Pettway ex rel. Pettway v. Barnhart

• Decision Date: 12 November 2002
• Docket Number: No. CIV.A. 02-0004-CBS.,CIV.A. 02-0004-CBS.
• Citation: 233 F.Supp.2d 1354
• Parties: Jean PETTWAY, o/b/o James E. PETTWAY, Jr., Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Alabama

233 F.Supp.2d 1354

Jean PETTWAY, o/b/o James E. PETTWAY, Jr., Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

No. CIV.A. 02-0004-CBS.

United States District Court, S.D. Alabama, Northern Division.

November 12, 2002.

Micki Beth Stiller, Montgomery, for plaintiff.

Patricia Nicole Beyer, Mobile, for defendant.

ORDER

BUTLER, Chief Judge.

After due and proper consideration of all pleadings in this file, and there having been no objections filed, the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is adopted as the opinion of this Court.

It is ORDERED that the Commissioner's Motion to Dismiss be DENIED.

REPORT AND RECOMMENDATION

STEELE, United States Magistrate Judge.

This action is before the Court on the defendant's motion to dismiss. (Doc. 7).¹ The motion has been referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned has determined that oral argument is unnecessary to resolve the motion. See Local Rule 7.3. Upon careful consideration of the evidence and the parties' arguments as raised in their memoranda, (Docs.8, 10, 11, 13, 14), the undersigned respectfully recommends that the defendant's motion to dismiss be denied.

The relevant statute of limitations requires that a lawsuit challenging the denial of benefits be filed "within sixty days after the mailing to [the claimant] of notice of such decision or within such further time as the Commissioner may allow." 42 U.S.C. § 405(g). Pursuant to this authority, the Commissioner has promulgated a regulation allowing the plaintiff 60 days from receipt of the notice and further establishing a rebuttable presumption that receipt occurs "5 days after the date of such notice, unless there is a reasonable showing to the contrary." 20 C.F.R. § 422.210(c); see also id. §§ 404.901, 404.981, 416.1401, 416.1481.

It is uncontroverted that the Appeals Council denied review of the plaintiff's claim; that the notice of this denial, sent from the Office of Hearings and Appeals ("OHA") in Falls Church, Virginia, is dated October 24, 2001; that receipt is therefore presumed to have occurred on October 29, 2001; and that the 60th day following was December 28, 2001. It is further uncontroverted that December 28, 2001 was a Friday; that the courthouse was closed by order of Chief Judge Butler on Monday, December 31, 2001; that Tuesday, January 1, 2002 was a legal holiday and that the complaint was filed on Wednesday, January 2, 2002.

The dispositive issue is thus the date of receipt of the Appeals Council's notice. If the presumed receipt date of October 29, 2001 is utilized, the complaint is untimely. If any date after October 29 is used, the complaint is timely.²

A plaintiff may rebut the presumption of receipt five days after the date of the notice by "a reasonable showing to the contrary." 20 C.F.R. § 422.910(c). The plaintiff has submitted her affidavit stating that she received the notice on October 31, 2001 and that she "remember[s] the date [she] received it because it was Halloween." (Doc. 13, Exhibit A). Courts have repeatedly concluded that a bald denial of timely receipt by the plaintiff and/or her attorney, even if made under oath, is insufficient to constitute a "reasonable showing" sufficient to rebut the regulatory presumption.³ The result is the same when the plaintiff's affidavit offers an explanation for late or failed receipt that is either facially insufficient or unsupported by extrinsic evidence.⁴ In every known case in which a reasonable showing of delayed or failed receipt has been judicially acknowledged, the plaintiff offered evidence corroborating his or her denial of timely receipt.⁵

Of the numerous cases reviewed, the weakest demonstration deemed to constitute a reasonable showing was provided in Gower v. Shalala, 1993 WL 737965 at *23 (W.D.W.Va.1993)(the plaintiff's affidavit denying timely receipt, accompanied by a calendar on which the plaintiff "purport[ed] to have contemporaneously recorded the receipt of the notice"). Whether or not such a showing — completely dependent on the plaintiff's reliability — is appreciably more probative than a raw ipse dixit, the plaintiff's affidavit in this case does not reach even the low threshold accepted in Gower. The plaintiff in Gower at least produced a document purporting to corroborate the date of receipt, but the plaintiff's affidavit here offers only to explain how she is able to remember (some eleven months after the fact) the precise date of receipt. Standing alone, the plaintiff's affidavit cannot constitute a reasonable showing of delayed receipt.

