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USCA1 Opinion
June 27, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2326
MARIE ELIZABETH PISCOPO,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Marie Elizabeth Piscopo on brief pro se.
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Donald K. Stern, United States Attorney, Charlene A. Stawicki,
________________ _____________________
Special Assistant United States Attorney, and Paul Germanotta,
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Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
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Per Curiam. Plaintiff Marie Elizabeth Piscopo
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appeals a district court judgment dismissing her complaint
for judicial review of a decision by the Secretary of Health
and Human Services that required her to repay a $727.40
overpayment. The district court ruled that it lacked subject
matter jurisdiction because plaintiff failed to file a timely
complaint under 42 U.S.C. 405(g).1 We affirm.
I.
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Appellant received a single lump-sum payment
representing child's insurance benefits in October 1979. The
Secretary later determined that an overpayment had been made
and attempted to recoup same from plaintiff. Administrative
proceedings ensued, the precise details of which are not
clear because the full administrative record is not before
us. It is undisputed that on September 14, 1987, an
administrative law judge (ALJ) determined that plaintiff was
overpaid $727.40, that plaintiff was without fault in causing
the overpayment, and that recovery of the overpayment would
not be waived. See 20 C.F.R. 404.506-404.509. Plaintiff
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sought review of this decision by the Appeals Council.
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1. 42 U.S.C. 405(g) provides that:
Any individual, after any final decision of the
Secretary made after a hearing to which he was a
party, irrespective of the amount in controversy,
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 or within
such time as the Secretary may allow . . .
On May 25, 1988, the Appeals Council issued a
decision which affirmed the ALJ's conclusions. The Appeals
Council's decision stands as the final decision of the
Secretary. That decision was accompanied by a notice which
informed plaintiff that she could obtain judicial review of
the Appeals Council's decision by filing a complaint with the
appropriate federal district court "within sixty (60) days
from the date of receipt of this letter." The notice also
stated that "[i]t will be presumed that this letter is
received within five (5) days after the date shown above
[i.e., May 25, 1988] unless a reasonable showing to the
contrary is made."2
Plaintiff commenced the instant action for judicial
review of the Appeals Council's decision by filing her
complaint with the Worcester Division of the United States
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2. The Appeals Council's notice appears to be modelled on 20
C.F.R. 422.210(c), the regulation which implements 42
U.S.C. 405(g). That regulation provides:
Any civil action . . . [for judicial
review of the Secretary's final decision]
must be instituted within 60 days after
the . . . notice of the decision by the
Appeals Council is received by the
individual, . . . except that this time
may be extended by the Appeals Council
upon a showing of good cause. For
purposes of this section, 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. . . .
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District Court for the District of Massachusetts. The docket
reflects that this complaint was filed on February 8, 1989,
more than eight months after the Appeals Council issued its
decision. Initially, the Secretary moved to remand the case
because the Department of Health and Human Services was
unable to locate plaintiff's file. The Secretary ultimately
withdrew the motion to remand and filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(2). The motion was
supported by the affidavit of Joseph Ponton, a division chief
within the Social Security Administration's Office of
Hearings and Appeals, and portions of the administrative
record. Essentially, the Secretary argued that the district
court lacked jurisdiction because the complaint was not filed
until almost nine months after the Appeals Council issued its
decision and plaintiff failed to request an extension from
the Appeals Council. Plaintiff opposed the Secretary's
motion. She maintained that her action should be considered
timely because she did not receive the Appeals Council's
decision until June 9, 1988 and that she tried to commence
this suit on August 5, 1988 by filing a copy of the notice
that accompanied the Appeals Council's decision with the
district court clerk on that date.3
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3. Plaintiff initially asserted this argument in her
response to the Secretary's motion to remand. That response
includes a copy of the Appeals Court's May 25, 1988 notice
which appears to bear the district court's time stamp of
(continued...)
