I-5-4-73.Casey v. Berryhill
ISSUED: February 8, 2018
This temporary instruction (TI) directs how the Office of Appellate Operations (OAO) will identify and code pending 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 (Casey), 853 F.3d 322 (7th Cir. 2017), as described below.
On January 30, 2017, the Seventh Circuit held in Casey that a claimant may obtain judicial review of an Appeals Council (AC) order where the AC found no good cause for a late request for review and dismissed the request as untimely.
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 (IL, IN, or WI), 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 his or her case reviewed under the AR.
A. Identifying Cases, Exclusions, and Screening
1. Identifying Casey Cases
A Casey 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 a State in the Seventh Circuit (IL, IN, or WI).
NOTE: In a dual-title case involving 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.
2. Casey Does Not Apply
A case is not a Casey 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, we will issue changes in a subsequent Hearings, Appeals and Litigation Law (HALLEX) manual issuance.
3. Screening AC Cases
OAO staff must determine whether a pending claim(s) meets the criteria in section III.A.1. of this TI or whether it meets the criteria in section III.A.2. of this TI when processing a request for review. If a case meets the criteria in III.A.1., OAO staff will code it as instructed in section III.B. of this TI. If a case does not meet the criteria in III.A.1., or meets the criteria in III.A.2., OAO staff will not code the case.
OAO staff will not search for Casey cases; however, cases may periodically be referred to OAO pursuant to related Emergency Message (EM) 18004.
B. Coding Casey Cases
When recommending dismissal, an analyst will add the case characteristic “CASE” in the Appeals Review Processing System (ARPS) to the case. If the criteria outlined in III.A.1 above do not apply, no action is necessary.
If the adjudicator disagrees with the recommended AC dismissal or the request for review is ultimately not dismissed, the adjudicator or OAO staff will close the “CASE” characteristic in ARPS.
C. Casey Cases Identified After the AC has Issued a Final Action
The OAO may become aware of a Casey case after it has issued its final action. This will generally occur when a case is referred to OAO pursuant to related EM-18004. As it is not possible to add a case characteristic to a closed ARPS record, these cases will be internally tracked by the Executive Director's Office (EDO).
If OAO becomes aware of a Casey case after the AC has issued its final action and by a means other than referral under EM-18004, the employee identifying the Casey case will refer it through their management chain to the EDO or refer directly by emailing DCARO.OAO@ssa.gov.
If there are any questions regarding these instructions, OAO staff should route these through their management chain to the EDO.