Piscopo v. SHHS

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[NOT FOR PUBLICATION]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. . . .

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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

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

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."

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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.

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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.

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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.

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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

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,

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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);

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.

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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,

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...)

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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

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.

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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

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.

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