Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
|IN THE CASE OF|
Social Security Administration,
Office of the Inspector General
|DATE: June 05, 2006|
- v -
| Docket No.C-05-511
Decision No. CR1455
Respondent, Allen Bassel, is a recipient of Social Security disability benefits. The Inspector General for the Social Security Administration (I.G.) charges that he made misrepresentations in his application for child's insurance benefits and in a request to be selected as representative payee for his children. Respondent Bassel appealed the I.G. determination, but his appeal was not timely filed, and the I.G. asked that the matter be dismissed. In a ruling dated January 20, 2006, I denied the I.G.'s motion and declined to dismiss the appeal. Based on newly discovered evidence, the I.G. now asks that I reconsider my January 20, 2006 ruling.
For the reasons set forth below, I grant the I.G.'s motion and dismiss this case.
In a demand letter dated March 23, 2005, the I.G. advised Respondent Bassel that the I.G. was imposing against Respondent a civil money penalty (CMP) of $38,010 ($28,010 assessment plus $10,000 penalty) because: 1) he omitted from his July 20, 2000 application for child's insurance benefits the material fact that his sons did not live with him; and 2) in a July 20, 2000 request to be selected as payee, he falsely reported that his sons lived with him.
The demand letter advised Respondent of his right to request a hearing before an Administrative Law Judge (ALJ), and said that such request had to be filed within 60 days of his receiving the letter. The letter included a copy of the regulations governing these proceedings, and emphasized:
The I.G. sent the demand letter by certified mail, and Respondent's wife, Suzann Bassel, signed for it on April 6, 2005. To be timely, Petitioner's hearing request should have been filed on or before June 6, 2005 (June 5 being a Sunday). No appeal was filed within that time. Respondent's attorney eventually requested a hearing by letter dated August 11, 2005.
On August 25, 2005, the I.G. asked that Mr. Bassel's appeal be dismissed as untimely. Respondent Bassel opposed, asserting that he had no specific memory of his wife showing him the demand letter or even telling him about it. Mr. Bassel implied, without explicitly saying, that he did not notify his attorney that he had received the letter. He argued that, even if his wife had advised him of the notice, he "would have assumed that any letters sent to me by the Social Security Administration would have been sent to my attorney . . . who has represented me for a long time in this case." Affidavit of Allen Bassel, dated December 12, 2005. In fact, the I.G. had not sent a copy of the notice to his attorney. Mr. Bassel also argued that his severe neurological condition and the remote location of his home precluded him from maintaining close contact with an attorney. He submitted a daily ledger of his activities, purporting to show that he was so incapacitated on virtually every single day between April 10 and August 6, 2005, as to have been incapable of contacting an attorney and responding to the I.G. notice.
I accepted Respondent Bassel's representations, and, in a ruling dated January 20, 2006, I found good cause for the late filing. In that ruling I concluded that the I.G.'s failure to send a copy of the March 23, 2005 demand letter to Respondent's counsel did not relieve Respondent of his obligation to pursue timely his hearing rights. Nevertheless, I determined that Respondent Bassel had shown that he suffers from a neurological impairment, and that symptoms of that impairment persisted during the time he should have been responding to the notice letter (April 6 - June 6, 2005), and established good cause for extending the filing deadline.
In an order dated February 16, 2006, I directed the parties to submit their pre-hearing exchanges. On April 17, 2006, the I.G. submitted its exchange, which included a Request for Reconsideration of my January 20, 2006 Ruling, accompanied by supporting documents. In a filing dated May 17, 2006, Respondent Bassel answered the I.G.'s Request for Reconsideration. I subsequently stayed the briefing schedule pending my resolution of the I.G.'s motion.
For purposes of this decision, I admit Social Security Administration Exhibit (SSA Ex.) 1, Attachment (Attach.) C, which are court records from the Maricopa County Superior Court as well as correspondence written by Respondent, and SSA Exs. 2, 3, and 28, which are copies of records from the United States Bankruptcy Court.
