the fundamental issue in this case that's presented to the court is did the appeals council of the social security administration violate its  process violate them and mislead mr casey at least on four occasions telling him he had more time and it would consider the evidence that had been presented on the record and did the appeal of the social security administration probably due process by doing so we believe it did on july two thousand and thirteen when the appeals counsel abruptly and without explanation and contrary to what good had previously told mr casey that there would be more time for him to gather evidence of the prejudice caused him by the representations while he was in the witness protection program mr betts this is obviously a highly unusual case it is to put it mildly when was mr casey in the witness protection program he was officially in the witness protection program from nineteen eighty one give or take a few months that has that was not apparent but it is one thousand maybe one or eighty two to and through and including two thousand and nine indeed two thousand and nine was when he received notice from some security administration that the sort of security administration there were overpaid and casey is the name he used before the witness protection program yes your honor it was there's some correspondence in the record with his name casey during that time while he's in the pro is what was your family nineteen eighty four your honor he received word that his children in indiana were literally living in the backyard of neighbors in a tent on some occasions and even without a tent on another occasion and he so they weren't part of the program they were part of the witness protection program but at great risk to himself he left physically where he was in a witness protection program to essentially rescue his children from abandonment of his ex wife who was involved in the gang issues that he testified but he was still appeals council after the a l j ruled in two thousand and eleven in august that they were denying his his request to overturn this notice that he had received over payments and his counsel notified the appeals counsel that he had not received that decision and indeed the appeals counsel said fine we'll give you some more time he even and that is what occur stated what was good cause shown which pursuant to twenty c f r for all four point nine eleven was a reason for good cause that his counsel had not received a decision from the the so security administration prejudiced him and violated the due process rights that were at least owed to him and there are they cannot benefit from their wrong doing if anybody should benefit it should be mr casey who was never permitted to show his evidence even though they had assured him at least of the ability that appeals council would consider what was on the record right but hey if you've got additional evidence to submit at this regulatory we're still stuck with yale j record we provided to the source curative ministration it is evidence that was provided to mr casey of the social security administration at least seven years of knowledge from two thousand and two through an including two thousand and nine bit knowledge of his income yet they continue to pay him the payments and that was because he asked while he was in the witness protection program through his u s marshal lee ta continue those payments as part of his witness protection program is marshall turd available to testify about this well as unique cases what happened as is my practice of unique cases would simply not communicate with him for the reasons that mr casey relied on him and the only thing that sort of security administration offers as evidence that he should not have relied on it was because it was unreasonable to rely on the u s marshal in charge of his witness protection program he's the only your in your bun counsel if you want to  difficult to build those kinds of assets while on the witness protection program and he was denied by the appeals council in violation of due process rights to show that to be fal but he was gathering evidence as fully permitted and told to him by the appeals council when the if you lose council sue a sponsor to dismiss is appeal abruptly true and on behalf of the commissioner these facts are certainly unusual but the legal principles are actually civil procedure want to run if you look at the complaint if you accept all of the facts asserted in the complaint is true he still hasn't stated a claim for relief it's clear under section four of five g of the act and the bully decision that there is no review of the l g s decision when the appeals council dismisses the request  and it's unlikely it would see if the they had in fact granted cases request for an extension of time to request review it is unlikely that it would have later rescinded that determination without explanation right it and i assume that's because it would have been so arbitrary to have done so i mean again without explanation i mean there would have been no grant there would have been no explanation for granting it in the first place if you look at section one hundred seventy one of our regulations i'm asking you to look at the letter of april twelfth two thousand and twelve yes and what it says as we have granted your request for more time council you file your request for review sometimes people may have new evidence that's relevant to their place for review and the appeals counsel will say ok we will not act on your request for review for a certain period of time to allow you to submit new evidence  like to point out that the this april twelfth two thousand and twelve letter that he's construing as forgiving and timely filing it's from a legal assistant and there's no mention of good cars that are so what it says we have  request for more time before we act