The plaintiff, however, has also submitted a copy of the notice of denial mailed by the defendant to plaintiff's counsel. This document bears a date-received stamp of October 30, 2001 and the handwritten notation, "calendared due 1-2-02." (Doc. 10, Exhibit A). Plaintiff's counsel represents in brief that her mail clerk was the only individual to receive and process office mail and that she was carefully trained by counsel in the use of the stamp. (Doc. 10 at 1 n. 1).

The defendant argues that this does not constitute a reasonable showing of delayed receipt because counsel's information is "uncorroborated." (Doc. 11 at 3). The assertion is difficult to fathom. Counsel has not simply offered her ipse dixit that the notice was received on October 30 but has submitted the corroborating evidence of a date-stamped copy of the notice. This is precisely the sort of corroboration that other courts have considered to be sufficient,⁶ and it is further corroborated by the notation reflecting that a complaint is "due" on January 2, 2002 — the correct date given an October 30, 2001 receipt date.

Although ignored by the defendant, two courts have considered date-stamped copies of the notice insufficient corroboration to establish a reasonable showing of delayed receipt. See Roberts v. Shalala, 848 F.Supp. 1008 (N.D.Ga.1994); Skelton v. Bowen, 1988 WL 34287 (D.N.J.1988).⁷ In Roberts, the plaintiff offered the affidavit of counsel's office receptionist, who stated that her responsibilities included opening and stamping each piece of mail with the date received and who identified and attached a date-stamped copy of the notice received by counsel. 848 F.Supp. at 1010, 1015. The Roberts Court, citing only cases involving mere ipse dixits, dismissed this evidence as "an uncorroborated affidavit from a law office employee." Id. at 1016-17. In Skelton, counsel "produce[d] a copy of the notice upon which the date of October 13, 1987 is stamped as the date of receipt," but the Court refused to accept this as "offer[ing] any verification" of the receipt date and treated it instead as a "[m]ere assert[ion]." 1988 WL 34287 at *1.

The dearth of explicit analysis makes it difficult to discern the basis of the courts' conclusion. It cannot be because date-stamped copies are inherently untrustworthy, since they are generally accepted as evidence of the actual date of receipt, even when created by one interested in proving the stamped date to be correct.⁸ It cannot be because a date-stamp is less than irrefutable evidence of delayed receipt, since the plaintiff's burden is not to make an impregnable showing but only a reasonable one. Certainly the probative value of a date-stamped copy could be reduced or eliminated by evidence raising a reasonable inference of accidental or deliberate misapplication of the stamp, but the mere theoretical possibility of error is insufficient to justify a blanket rejection of such evidence.

Evidence that might support an inference of error includes a long delay in receipt, since a short delay is generally more plausible than a long one. While the plaintiff in Roberts asserted that the notice arrived nine days late, the plaintiff here asserts that it was only one day late.⁹ Similarly, the failure to show an office practice of date-stamping materials on the day received might suggest an increased chance of delayed stamping. While the plaintiff in Skelton apparently made no such showing, counsel here attested to the mail clerk's training.¹⁰

The defendant does not suggest that counsel or anyone else either deliberately or accidentally stamped the wrong date of receipt on the notice. Nor are the circumstances present in Roberts and Skelton present here. Thus, whether or not these cases were correctly decided on their facts, on the facts of this case the date-stamped copy constitutes adequate corroborating evidence of delayed receipt.

The defendant next argues that, even if counsel's representations in brief are corroborated by the date-stamped copy, the "reasonable showing" standard requires proof by affidavit. (Doc. 11 at 3; Doc. 14 at 4). The defendant's regulation, however, requires a "reasonable showing," not a "reasonable showing by affidavit." While affidavits are always helpful and sometimes essential in making a reasonable showing of delayed or failed receipt, affidavits from counsel and/or her mail clerk were not necessary to support a reasonable showing in this case. Counsel's representations as to the mail clerk's responsibility and training are made on personal knowledge and are subject to Rule 11, providing adequate assurance of their accuracy. An affidavit from the mail clerk might have confirmed her customary practice, but she left counsel's employment during the four-month period the defendant inexplicably delayed before filing a motion to dismiss. (Doc. 10 at 1 n. 1). The defendant should not profit by her own tardiness, especially given her failure to question the veracity of counsel's representations or the authenticity of the date-stamped copy of the notice.¹¹

The defendant next suggests that a plaintiff cannot satisfy the "reasonable showing" standard by asserting and corroborating delayed receipt but must also offer evidence explaining the reason receipt was delayed. (Doc. 11 at 4; Doc. 14 at 4). No...