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The district court determined that the record was
insufficient to allow resolution of the Secretary's motion
and ordered the Secretary to submit an affidavit stating the
date on which the Appeals Council's decision was mailed to
plaintiff. The court also ordered plaintiff to submit an
affidavit stating the date that she received the Appeals
Council's decision. Plaintiff submitted a sworn response
reiterating her contentions that she received the Appeals
Council's decision on June 9, 1988 and that she attempted to
file a copy of the notice that accompanied that decision as
her pro se complaint on August 5, 1988. Plaintiff further
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averred that the court found her original "pro se summons"
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unacceptable and that she was assured that the time stamp on
the Appeals Council's notice was sufficient evidence that she
commenced her action within the sixty-day period.
Plaintiff's response was accompanied by another copy of the
Appeals Council's notice with the curious time stamp, a
photocopy of the civil action cover sheet with "8/5/88"
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3. (...continued)
August 5, 1989. The "9" appears to have a mark drawn through
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it. Plaintiff maintains that the date is really August 5,
1988 and that she "was informed said stamp would allow
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sufficient time to complete an acceptable pro se summons and
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subsequent summons was filed in finished form . . . on
February 8, 1989." Plaintiff appears to be referring to her
complaint when she speaks of a "summons."
-5-
written at the bottom,4 and a photocopy of an undated civil
action category sheet.
The Secretary submitted another affidavit by Joseph
Ponton who swore that plaintiff's file showed that the
Appeals Council sent its decision by mail to plaintiff's post
office box on May 25, 1988 and that it is the custom of the
Office of Hearings and Appeals to place such notices in the
mail on the date shown on the notice. The Secretary also
challenged plaintiff's assertion that she commenced this
action on August 5, 1988 and pointed out (correctly in our
view) that the time stamp appears to be dated August 5, 1989.
However, plaintiff filed an additional affidavit which also
correctly pointed out that August 5, 1988 fell on a Friday
while August 5, 1989 fell on a Saturday. Thus, plaintiff
claimed that she could not possibly have filed the notice in
1989.
The district court found that the Appeals Council
issued its decision on May 25, 1988 and that plaintiff filed
an untimely complaint on February 8, 1989. The court did not
specifically address plaintiff's claim that this action
should be considered timely because she tried to file a pro
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se complaint with the clerk on August 5, 1988. The district
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court's ruling appears to have implicitly rejected this
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4. We note that the original civil action cover sheet is
time-stamped February 8, 1989.
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argument in allowing the Secretary's motion to dismiss.
Judgment was entered on November 23, 1993. This appeal
followed.
II.
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On appeal, plaintiff argues that the district court
erred by failing to consider her status as a pro se litigant.
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Although her argument is not clearly stated, plaintiff seems
to be saying that she attempted to file her pro se action on
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August 5, 1988, that her filing was rejected by the clerk
because it was not in proper form, and that the clerk time-
stamped the copy of the Appeals Council's notice that
plaintiff attempted to file and assured her that this was
sufficient to make her action timely under 42 U.S.C.
405(g).5 Plaintiff says that, under these circumstances,
this case should be allowed to proceed.
For purposes of resolving this appeal we shall
assume, without deciding, that plaintiff attempted to file a
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5. Plaintiff's brief, pp. 2-3, states that the clerk time-
stamped the notice "with the assurance that a reasonable
refiling would be within a six-month period" from the date of
the stamp. As plaintiff maintains that the stamp is dated
August 5, 1988, her argument implies that the clerk assured
her that she had until February 1989 to file a proper
complaint. While this argument was raised below in the
plaintiff's opposition to the Secretary's request to remand,
it is slightly different from plaintiff's claim that the
clerk assured her than the time-stamp was sufficient evidence
that this action was commenced on August 5, 1988. Plaintiff
does not squarely make this argument on appeal.
Nevertheless, in view of our custom to construe pro se
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filings liberally, we have considered both contentions.