on ray k g s you will believe that assistant has the authority to send this letter correct the assistant has the authority to move then says any more evidence must be new and material to the issues considered in the hearing decision dated august twenty five two thousand and eleven meaning the merits of his request for a waiver correct i mean that's what that you know unfortunately this is a form letter but and he's asking for two things review for certain number of days and if you look at section one hundred he wanted the regulations there's a requirement of a showing of good cause and he offered a showing right  and gets this letter saying we've granted your request and if you want to send us any more evidence it needs to be about the merits not about timeliness i mean i i find it highly unlikely that they would let a legal assistant the requests for review so here again you know i i just have a very hard time reviewing seeing this as a legal assistant being able to find good cause a practicing lawyer if i had  this i would have figured i'd be wasting the government's time in my client's money by submitting additional evidence on the timeliness issue you for the size of the of the submission is an unsworn in and verified is there a legal of a lot of extensions of time counsel a lot of the extensions of time get granted in tribunals where it may not be a compelling request but you know you want to decide things on the merits not based on blown deadlines and so you let it go even if it is a decision maker even if it might have been possible to put up a fuss about it but once you said it's timely then you put that issue behind you and focus on the merits and that's what your legal assistance letter does here but it says for more time before we act on your case and look at what it says about the evidence to the submit right but that's that's i mean that's an unfortunate aspect of a form letter it's i mean that that that that sentence appears in every single one of these types of documents well that's unfortunate under these circumstances could you look at page forty three of the appendix so i think that was the dismissal order yes and it's those if you look down at about the fourth paragraph on april twenty fourth two thousand and twelve the claimant requested an additional thirty days to provide additional information before to complete i guess that's just a typo and a good cause statement in to provide the administration with additional evidence regarding his leak filing now i'm looking at that letter trying to find the request to provide additional information regarding good cause for the late filing or additional evidence about the late filing now  ordered dismissing from the appeals council is not a form of order no it's not but i don't see how somebody who read the april twenty fourth two thousand and twelve letter could describe it this way ok assuming that your it is true that this is a letter from plans counsel does not does that mention that assuming that you're correct and there was some confusion the confusion occurred after the filing was already untimely it doesn't excuse the untimely filing because later there after he's already been told we're going to consider your case for you also mentioned the point counsel in your brief you thought that the with the plaintiff had waived this issue in the district court by not presenting it properly in his original opposition to the motion to dismiss i mean i started off with plant that the complaint does not assert any facts and then in this motion an opposition i believe he was relying on an eleventh circuit acquiescence ruling which has merits of the algaes decision are not reviewable it's only the appeals council's dismissal order but second looking at the merits the l j found that he had several contacts with the field office and the key point would be unreasonable for somebody who has one contact with the federal government under his identity how could the marshal guarantee him social security benefits for life regardless of whether he worked or not he's the point of contact those deals are just regardless of what agent tart may have told them back in the day you can see in the ale jay's decision that he had contact with the source curity administration in one thousand nine hundred four i believe he made his children the representative  this this notion that he only had access to information from one person during the period of the of the overpayment they all share just that in the session but again just going back to the complaint there's the complaint that support the relief that he's now seeking there is nothing in the complaint that mentions the appeals council's because finding there's nothing in the complaint that mentions any facts about the about his because all of the facts asserted in the complaint even if you accept them mistruth they don't state a claim because the arrow keys decision is not reviewable where the appeals council dismisses the request fact that someone earns shows up income say on a tax form or something like that that doesn't necessarily mean that they're performing substantial gainful activity in and ineligible for disability benefits  can work part time or you can work under special programs and still retain eligibility a second important point there is that eligibility is on a quarter by quarter basis so even if the agency knew that the claimant had received a certain amount of money in a certain amount of year he may have been eligible during certain periods and ineligible during other periods depending upon when he earned that money and then the third thing is that because of the posture of this case we believe and mr casey is that the nature of the argument you just heard that there was a form letter and indeed that a male j's decision simply thank you counsel for both sides the case is taking under advisement