The regulations mandate that a hearing request be filed within 60 days after notice is received by the respondent "or upon a showing of good cause," within the time permitted by the ALJ. 20 C.F.R. § 498.202(c)(2). The ALJ must dismiss an untimely hearing request when the respondent fails to demonstrate good cause. 20 C.F.R. § 498.202(f)(1). To demonstrate good cause for late filing in this case, Respondent Bassel suggested that, assuming he was even aware of the March 23, 2005 notice letter, he was simply not capable of responding timely because of his mental impairment.
The I.G. now contends that my January 20, 2006 ruling was based upon misleading and incomplete information provided by Respondent. In support of this assertion, the I.G. submits, among other documents, records from the United States Bankruptcy Court for the District of Arizona. SSA Exs. 2, 3, 28. These records show that Respondent Bassel filed for Chapter 7 Bankruptcy on January 25, 2005. SSA Ex. 2. That case was dismissed by the court, and, on April 4, 2005, Respondent Bassel filed for Chapter 13 Bankruptcy. SSA Ex. 3, at 4. On April 19, 2005 - two weeks after his wife signed the certified mail receipt for the I.G. demand letter - Respondent sent to SSA a "Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, and Deadlines." SSA Ex. 28. On May 4, 2005 - four weeks after his wife signed the certified mail receipt - Respondent Bassel signed and filed with the Bankruptcy Court a document titled "Schedule E - Creditors Holding Unsecured Priority Claims," which lists, among other debts, the $38,010 "benefit overpayment" to the Social Security Administration. SSA Ex. 3, at 1, 13, 28. (2)
Respondent does not dispute any of these facts. Instead, he argues that the I.G.'s allegations are "neither timely raised nor germane." Respondent's May 17, 2006 Answer. He suggests that, if anything, his involvement with the bankruptcy and a child support dispute "might actually strengthen [his] argument that he was so distracted that he was at that time unable to focus" on the CMP. Id. He dismisses as "conjecture only" the allegation that Respondent's bankruptcy attorney must have known about the demand letter. Id. at 2.
I find Respondent's position wholly without merit. With respect to the timeliness of the I.G.'s Request for Reconsideration, Respondent cites no authority, and I am aware of no authority, that would preclude the I.G. from bringing these facts to my attention whenever the I.G. became aware of them. I note also that the bankruptcy filing was obviously well known to Respondent Bassel, and he does not explain or justify his withholding that material fact when he argued good cause for his delay in filing this appeal.
I also find unsupported any suggestion that Respondent Bassel was distracted by child support litigation. It appears that the bulk of the child support dispute occurred prior to 2005. See SSA Ex. 1, Attach. C. On March 15, 2005, Respondent Bassel and his attorney appeared telephonically before the Maricopa County Superior Court. At that proceeding, the Court affirmed a prior ruling denying his Motion for New Trial and Motion for Reconsideration, which seems to have resolved the matter. So any child support litigation was completed well before Respondent Bassel received the I.G.'s demand letter.
With respect to Respondent's other arguments, I can reasonably infer from the Bankruptcy Court filings that Respondent Bassel received the demand letter, that he well understood its implications, that he shared the contents of that letter with his bankruptcy attorney, and that, rather than appeal the I.G.'s determination, he decided to consider the $38,010.00 CMP a debt and attempt to discharge that debt through the bankruptcy proceeding. (3) Respondent Bassel offers no evidence to counter these reasonable inferences. In any event, his actions are incompatible with the notion that he was so impaired as to be incapable of timely requesting a hearing.
For the reasons discussed above, I find no good cause for extending Respondent's time to appeal, and dismiss this appeal pursuant to 20 C.F.R. § 498.202(f)(1).
Carolyn Cozad Hughes
Administrative Law Judge
1. I make this one finding of fact/conclusion of law to support my decision in this case.
2. According to the I.G., only the March 23, 2005 demand letter specified the exact amount of the CMP. Respondent would not have learned the exact amount from any other source. See I.G. Br. at 2. Respondent has not challenged this assertion nor pointed to any other document that specifies the amount of the CMP.
3. Unfortunately for Mr. Bassel, a CMP, such as the one imposed here, is not dischargeable in bankruptcy. See 11 U.S.C. § 523(a).