Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
Sonny Austin Ramdeo
Docket No. A-24-72
Decision No. 3152
DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION
After reviewing the record to evaluate the issues presented by Sonny Austin Ramdeo (Petitioner) in appealing the administrative law judge (ALJ) Dismissal in Sonny Austin Ramdeo, CRD Docket No. C-24-570 (Aug. 16, 2024), and the ALJ’s denial of Petitioner’s subsequent motions to vacate the dismissal, we have determined that we need not render a separate decision. The ALJ dismissed Petitioner’s hearing request because it was not timely filed within 60 days of Petitioner’s receipt of the Inspector General’s exclusion notice dated May 31, 2016. Dismissal at 1-2 (citing 42 C.F.R. § 1005.2(c), (e)(1)). The ALJ found that the Inspector General (I.G.) issued the exclusion notice on May 31, 2016 (P. Ex. 1); Petitioner admitted receiving the exclusion notice and did not challenge the presumption of receipt five days after the date of the notice; and Petitioner’s request for hearing was not filed until July 4, 2024. Dismissal at 1-2, 5.
Before the Board, Petitioner does not dispute receiving the May 31, 2016 exclusion notice within five days of the date of the notice and concedes that his hearing request was not filed until July 4, 2024. Am. Br. in Supp. of Appeal (Am. Brief) at 3.1 Petitioner asserts, however, that the ALJ “ignored” a purported “good cause exception” under 42 U.S.C. § 405(b)(3) and “equitable tolling” principles that would have extended the 60‑day appeal deadline for almost eight years. Am. Brief at 2-3, 4. Petitioner did not raise either of these statutory and equitable arguments before the ALJ and, therefore, they are not properly before the Board. See 42 C.F.R. § 1005.21(e) (“The [Board] will not consider any issue . . . in the briefs that could have been raised before the ALJ but was not.”). We decline review for that reason alone. See, e.g., Devon Rambert-Hairston, DAB No. 3069, at 11 (2022) (declining to consider mitigating factor argument not raised before the ALJ); Diane Marie Krupka, DAB No. 3020, at 6 n.3 (2020) (declining to consider due process argument not raised before the ALJ).
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Even if these issues were properly before the Board, the Board has no authority to provide the relief Petitioner seeks. The statutory provision Petitioner points to, 42 U.S.C. § 405(b)(3), does not authorize ALJs to extend the time for filing a request for hearing in an I.G. exclusion case for “good cause.” Section 405(b)(3) provides only that, under certain circumstances, a failure to timely request review of adverse determinations concerning an application for Social Security benefits shall not serve as a basis for denial of a subsequent application for such benefits. Petitioner’s equitable tolling argument is also unavailing. “The regulations do not permit an ALJ or the Board to excuse a petitioner’s failure to meet the regulatory filing requirements based on equitable grounds.” See Kenneth Schrager, DAB No. 2366, at 6 (2011). As the ALJ correctly concluded, the Part 1005 regulations do not permit an ALJ to extend the 60-day deadline for good cause and an untimely hearing request must be dismissed. See 42 C.F.R. § 1005.2(e)(1) (“The ALJ will dismiss a hearing request where . . . [t]he petitioner’s . . . hearing request is not filed in a timely manner[.]”); Ishtiaq A. Malik, M.D., DAB No. 2962, at 9 (2019) (collecting cases), aff’d, No. 1:20-CV-00091, 2022 WL 1785240 (E.D. Va. June 1, 2022), aff’d, No. 22-1706, 2023 WL 4787442 (4th Cir. July 27, 2023); see also Boris Sachakov, M.D., DAB No. 2707, at 4 (2016); Gary Grossman, DAB No. 2267, at 5 (2009). Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Dismissal and the ALJ’s denial of Petitioner’s subsequent motions to vacate the dismissal.2
ENDNOTES
1 Petitioner filed a notice of appeal on August 23, 2024; an appeal brief on August 30; an “amended” appeal brief (Am. Brief) on September 7; and a reply brief on September 29. We cite to Petitioner’s amended brief because it supersedes his original appeal brief. In his amended brief, Petitioner asserts, for the first time, that he filed a request for hearing in December 2022 and in July 2024. Am. Brief at 3. We have reviewed all of Petitioner’s filings before the Board (including his exhibits) and the entire record before the ALJ. There is no evidence that Petitioner filed a request for hearing in December 2022 and, even if filed, such a request would be untimely.
2 In his briefing before the Board, Petitioner mischaracterizes the I.G.’s notice of intent to exclude, dated March 9, 2016, and Petitioner’s March 16, 2016 response to that letter. The March 9 notice of intent, issued pursuant to 42 C.F.R. § 1001.2001, is not an “exclusion notice,” it did not generate any appeal rights, and it was never presented to the ALJ. Moreover, Petitioner’s March 16 response (P. Ex. A) did not request a hearing or a copy of the I.G.’s file as Petitioner asserts (Am. Brief at 3-4, 7-8, 10); and, in any event, the subject of Petitioner’s request for hearing was not the notice of intent, but the May 31, 2016 notice of exclusion (P. Ex. 1). See Informal Brief of Petitioner at 1 (“The exclusion was communicated in a letter dated May 31, 2016 . . . .”). The notice of exclusion, which Petitioner does not deny receiving on or before June 6, 2016, complied with 42 C.F.R. § 1001.2002 and fully apprised Petitioner of his right to request a hearing within 60 days of receiving the notice of exclusion. P. Ex. 1, at 4; Dismissal at 5. The ALJ properly dismissed Petitioner’s appeal because, despite Petitioner’s receipt of the exclusion notice on or about June 6, 2016, Petitioner did not request a hearing until July 4, 2024.
/s/
Constance B. Tobias Board Member
/s/
Susan S. Yim Board Member
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Michael Cunningham Presiding Board Member