Julie Ashe v. ANDREW M. SAUL, Commissioner of Social Security

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JULIE ASHE,
Plaintiff-Appellant,

v.

ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 20-15531

D.C. No.
3:19-cv-07180-
LB

OPINION

Appeal from the United States District Court
for the Northern District of California
Laurel Beeler, Magistrate Judge, Presiding

Argued and Submitted November 20, 2020
San Francisco, California

Filed December 28, 2020

Before: Jacqueline H. Nguyen, Andrew D. Hurwitz, and
Daniel A. Bress, Circuit Judges.

Opinion by Judge Nguyen

2 ASHE V. SAUL

SUMMARY
*

Social Security
The panel vacated the district court’s judgment
dismissing as time-barred an action challenging the Social
Security Administration Appeals Council’s decision
affirming the denial of disability benefits.
Plaintiff alleged that she never received notice of the
Appeals Council’s decision affirming the denial of disability
benefits. Plaintiff learned of the decision eighteen months
after it was issued when her counsel called the Appeals
Council. The next day, she filed this lawsuit in the district
court. The district court found that the declarations from
plaintiff and her attorney were insufficient to rebut the
presumption, set forth under 20 C.F.R. § 422.210(c), that
plaintiff received notice five days after the Appeals
Council’s denial, triggering a 60-day deadline to file a
challenge in federal court.
The panel held that plaintiff made a sufficient
“reasonable showing” to rebut the presumption that notice
was received within five days of its issuance. The panel held
that the combination of circumstances in this case—
including unrebutted declarations from both plaintiff and her
attorney, an officer of the court, that neither received the
notice, where the face of the notice indicates that both were
supposed to have been mailed copies—was sufficient to
rebut the presumption and shift the burden of proving actual
receipt to the government. Because the district court did not

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

ASHE V. SAUL 3

perform this burden-shifting analysis, the panel vacated the
judgment of the district court and remanded for proceedings
consistent with its opinion.

COUNSEL

Andrew K. Shaffer (argued), Law Office of Borah &
Shaffer, Cupertino, California, for Plaintiff-Appellant.

Daniel P. Talbert (argued), Special Assistant United States
Attorney; Deborah Lee Stachel, Regional Chief Counsel,
Region IX; David L. Anderson, United States Attorney;
Office of the General Counsel, Social Security
Administration, San Francisco, California; for Defendant-
Appellee.

4 ASHE V. SAUL

OPINION
NGUYEN, Circuit Judge:
Julie Ashe claims that she never received notice of the
Social Security Administration Appeals Council’s decision
affirming the denial of disability benefits. Ashe learned of
the decision eighteen months after it was issued when her
counsel called the Appeals Council. The next day, she filed
this lawsuit in the district court, which dismissed it with
prejudice as time-barred. The district court found that
declarations from Ashe and her attorney were insufficient to
rebut the presumption that Ashe received notice five days
after the denial, triggering a 60-day deadline to file a
challenge in federal court. We vacate and remand.
I.
In November 2017, an administrative law judge denied
Ashe’s request for Social Security Insurance (“SSI”)
benefits, and on December 18, 2017, Ashe filed timely
written exceptions, which function as an appeal. The
Appeals Council denied the appeal on April 25, 2018. Ashe
and her attorney claim to have never received notice of the
denial.
Eighteen months later, on October 29, 2019, Ashe’s
counsel called the Appeals Council and learned for the first
time that Ashe’s appeal had been denied. Ashe sought
review of the denial in district court the next day. The
government filed a motion to dismiss and submitted a
declaration from an official in the Social Security
Administration’s Office of Appellate Operations, who
concluded from a review of Ashe’s electronic case file that
the Appeals Council issued its decision on April 25, 2018,
and that “[n]otice of the Appeals Council’s action . . . was