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pro se complaint on August 5, 1988 and that the district
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court clerk erred in rejecting it. See Case v. Califano, 441
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F. Supp. 304, 306 n.1 (D.S.C. 1977) (noting that the filing
of a copy of the Appeals Council's rejection letter was
sufficient to commence civil action where court had "seen all
types of scraps of paper construed as proper complaints in
pro se prisoner actions"). We note that in 1991, Rule 5(e)
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of the Federal Rules of Civil Procedure was amended to
provide that, "[t]he clerk shall not refuse to accept for
filing any paper presented for that purpose solely because it
is not presented in proper form as required by these rules or
any local rules or practices."6 While this rule did not
exist before 1991, we shall assume for purposes of this
appeal that the complaint plaintiff filed on February 8, 1989
may relate back to August 5, 1988, the date she allegedly
first attempted to file suit.7 Thus, the question is
whether dismissal was proper if plaintiff's action is deemed
to have been commenced on August 5, 1988.
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6. The Advisory Committee notes to this amendment indicate
that it was intended to proscribe several local district
rules which directed clerks to refuse to accept papers for
filing that were not in proper form. This practice was
criticized because it exposed litigants to potential time
bars and was "not a suitable role for the office of the
clerk. . . ."
7. Thus, we need not resolve whether the time-stamp on the
Appeals Council's notice is dated 1988 or 1989.
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It is well-established that the 60-day filing
period set forth in 42 U.S.C. 405(g) is not jurisdictional,
but rather constitutes a statute of limitations. See Bowen
___ _____
v. City of New York, 476 U.S. 467, 478 (1986). As such, the
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limitation period constitutes a condition on the waiver of
sovereign immunity that must be strictly construed. Id. at
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479; Leslie v. Bowen, 695 F. Supp. 504, 506 (D. Kan. 1988).
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Thus, 42 U.S.C. 405(g) "generally precludes late judicial
challenge to the denial of benefits." Willow v. Sullivan,
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733 F. Supp. 591, 594 (N.D. N.Y. 1990).
Although 42 U.S.C. 405(g) requires civil actions
for judicial review of the Secretary's final decisions to be
commenced within 60 days after the mailing of the notice of
decision or "such time that the Secretary may allow," courts
agree that 20 C.F.R. 422.210(c) makes the date that the
claimant receives the Secretary's notice of decision the
trigger point for statute of limitations purposes. See,
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e.g., Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir. 1990)
____ _____ ________
(per curiam); Wong v. Bowen, 854 F.2d 630, 631 (2nd Cir.
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1988) (per curiam). Cf. Hatchell v. Heckler, 708 F.2d 578,
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579 (11th Cir. 1979) (60 days runs from date of notice of
decision or date of receipt). Moreover, 20 C.F.R.
422.210(c) creates a rebuttable presumption that the date of
receipt is five days after the date of the notice unless the
plaintiff makes "a reasonable showing to the contrary." See,
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e.g., McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987);
____ ______ _____
Matsibekker v. Heckler, 738 F.2d 79, 81 (2nd Cir. 1984);
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Leslie v. Bowen, 695 F. Supp. at 505; Bartolomie v. Heckler,
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597 F. Supp. 1113, 1115 (N.D. N.Y. 1984); Worthy v. Heckler,
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611 F. Supp. 271, 273 (W.D. N.Y. 1985); Chiappa v. Califano,
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480 F. Supp. 856, 857 (S.D. N.Y. 1979).
It is undisputed that the Appeals Council dated and
mailed its decision to plaintiff on May 25, 1988. Under 20
C.F.R. 422.210(c), the Secretary is entitled to a
rebuttable presumption that plaintiff received this decision
five days later on May 30, 1988. Any civil action for
judicial review of that decision must have been commenced
sixty days thereafter, i.e., by July 29, 1988, in order to be
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timely.
Plaintiff argues that she did not actually receive
the Secretary's notice until June 9, 1988, and, therefore,
her filing of August 5, 1988, was timely. In support of this
assertion, plaintiff avers that, for many years she
maintained a post office box for the receipt of mail. She
claims that she did not visit the post office daily, but
weekly or biweekly for her convenience.8 While that may be
so, it does not establish that the Secretary's notice was not
delivered to plaintiff's post office box within five days of
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8. Plaintiff made these averments in the supplemental
affidavit that she filed in response to the Secretary's
motion to dismiss.
