Roberts v. Shalala

• Decision Date: 07 April 1994
• Docket Number: Civ. A. No. 93-298-2-MAC(CWH).
• Citation: 848 F. Supp. 1008
• Parties: Martha L. ROBERTS, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Middle District of Georgia

848 F. Supp. 1008

Martha L. ROBERTS, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.

Civ. A. No. 93-298-2-MAC(CWH).

United States District Court, M.D. Georgia, Macon Division.

April 7, 1994.

Stephanie Hooks Tinkey, Macon, GA, for plaintiff.

U.S. Atty. James L. Wiggins and Asst. U.S. Atty. Frank L. Butler, III, Macon, GA, for defendant.

ORDER

HICKS, United States Magistrate Judge.

The above-captioned matter is before the court on the motion of the SECRETARY OF HEALTH AND HUMAN SERVICES seeking a dismissal of plaintiff's social security appeal on grounds that it was submitted for filing outside the sixty day period following notification of her decision adverse to plaintiff.¹ Because of the taking of evidence and of the use of affidavits herein by both plaintiff and defendant, the court has determined that it is necessary to treat the Secretary's motion as one for summary judgment rather than as a motion to dismiss. Pursuant to Eleventh Circuit case law, the court has notified plaintiff, the party against whom judgment is sought, of her rights and obligations under Rule 56 of the Federal Rules of Civil Procedure. Counsel for plaintiff has acknowledged these rights and obligations and has indicated to the court that no further pleadings will be submitted on behalf of her client.

SUMMARY JUDGMENT STANDARD

As previously pointed out to the parties, summary judgment can only be granted if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). While the evidence and all factual inferences therefrom must be viewed by the court in the light most favorable to the party opposing the motion, the party opposing the granting of the motion for summary judgment cannot rest on his pleadings to present an issue of fact but must make a response to the motion by filing affidavits, depositions, or otherwise in order to persuade the court that there are material facts which exist in the case which must be presented to a jury for resolution. See Van T. Junkins & Assoc. v. U.S. Industries, Inc., 736 F.2d 656, 658 (11th Cir.1984). Counsel for both parties have briefed the issues herein, and the court has conducted an evidentiary hearing. This order is entered based upon a review of their argument as well as the facts established by the evidence.

PROCEDURAL BACKGROUND

Plaintiff ROBERTS appeals the June 24, 1993 adverse decision of the APPEALS COUNCIL denying her request for review of the determination of the ADMINISTRATIVE LAW JUDGE that she is not entitled to supplemental security income benefits. She filed her appeal with this court on September 3, 1993 by filing a request to proceed in forma pauperis.² On October 18, 1993, the Secretary filed a motion to dismiss plaintiff's appeal³, contending that "it was not commenced within sixty (60) days after the date of the mailing of the notice of the final decision of the Secretary of Health and Human Services, nor within any time as extended by the Appeals Council of the Social Security Administration. ..."

CONTENTIONS OF THE PARTIES

Defendant contends that plaintiff's submission of her social security appeal is untimely because plaintiff failed to file within the sixty day period allowed by law. 42 U.S.C. § 405(g). Defendant alleges that more than sixty days passed from the time the claimant received notice of the adverse decision from the Appeals Council; plaintiff denies this. Defendant, however, would have the court apply the sixty day period from the date plaintiff ROBERTS herself received the notice; plaintiff believes it appropriate to date her filing from the date of receipt of the notice by her attorney.⁴ Also to be considered is application of the presumption of receipt five days after the date of such notice under 20 C.F.R. § 422.210(c).

Of critical importance in this proceeding is the factual dispute over the date of receipt of the Appeals Council's notice, whether by the claimant or by claimant's attorney. Defendant has filed an affidavit indicating that the Appeals Council notice was mailed to plaintiff ROBERTS on June 24, 1993 to the address previously provided by her. See Affidavit of Carol A. Stone attached to Brief in Support of the Secretary's Motion to Dismiss (Tab # 9). Ms. ROBERTS testified at the hearing before the undersigned that she was no longer living at that address when the notice was sent.

