The opinion of the court was delivered by: MENCER
Tammie L. A. Silvis has petitioned this court, pursuant to 28 U.S.C. § 1361 (1962), for a writ of mandamus. The petitioner seeks to compel the Secretary of Health and Human Services to commence payment to her of Social Security disability insurance benefits and Supplemental Security Income (SSI) benefits. The disposition of the petition hinges on an issue not yet addressed by the court of appeals in this circuit, and decided only by the Court of Appeals for the Eighth Circuit.
Stated briefly, the issue is whether the Secretary's regulations permit the Secretary, as well as the claimant, to reopen a determination or decision of an administrative law judge (ALJ) after the sixty-day period for internal appeal has elapsed.
The dispute stems from somewhat unusual facts, perhaps explaining the paucity of relevant precedent and the peculiarity of the remedy sought. Tammie Silvis applied to the Social Security Administration (SSA) for disability insurance and SSI benefits in September 1982. After her initial application and request for reconsideration were denied, Ms. Silvis appeared before an ALJ. The ALJ conducted a hearing and received evidence from both the SSA and Ms. Silvis regarding her claimed disability. In a decision dated April 14, 1983, the ALJ determined that Ms. Silvis was entitled to benefits under both disability programs.
Subsequently, petitioner received a letter dated June 29, 1983 from the Secretary's Office of Hearings and Appeals. That letter notified Ms. Silvis that the Appeals Council had decided to reopen the April 14, 1983 ALJ decision. The letter also informed her that the disability determination made by the ALJ was subject to revision by the Appeals Council and that she could submit additional evidence in support of her claim within twenty days.
Ms. Silvis, by her counsel, directed a letter to the Office of Hearings and Appeals on July 15, 1983 challenging the right of the Appeals Council to reopen and revise the ALJ's decision in her case. She further informed the council that under the Secretary's regulations she was entitled to benefits. She demanded that payment of those benefits commence immediately. It is the understanding of the court that no benefit payments have been made, thus giving rise to this petition for writ of mandamus.
The Secretary's Appeals Council failed to invoke its right to review the ALJ's decision within sixty days after the date of the hearing decision. 20 C.F.R. §§ 416.1469, 404.969 (1983). For obvious reasons, the claimant did not request that the Appeals Council review the ALJ's decision within sixty days as provided by the regulations. 20 C.F.R. §§ 416.1468, 404.968 (1983). The main issue for the court, therefore, is whether the Secretary, acting through the Appeals Council, may, on her own initiative, reopen a decision.
At the outset, we examine the jurisdictional question raised by the Secretary-respondent's motion to dismiss the petition. The Secretary contends that this court does not have subject-matter jurisdiction until the Appeals Council renders a final decision on Ms. Silvis' reopened claim. As the Secretary notes in her brief, it is well settled that a claimant must exhaust all administrative remedies before seeking judicial review. See 42 U.S.C. § 405(g) (1980). The very issue in this case, however, is whether the Secretary can properly reopen and revise an ALJ's decision under her regulations. Petitioner has not asked the court to review the Secretary's findings on the question of disability. This dispute involves a purely procedural matter. In essence, petitioner contends that her administrative remedies have been exhausted, a final decision has been rendered in her favor, and now the Secretary seeks to upset, or at least review, that final decision.
The court in Dietsch v. Schweiker, 700 F.2d 865 (2d Cir. 1983), faced a jurisdictional question similar to the one presented by this case. In Dietsch, the claimant sought to compel the Appeals Council to perform its duty with respect to his request for review. The only issue was whether the request had been timely filed. The dispute was purely procedural, unrelated to the merits of the claim for benefits. Id. at 868. The Dietsch court concluded that jurisdiction existed under 28 U.S.C. § 1361 (1962). The court reasoned that mandamus jurisdiction was proper where otherwise unreviewable procedural issues not related to the merits of a claim for benefits were involved. Id.
We accept the holding of Dietsch2 and conclude that subject-matter jurisdiction exists in this case pursuant to 28 U.S.C. § 1361 (1962).
The court recognizes that issues of administrative law often involve a delicate balancing of authority among the legislative, executive and judicial branches of government. Accordingly, it is now axiomatic that an agency's interpretation of its own regulations deserves great deference in the courts when the regulations are promulgated with statutory authority. See U.S. v. Larionoff, 431 U.S. 864, 872, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977); Udall v. Tallman, 380 U.S. 1, 16-17, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965). We need not defer to the agency, however, if its interpretation is plainly inconsistent with the wording of the regulation, or otherwise deprives affected parties of fair notice of the agency's intentions. See Larionoff, 431 U.S. at 872-73; Udall, 380 U.S. at 16-17; 4 K. Davis, Administrative Law § 30.12 (1958).
The court has no doubt that the regulations in question here were promulgated with statutory authority. See 42 U.S.C. § 405(a) (1935). We now determine whether the Secretary's interpretation, which would permit her to reopen and revise SSA decisions, comports with the wording of the regulations.
On the subject of reopening and revising decisions, the Secretary's regulations provide:
(a) General. Generally, if you are dissatisfied with a determination or decision made in the administrative review process, but do not request further review within the stated time period, you lose your right to further review. However, a determination or a decision in your case may be reopened and revised. ...