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its mailing on May 25, 1988. The fact that plaintiff may
have chosen not to pick up her mail until some time after it
was delivered does not refute the presumption that it was
received. To hold otherwise would mean that any claimant
could avoid the limitations period by simply asserting that
he did not open his mail. We do not think that the filing
deadline may be side-stepped so easily. See McCall v. Bowen,
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832 F.2d at 864-65 (holding that Appeals Council was entitled
to conclude that affidavits of plaintiff and his counsel
which claimed that they did not receive notice of Appeals
Council's decision until over two months after its mailing
were insufficient to rebut presumptive date of receipt);
Leslie v. Bowen, 695 F. Supp. at 506 (rejecting plaintiff's
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uncorroborated claim that he did not receive May 9, 1988
notice until May 23, 1988); Rouse v. Harris, 482 F. Supp.
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766, 768-69 (D.N.J. 1988) (rejecting claims of plaintiff and
her counsel denying receipt of separate notices of Appeals
Council's decision absent "a more concrete showing that the
plaintiff or her attorney actually did not receive the
Secretary's notice within five days" of mailing).9
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9. We recognize that the plaintiffs in these cases were all
represented by counsel and that the Appeals Council sent its
decisions to Rouse and McCall by certified mail, thus
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arguably making a stronger case for applying the presumption
in 20 C.F.R. 422.210(c). But we do not think that these
distinctions are important here, where plaintiff concedes
that she received the Appeals Council's notice and only
contests the applicable date of receipt. Plaintiff's
(continued...)
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Accordingly, we conclude that plaintiff's assertion
that she did not receive the Secretary's notice until June 9,
1988 because she failed to pick up her mail before then is
insufficient to rebut the presumption that the notice was
received within five days of its date and mailing on May 25,
1988. Thus, even if plaintiff commenced this action on
August 5, 1988, it remains time-barred.
Plaintiff's remaining arguments on appeal do not
further her cause. She notes that the law allows the
Secretary to extend the appeal period for "good cause." See
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20 C.F.R. 404.911. She says that good cause is present
here because she took a "few months" to prepare her complaint
as a result of directions received from the district court
clerk. But as the limitations period had already expired by
the time plaintiff purportedly received these directions, her
reliance on the clerk did not defeat her appeal. Moreover,
generally only the Secretary has the power to grant
extensions for good cause. See Matsibekker v. Heckler, 738
___ ___________ _______
F.2d at 81.10
Plaintiff also points out that the Secretary was
not prejudiced by the late filing of her complaint. The
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9. (...continued)
reliance on a post office box made certified mail impractical
in this case.
10. This is not a case like Bowen v. City of New York, 476
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U.S. at 479-82, where the government's misconduct justified
the application of the principle of equitable tolling.
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point is irrelevant. The Secretary is not obliged to waive a
statute of limitations defense, particularly where the
limitations period serves "to move cases to speedy resolution
in a bureaucracy that processes millions of claims annually."
Bowen v. City of New York, 476 U.S. at 481. See also
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Thibodeaux v. Bowen, 819 F.2d 76, 79 (5th Cir. 1987) (per
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curiam) (affirming dismissal of disability appeal where
Secretary declined to waive limitations defense). Thus,
contrary to plaintiff's belief, dismissal on this ground does
not elevate form over substance. Finally, plaintiff argues
that the Social Security Administration erred in finding that
she received an overpayment and that the Appeals Council
erred by failing to consider evidence from one of plaintiff's
employers which would have proven that the overpayment was
incorrectly assessed. Because we ground our decision on the
statute of limitations, we need not reach these contentions.
Judgment affirmed.
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Document Info
Docket Number： 93-2326
Filed Date： 6/27/1994
Precedential Status： Precedential
Modified Date： 9/21/2015