Plaintiff's counsel has also submitted the affidavit of Lori Ann Castonguay, the office receptionist charged with the responsibility of receiving and processing mail addressed to the law office. See Tab # 10, Exhibit C. This affidavit states that the Appeals Council notice was received in counsel's office on July 8, 1993. The undersigned on December 10, 1993, heard argument on the issues herein and took evidence in the form of testimony of plaintiff ROBERTS who attempted to explain how and when she personally received the notice from the Appeals Council. Subsequent to the hearing, counsel for plaintiff submitted a supplemental pleading to which she attached as Exhibit "A" an affidavit of plaintiff ROBERTS seeking to expand upon her testimony at the hearing; defendant has not objected to the court's considering said affidavit. However, in the court's view, plaintiff has failed in both her testimony and in her supplemental affidavit to establish with any degree of certainty either the date of receipt by her or by her attorney.

LEGAL STANDARDS TO BE APPLIED

It is well settled that "the United States, as sovereign, `is immune from suit save as it consents to be sued, * * * and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) and United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941).

Congress may prescribe the procedures and conditions under which, and the courts in which, judicial review of administrative order may obtain. Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 1219, 2 L.Ed.2d 1345 (1958). Judicial review of final decisions on claims arising under Title II or Title XVI of the Social Security Act is provided for and limited by sections 205(g) and (h) of said Act, 42 U.S.C. 405(g) and (h). The remedy provided by section 205(g) is obviously exclusive.

The relevant provisions of section 205 read as follows:

(g) 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 decisions or within such further time as the Secretary may allow. * * *

(h) The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter (Emphasis supplied).⁵

The above-quoted provisions of the Social Security Act clearly indicate that the only civil action permitted on any claim arising under Title II or Title XVI of the Act is an action to review the "final decision of the Secretary made after a hearing * * *," and that such action must be "commenced within sixty days after the mailing to him the party bringing the action of notice of such decision or within such further time as the Secretary may allow." The Secretary, by regulations published December 9, 1976 in the Federal Register, 41 F.R. 53792, 20 C.F.R. section 422.210(c), has interpreted "mailing" as the date of receipt by the individual of the Appeals Council's notice of denial of request for review of the presiding officer's decision or of the Appeals Council's decision. See also 20 C.F.R. 404.981. The date of receipt is presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary. 20 C.F.R. section 422.210(c). Such interpretation unquestionably gives a claimant additional time in which to submit an appeal to the courts than contemplated by the Act.

In Stone v. Heckler, 778 F.2d 645 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit upheld the sixty day time limitation. Other circuit courts have held likewise. See e.g. Thibodeaux ex rel. Thibodeaux v. Bowen, 819 F.2d 76 (5th Cir. 1987); Dietsch v. Schweiker, 700 F.2d 865 (2d Cir.1983); Hunt v. Schweiker, 685 F.2d 121 (4th Cir.1982); Biron v. Harris, 668 F.2d 259 (6th Cir.1982); Peterson v. Califano, 631 F.2d 628 (9th Cir.1980); Teague v. Califano, 560 F.2d 615 (4th Cir.1977); Neighbors v. Secretary of Health, Education and Welfare, 511 F.2d 80 (10th Cir.1974); Whipp v. Weinberger, 505 F.2d 800 (6th Cir.1974); Small v. Gardner, 390 F.2d 186 (1st Cir.1968), cert. denied, 393 U.S. 984, 89 S.Ct. 456, 21 L.Ed.2d 444 (1968).

A number of lower federal decisions have strictly applied the sixty day time limitation. In O'Neill v. Heckler, 579 F.Supp. 979 (E.D.Pa.1984), the court held that where the complaint was filed one day late, the court was without jurisdiction to review the decision of the Secretary. See also Sanchez v. Bowen, 85-9385 slip op., 1986 WL 9234 (S.D.N.Y. Aug. 11, 1986); Worthy v. Heckler, 611 F.Supp. 271 (D.C.N.Y.1985); Chiaradonna v. Schweiker, 569 F.Supp. 1471 (E.D.Pa. 1983); Parker v. Secretary of Health and Human Services, 543 F.Supp. 1041 (E.D.N.Y.1982); Palucis v. Schweiker, 523 F.Supp....