ASHE V. SAUL 5

sent to the plaintiff and representative,” i.e., her attorney.
The notice in the record contains a date and addresses for
both Ashe and her counsel, indicating that the notice was
intended to be sent to both of them, but the notice has no
indicia of mailing.
Ashe submitted declarations from herself, her counsel,
and the counsel’s legal secretary, all attesting to diligent
daily mail practices and failure to receive the notice. The
legal secretary stated that she is the only employee of the
counsel’s law office and is solely responsible for receiving,
sorting, and date-stamping mail. Ashe’s counsel stated that
he was present in his office and personally reviewed all his
incoming mail every business day between April 25, 2018
and June 28, 2018. Both attested they never received any
mail concerning Ashe’s case during this period. Ashe also
attested in her declaration that she had not received the
notice and that she had remained at the same residence
during the relevant period.
The district court nevertheless found that under
20 C.F.R. § 422.210(c), Ashe was presumed to have
received the notice five days after it was issued, and that
under 42 U.S.C. § 405(g), the deadline to file suit in district
court was therefore June 29, 2018. The district court further
found that Ashe’s declarations did not justify equitable
tolling of Ashe’s deadline and dismissed the case with
prejudice. Ashe timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s dismissal for failure to state
a claim, City of Oakland v. Wells Fargo & Co., 972 F.3d
1112, 1121 (9th Cir. 2020), and its determinations with

6 ASHE V. SAUL

respect to the statute of limitations, Huynh v. Chase
Manhattan Bank, 465 F.3d 992, 1003 (9th Cir. 2006).
III.
“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to
which he was a party . . . 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[.]” 42 U.S.C.
§ 405(g). “The date of receipt of . . . 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.” 20 C.F.R. § 422.210(c). Ashe bears the
burden to rebut the presumption, and if she succeeds, the
burden shifts to the government to show proof of receipt
more than sixty days before the complaint was filed in
district court. See, e.g., McCall v. Bowen, 832 F.2d 862, 864
(5th Cir. 1987). This is because although the claimant has
shown the 60-day period should not start from its presumed
start date under the regulation, the court must still “ascertain
when the period began to run.” Matsibekker v. Heckler,
738 F.2d 79, 81 (2d Cir. 1984).
We have not provided clear guidance on what constitutes
“a reasonable showing” to rebut the presumption that notice
was timely received. District courts within the Ninth Circuit
have resolved this question in different ways in cases
involving varying fact patterns, including Appeals Council
notices that were merely received late as opposed to not at
all. Some district courts have held that declarations
submitted in support of the claimant, standing alone, are
insufficient to rebut the presumption of timely receipt. See,
e.g., Thompson v. Colvin, No. 3:16-CV-05442-KLS, 2016
WL 6126028, at *3 (W.D. Wash. Oct. 19, 2016) (finding an
affidavit making “nothing more than the bare assertion” of

ASHE V. SAUL 7

late receipt insufficient); Downey v. Colvin, No. 3:12-CV-
02285-HA, 2013 WL 3526761, at *2 (D. Or. July 8, 2013)
(holding that “plaintiff has failed to provide affirmative
evidence that he did not receive the notice” by merely
“reiterat[ing] that the notice was not received”). Other
district courts have reached the opposite conclusion,
including when confronted with affidavits from both
claimants and their counsel. See, e.g., Jacobson v. Berryhill,
No. C17-5252-JPD, 2017 WL 3454574, at *4 (W.D. Wash.
Aug. 11, 2017) (observing a lack of “any binding precedent
which strictly defines ‘a reasonable showing’ in this
context,” and declining “to call into question the honesty of
attorneys who have submitted sworn statements under
penalty of perjury”); McKinney v. Berryhill, No. C17-5584-
JCC, 2017 WL 6760676, at *2 (W.D. Wash. Dec. 29, 2017)
(finding claimant had rebutted the presumption where he and
his attorney submitted sworn declarations stating that notice
was never received and that they only became aware of the
denial after the attorney called the Appeals Council months
after the denial).
The regulation requires only “a reasonable showing” that
the notice was not received five days after issuance,
20 C.F.R. § 422.210(c), a determination that is highly fact-
specific. Here, Ashe, her counsel, and her counsel’s legal
secretary all submitted detailed declarations. Ashe states
that she opens every piece of mail she receives and, given
her lengthy pursuit of benefits, was aware of the importance
of the Appeals Council decision. Ashe’s counsel has only
one employee, his legal secretary, and both the counsel and
the legal secretary aver that they received and reviewed all
incoming mail daily in the month following the decision.
Notably, the Appeals Council’s notice of decision was
addressed to both Ashe and her attorney; both have averred
that they never received it. Upon learning of the adverse

