


B. Background of this EM

1. Casey v. Berryhill Seventh Circuit Court of Appeals decision

On January 30, 2017, the Seventh Circuit held in Casey v. Berryhill that a claimant may obtain judicial review of an AC order in which the AC found no good cause for a late request for AC review and dismissed the request as untimely.

2. Social Security Administration (SSA)’s responsibility to implement Casey v. Berryhill

When we receive a circuit court decision containing a holding that may conflict with our interpretation of the Social Security Act (Act) or our regulations, like the Casey decision, we identify and code claims potentially affected by the holding. 20 CFR. §§ 404.985(b)(3), 416.1485(b)(3).

Accordingly, in cases in which a claimant resides in a State in the Seventh Circuit, we must identify and code cases where the AC dismisses a request for AC review. During the identifying and coding process, we will review the various policies involved and determine whether and to what extent the court's decision conflicts with our interpretation of the Act or our regulations. We will then determine whether we need to issue an Acquiescence Ruling (AR). If we issue an AR, we will send a notice to the claimants whose cases we have coded. The notice will explain what actions a claimant must take if the claimant wants to have the case reviewed under the new AR.


C. Identifying cases, exclusions, and screening

1. Identifying cases as Casey v. Berryhill cases

A Casey v. Berryhill case must meet the following criteria:
    • The AC dismissed a request for AC review in a single-title or dual-title case, and
    • The AC dismissed the request for review while the claimant resided in IL, IN, or WI.

NOTE: In a dual-title case that involves claims for benefits under both Title II and Title XVI of the Social Security Act, the case qualifies as a Casey v. Berryhill case even if the AC dismisses the request for AC review for only one of the claims, and takes a different action on the other claim. Refer the case to OARO as instructed in section E.1. of this EM.

2. Casey v. Berryhill does not apply

A case is not a Casey v. Berryhill case if:
    • The AC denied the claimant’s request for AC review, or
    • The AC granted the claimant’s request for AC review.

This instruction does not change current processing instructions. If there are any changes in processing instructions because of the Seventh Circuit’s decision in Casey v. Berryhill, we will issue changes in a subsequent EM, AR, or Program Operations Manual System (POMS) transmittal.


D. Instructions to handle inquiries

Follow these instructions to handle Casey v. Berryhill inquiries:

1. FO, RO, and PSC instructions
    • If a claimant contacts the agency with questions about the Casey v. Berryhill decision or identifies as a person with a case affected by Casey v. Berryhill, use the information in this EM to answer the claimant’s questions.
    • Explain the criteria in section C.1. of this EM to the claimant to determine whether the case qualifies as a Casey v. Berryhill case. If you determine that the case meets the criteria in section C.1., refer the case to OARO as instructed in section E.1. of this EM.
    • If the claimant alleges that the case meets the criteria in section C.1. and requests a review under the AR we may issue, accept the allegations and refer the case to OARO as instructed in section E.1. of this EM.

2. N8NN instructions
    • If a caller contacts the N8NN with questions about the Casey v. Berryhill decision or identifies as a person with a case affected by Casey v. Berryhill, use the information in this EM to answer the caller’s questions.
    • Explain the criteria in section C.1. of this EM to the caller to determine whether the case qualifies as a Casey v. Berryhill case. If you determine that the case meets the criteria in section C.1., refer the case to OARO as instructed in section E.1. of this EM.
    • If the caller alleges that the case meets the criteria in section C.1. and requests a review under the AR we may issue, accept the allegations, and refer the case to OARO as instructed in section E.1. of this EM.
    • Refer to TC 03001.040 for additional instructions to handle inquiries on court cases.
    • If you are unable to respond to the inquiry using all available references (including EM and PolicyNet), refer the caller to the FO.


E. Refer cases identified as Casey v. Berryhill cases to OARO

1. FO/RO/PSC/N8NN instructions

When you determine that a case meets the criteria in section C.1. of this EM, or if a claimant alleges that his or her case meets the criteria in section C.1. of this EM and requests review under the AR we may issue, refer the case to OARO by sending an e-mail to DCARO.OAO@ssa.gov.

Tell the claimant:
    • We will refer the case to OARO. OARO will update its records to reflect that the case is potentially affected by the Casey v. Berryhill court case; and
    • If we issue an AR, we will send the claimant a notice explaining the steps required to have the case reviewed under the new AR.
In your e-mail to OARO, include the following information:
    • In the subject line of the e-mail, write “Casey v. Berryhill case notification”;
    • In the body of the e-mail:

      Write “This is a Casey v. Berryhill case and must be coded by OARO.”;

      If the case is a dual-title case that involves claims for benefits under both Title II and Title XVI of the Social Security Act, state whether the AC dismissed the request for AC review for the Title II claim, the Title XVI claim, or both claims; and

      Include the claimant’s full name and Social Security number.

FO and N8NN personnel should direct program-related and technical questions to their RO support staff or PSC Operations Analysis (OA) staff. RO personnel or PSC OA staff may refer questions or problems to their Central Office contacts.

2. Instructions for OARO only
    When OARO receives an e-mail from an FO, RO, PSC, or the N8NN, as described in section E.1. of this EM, staff in OARO will code the case. Staff in OARO will also code cases that meet the criteria of a Casey v. Berryhill case that they identify from working the case. If the case has not been dismissed, that is, if OARO has not yet taken final action to dismiss it and close it, OARO will code the case by adding the case characteristic “CASE” in the Appeals Review Processing System. If the case has been dismissed, that is, if OARO has taken final action to dismiss it and close it, OARO will use a separate internal tracking system to code the case. For more information, see Hearings, Appeals, and Litigation Law (HALLEX) manual HA I-5-4-73.

    If there are any questions regarding these instructions, OARO staff should contact the Executive Director’s Office.

    References

    20 CFR 404.985(b)(3), 416.1485(b)(3) Application of Circuit Court Law
    20 CFR 404.968, 416.1468 How to Request Appeals Council Review
    20 CFR 404.971, 416.1471 Dismissal by Appeals Council
    DI 12020.001 Appeals Council (AC) Review
    DI 33530.001 Disability-Related List Code Numbers
    GN 03104.100 Requesting Appeals Council Review
    GN 03104.350 Appeals Council (AC) Jurisdiction
    GN 03501.002 Coding Instructions – Identified Cases
    HA I-3-4-0 Dismissals
    TC 03001.040 Handling Inquiries on Court Cases
    EM-18004 - Casey v. Berryhill – Courts Have Jurisdiction to Review an Appeals Council (AC) Order Finding No Good Cause for a Late Request for AC Review and Dismissing the Request as Untimely – Seventh Circuit – ACTION – One-Time-Only Instructions - 02/08/2018