Monday, December 28, 2020

Ashe v. Saul (9th Cir. - Dec. 28, 2020)

Thank goodness for decisions like this one.

You'd think they'd be routine.  A regulation says that when a notice is mailed it's "presumed" to have been received by the recipient.  Which totally makes sense.  So here, according to an electronic entry in the file, the Social Security Administration Appeals Council apparently did mail notice to a particular claimant and her counsel.  Okay so far.

But both the claimant and her counsel swear, under penalty of perjury, that they never received the thing.  Which is eminently possible.  Maybe the electronic entry was wrong.  Maybe the post office lost the mail.  So the Ninth Circuit says -- entirely reasonably -- that these sworn declarations rebut the presumption.  A presumption that's not conclusive or anything; it's just that, a presumption.  Presumptions can be rebutted, and if the multiple sworn declarations here aren't good enough to rebut the presumption of delivery, it's at least difficult (if not impossible) to think of anything that could rebut the presumption.

So great.  Awesome.  Seems exactly right.

Yet, as the opinion mentions, there are all these other cases that hold that declarations like these don't rebut the presumption.  Opinions that are clearly motivated by a need for finality and, probably implicitly, an underlying belief that the declarants are lying (but without a willingness to expressly say so or to require the lower court to so find).

I get the need for finality.  I get the (entirely well-founded) belief that people may lie, and that their lies may be difficult to definitively disprove.

But we deal with things like this all the time.  People sometimes lie.  In criminal cases, in civil cases, in everything.  We deal with that by deciding credibility.  If we think that someone's telling the truth when they say they didn't receive a document that an electronic notification says was sent, then so be it; the presumption of delivery is rebutted.  If we think they're lying -- for example, if it was sent certified mail, or there's a signature, or simply if we don't find their story credible -- then the presumption isn't, and (for good reason) we don't bar people from challenging decisions of which they have no notice.

Totally fair.  Totally right.  And unfortunate that all courts can't agree on at least this simple, basic principle