8 ASHE V. SAUL

decision, Ashe’s attorney filed the instant suit the very next
day.
The accuracy of the declarations has not been
challenged. At oral argument, the government insisted that
bare declarations are insufficient but could not provide an
example of anything else that Ashe could have offered to
prove non-receipt—and indeed, under the circumstances of
this case, it is difficult to imagine what other proof Ashe and
her attorney could have presented. On this record, we hold
that Ashe has made a sufficient “reasonable showing” to
rebut the presumption that notice was received within five
days of its issuance.
The government also suggested that Ashe should have
requested an extension of time under 20 C.F.R. § 422.210(c)
rather than file a complaint upon learning of the denial, but
the regulation does not include any such requirement.
Moreover, the regulation requires that the agency send
notice, not that claimants constantly follow up or risk
missing notice and thus the opportunity to seek review.
20 C.F.R. § 404.979. Assuming without deciding that a
claimant must show some level of diligence to rebut the five-
day regulatory presumption, there is no basis to conclude at
the motion to dismiss stage that counsel here failed to act
diligently when he contacted the Appeals Council eighteen
months after the decision to inquire about its status. As the
government conceded, it is not unusual for an Appeals
Council decision to take over a year. Indeed, at oral
argument, Ashe’s attorney stated without contradiction that
the Appeals Council took nineteen months to issue a notice
of decision on exceptions that Ashe had previously filed in
the same case.
The government cites McCall v. Bowen, 832 F.2d 862,
864 (5th Cir. 1987), and several unpublished out-of-circuit

ASHE V. SAUL 9

cases holding declarations insufficient to rebut the
presumption of receipt. However, as we have noted, whether
a claimant has made a “reasonable showing” of non-receipt
is a highly fact-dependent inquiry, and none of the cases
relied on by the government is factually similar. McCall
held that a claimant failed to rebut the presumption where
the claimant and his attorney submitted affidavits stating that
notice was received several months after the issue date. Id.
at 864–65. The Fifth Circuit reasoned that if it did not
require “‘a more concrete showing that the plaintiff or her
attorney actually did not receive the Secretary’s notice
within five days[,] . . . a tardy claimant could avoid the
jurisdictional requirements by merely asserting a late
delivery of the notice.’” Id. at 864 (quoting Rouse v. Harris,
482 F. Supp. 766, 769 (D.N.J. 1980)). Significantly,
however, the court also noted that even if the affidavits were
sufficient, the government sent the notice by certified mail
that had not been returned, which was “sufficient evidence
to support the finding that McCall received the notice
promptly after it was mailed.” Id. at 864–65. McCall, a late-
receipt case, did not address the two questions central to this
case: what could constitute “a more concrete showing”
where a claimant allegedly never received notice at all, id.
at 864, or what evidence of non-receipt might suffice where
the government does not use certified mail. Similarly,
subsequent unpublished court of appeals decisions involving
late receipt, relied on by the government, are not sufficiently
analogous to the situation here.
1

1
See, e.g., Wurst v. Comm’r of Soc. Sec., 767 F. App’x 842, 844–45
(11th Cir. 2019) (per curiam) (finding that a claimant’s bare declaration
alleging late receipt was not sufficient to rebut the presumption of notice
and, in any event, the complaint was still untimely filed); McLaughlin v.
Astrue, 443 F. App’x 571, 574 (1st Cir. 2011) (per curiam) (finding

10 ASHE V. SAUL

We recognize that there is a significant interest under the
statute in preventing the “belated litigation of stale eligibility
claims.” Califano v. Sanders, 430 U.S. 99, 108 (1977). We
have no occasion to decide whether there are circumstances
in which a claimant’s own declaration, without more, would
be sufficient to rebut the presumption or whether different
principles would apply in cases involving late receipt, as
opposed to non-receipt. Rather, the combination of
circumstances in this case—including unrebutted
declarations from both Ashe and her attorney, an officer of
the court, that neither received the notice, where the face of
the notice indicates that both were supposed to have been
mailed copies—is sufficient to rebut the presumption and
shift the burden of proving actual receipt to the government.
Because the district court did not perform this burden-
shifting analysis, we vacate the judgment of the district court
and remand for proceedings consistent with this opinion.
2

VACATED AND REMANDED.

affidavits alleging late receipt are insufficient, standing alone, to rebut
the presumption); Garcia v. Comm’r of Soc. Sec., 53 F. App’x 192, 194
(3d Cir. 2002) (holding that claimant and attorney affidavits alleging late
receipt, along with inquiry letters, were not enough to rebut the
presumption).
2
In light of our ruling, we need not address the district court’s
decision on equitable tolling.