Piscopo v. SHHS

Opinion

USCA1 Opinion

June 27, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-2326 

                               MARIE ELIZABETH PISCOPO,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________

____________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Marie Elizabeth Piscopo on brief pro se.
            _______________________
            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,
            ________________                            _____________________
        Special  Assistant  United  States  Attorney,  and   Paul  Germanotta,
                                                             ________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

____________________

____________________

Per  Curiam.   Plaintiff  Marie  Elizabeth  Piscopo
                      ___________

            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.
                                          _

                      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
                             ___

            sought review of this decision by the Appeals Council.

____________________

            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

____________________

            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. . . .

                                         -3-

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

____________________

            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...)

                                         -4-

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
                 ___ __

            averred that  the court found  her original "pro  se summons"
                                                         ___  __

            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"

____________________

            3.  (...continued)
            August 5, 1989.  The "9" appears to have a mark drawn through
                      ____
            it.   Plaintiff maintains that  the date is  really August 5,
            1988  and  that she  "was  informed  said stamp  would  allow
            ____
            sufficient time to complete an acceptable  pro se summons and
                                                       ___ __
            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
                                                                      ___

            se complaint with the clerk on  August 5, 1988.  The district
            __

            court's  ruling  appears  to  have  implicitly rejected  this

____________________

            4.  We note  that the  original civil action  cover sheet  is
            time-stamped February 8, 1989.

                                         -6-

argument  in  allowing  the  Secretary's motion  to  dismiss.

            Judgment was  entered  on November  23,  1993.   This  appeal

            followed.

                                         II.
                                         __

                      On appeal, plaintiff argues that the district court

            erred by failing to consider her status as a pro se litigant.
                                                         ___ __

            Although her argument is  not clearly stated, plaintiff seems

            to be  saying that she attempted to file her pro se action on
                                                         ___ __

            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

____________________

            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
                                                                  ___  __
            filings liberally, we have considered both contentions.

                                         -7-

pro  se complaint  on August  5, 1988  and that  the district
            ___  __

            court clerk erred in rejecting it.  See Case v. Califano, 441
                                                ___ ____    ________

            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)
            ___ __

            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.

____________________

            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.

                                         -8-

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
                ________________

            limitation period  constitutes a  condition on the  waiver of

            sovereign  immunity that must be strictly  construed.  Id. at
                                                                   ___

            479; Leslie v.  Bowen, 695 F. Supp. 504,  506 (D. Kan. 1988).
                 ______     _____

            Thus, 42  U.S.C.   405(g) "generally  precludes late judicial

            challenge to  the denial of  benefits."  Willow  v. Sullivan,
                                                     ______     ________

            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,
                                                                     ___

            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.
                           ____     _____

            1988) (per curiam).  Cf.  Hatchell v.  Heckler, 708 F.2d 578,
                                 ___  ________     _______

            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,
                                                                     ___

-9-

e.g., McCall v.  Bowen, 832  F.2d 862, 864  (5th Cir.  1987);
            ____  ______     _____

            Matsibekker  v. Heckler,  738 F.2d  79,  81 (2nd  Cir. 1984);
            ___________     _______

            Leslie  v. Bowen, 695 F. Supp. at 505; Bartolomie v. Heckler,
            ______     _____                       __________    _______

            597  F. Supp. 1113, 1115 (N.D. N.Y. 1984); Worthy v. Heckler,
                                                       ______    _______

            611  F. Supp. 271, 273 (W.D. N.Y. 1985); Chiappa v. Califano,
                                                     _______    ________

            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
                                   ____

            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

____________________

            8.  Plaintiff  made  these   averments  in  the  supplemental
            affidavit  that  she filed  in  response  to the  Secretary's
            motion to dismiss.

                                         -10-

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,
                                                     ___ ______    _____

            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
            ______     _____

            uncorroborated  claim that  he did  not receive  May 9,  1988

            notice until May  23, 1988);  Rouse v. Harris,  482 F.  Supp.
                                          _____    ______

            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

____________________

            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
                           _____       ______
            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...)

                                         -11-

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
                                                                      ___

            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

____________________

            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
                                          _____    _________________
            U.S. at  479-82, where the  government's misconduct justified
            the application of the principle of equitable tolling.

                                         -12-

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
            _____     __________________                        ___  ____

            Thibodeaux v. Bowen,  819 F.2d  76, 79 (5th  Cir. 1987)  (per
            __________    _____

            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.
                      _________________

-13-