I-4-1-109.Exhibit - Fill-in Draft Declaration — Untimely — Any Title (DCL 11)

Last Update: 9/13/05 (Transmittal I-4-15)

IN THE UNITED STATES DISTRICT COURT
FOR THE [N / E / W / S / M / C] DISTRICT OF [STATE]
[DIVISION]

[CLAIMANT'S NAME]

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[SSN]

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Plaintiff

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vs.

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CIVIL ACTION NO. [Number]

 

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[COMMISSIONER'S NAME]

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COMMISSIONER OF

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SOCIAL SECURITY

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Defendant

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DECLARATION OF [BRANCH CHIEF NAME]
COURT CASE PREPARATION AND REVIEW BRANCH [Number]
OFFICE OF HEARINGS AND APPEALS

SOCIAL SECURITY ADMINISTRATION

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I, [System copies BRANCH CHIEF NAME from {1}], [Acting] Chief of Court Case Preparation and Review Branch [System copies Branch Number from {1}] of the Office of Appellate Operations, Office of Hearings and Appeals, Social Security Administration, declare and declare and state as follows:

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(1) Under direct delegation from the Commissioner of Social Security, the Office of Hearings and Appeals administers a nationwide hearings and appeals program. The Office of Hearings and Appeals includes the Appeals Council and Administrative Law Judges who hold hearings on claims arising under [Title II / Title XVI / Titles II and XVI] of the Social Security Act, as amended, when such hearing is duly requested by a claimant who is dissatisfied with the administrative determination of a claim. The Office of Appellate Operations provides professional and technical advice to the Associate Commissioner and Administrative Appeals Judges of the Appeals Council in the processing of cases in which a civil action has been filed.

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(2) One function of the Appeals Council is to act on requests for review of hearing decisions made by Administrative Law Judges and to either grant, deny or dismiss any such request. Under the regulations of the Social Security Administration, if the Appeals Council denies a timely request for review of a hearing decision, that hearing decision becomes the “final decision” within the meaning of, and subject to, the provisions for judicial review in section 205(g) of the Social Security Act, as amended (42 U.S.C. section 405(g)), the first sentence of which reads as follows:

“Any individual, after any final decision of the Commissioner made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner may allow.***”

In implementing this provision of the Act, the Commissioner has promulgated section 422.210 of Social Security Administration regulations No. 22, Part 422, Subpart C (20 CFR 422.210) as follows:

“(a) General. A claimant may obtain judicial review of a decision by an administrative law judge if the Appeals Council has denied the claimant's request for review, or of a decision by the Appeals Council when that is the final decision of the Commissioner.***”

“(c) Time for instituting civil action. Any civil action described in paragraph (a) of this section must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual, institution or agency, except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the presiding officer's [administrative law judge's] decision or notice of the decision by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.***” (Emphasis added).

The Appeals Council also acts on requests for an extension of the period of time to file a civil action as specified in 42 U.S.C. 405(g) and in 20 CFR 422.210.

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(3) I am responsible for the processing of claims under [System copies Title from {3}] of the Social Security Act, as amended, whenever a civil action has been filed in the State of [System copies State from {1}] (see 53 Fed. Reg. 29,778 (1988)). The official file maintained by the Office of Hearings and Appeals relating to the claim of the plaintiff, [CLAIMANT'S NAME], under [System copies Title from {3}] of the Social Security Act, is presently within my custody and has been examined under my supervision. To the best of my knowledge and belief said file shows that:

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(a) On [User keys in ALJ Decision Date], an Administrative Law Judge issued a decision denying the plaintiff's claim for benefits under [System copies Title from {3}], and mailed a copy thereof to the plaintiff (Exhibit 1). Thereafter, the plaintiff requested review of this decision. On [User keys in date of AC's action], the Appeals Council sent, by mail addressed to the plaintiff at [Claimant's Address], [with a copy to the representative], notice of its [decision / action on the plaintiff's request for review] and of the right to commence a civil action within sixty (60) days from the date of receipt (Exhibit 2).

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(b) At the time of signing this declaration, the undersigned is not aware of any request for an extension of time to file a civil action as specified in said notice and in section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) and in section 422.210 of Social Security Administration regulations No. 22 (20 CFR 422.210).

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(c) On [User keys in CA filing date], a civil action was filed in the United States District Court for the [System copies Court Section from {1}] District of [System copies State from {1}].

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In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.

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___________________ Date

________________________________________ [BRANCH CHIEF NAME]