Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-6-2002
Garcia v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1959
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1959
__________
FAUSTO GARCIA,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
_________
On Appeal from the United States District Court
for the District of New Jersey
(No. 01-cv-02888)
District Judge: The Honorable Faith S. Hochberg
__________
Submitted Under Third Circuit LAR 34.1(a)
October 29, 2002
__________
Before: NYGAARD, GARTH, and MICHEL, ? Circuit Judges
(Filed: November 6, 2002)
_____________
OPINION
_____________
?? The Honorable Paul R. Michel, United States Circuit Judge for the Federal Circuit,
sitting by designation.
MICHEL, Circuit Judge:
Fausto Garcia applied for a period of disability, disability insurance benefits, and
Supplemental Security Income payments, but his application was denied by a Social
Security Administrative Law Judge (“ALJ”) on June 2, 1998. Garcia then requested review
of the ALJ’s decision. In a decision dated September 14, 2000, the Social Security Appeals
Council denied Garcia’s request for review and rendered the ALJ’s decision the “final
decision” of the Commissioner of Social Security.
The Commissioner alleges that the Appeals Council’s decision was mailed to Garcia
and a copy to Garcia’s attorney on September 14, 2000, along with the notice of Garcia’s
right to commence a civil action within sixty days from the date of receipt of the notice.
Garcia and his attorney assert that they did not receive the notice until June 1, 2001.
Garcia also asserts that his attorney wrote to the Appeals Council on December 27, 2000
and May 2, 2001 inquiring about the status of the case.1 The Appeals Council responded to
the May 2, 2001 inquiry by forwarding a copy of the Appeals Council’s September 14,
2000 decision, which was received by Garcia on June 1, 2001. Garcia further asserts that
he filed a request for an extension of time to file a complaint in the district court on June
15, 2002. The Commissioner, however, alleges that the Appeals Council never received
such a request.
1
These letters were dated after the decision by the Appeals Council on September 14,
2000. Garcia asserts that his attorney also wrote status inquiry letters to the Appeals
Council on November 4, 1999, March 29, 2000, and July 26, 2000,
2
Garcia commenced a civil action in the district court on June 18, 2001. The
Commissioner filed a motion to dismiss Garcia’s complaint. The district court granted the
Commissioner’s motion on the ground that Garcia did not file his complaint in the district
court within sixty days after receiving notice of the Appeals Council’s decision, which is
required by § 405(g) of the Social Security Act. Garcia v. Comm’r of Soc. Sec., No. 01-
2888 (D. N.J. Feb. 21, 2002).
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We will
affirm.
I.
Judicial review of final decisions of the Social Security Appeals Council is limited.
Whether or not Garcia timely filed his complaint in the district court is a question of
subject matter jurisdiction. We review a district court’s decision on subject matter
jurisdiction de novo. In Re Phar-Mor, Inc., 172 F.3d 270, 273 (3rd Cir. 1999).
Section 405(g) of the Social Security Act provides that, after a final decision of the
Commissioner after a hearing, an individual “may obtain a review of such decision by a civil
action commenced within sixty days after mailing to him of notice of such decision or
within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. §
405(g). The Commissioner, pursuant to her power to allow “further time” for the
commencement of civil actions, promulgated 20 C.F.R. § 422.210(c):
Any civil action described . . . must be instituted within 60 days after the
Appeals Council’s notice of denial of request for review of the presiding
officer’s decision or notice of the decision by the Appeals Council is
3
received by the individual, institution, or agency, except that this time may
be extended by the Appeals Council upon a showing of good cause.
(emphasis added)
The Commissioner further defines that “the date of receipt of notice . . . shall be
presumed to be 5 days after the date of such notice, unless there is a reasonable showing to
the contrary.” 20 C.F.R. § 422.210(c).
The district court determined that Garcia did not make a sufficient showing to rebut
the presumption that notice was received within five days after the date of such notice of
the Appeals Council. Although Garcia and his attorney filed affidavits asserting that they
did not receive the notice until June 1, 2001 and provided status inquiry letters dated after
the Appeals Council’s final decision of September 14, 2000, the district court found the
affidavits and inquiry letters inadequate to rebut the presumption of timely receipt of the
notice. In reaching its conclusion, the district court relied on Rouse v. Harris, 482 F.
Supp. 766, 768 (D. N.J. 1980) (stating that mere assertions were insufficient to rebut the
presumption of timely receipt) and Pence v. Shalala, No. 94-CV-6154, 1996 WL 805070,
*3 (D. N.J. Feb. 15, 1996) (finding that status inquiry letters sent after the presumed date
of receipt were not adequate to rebut the presumption).
Garcia argues that Rouse and Pence are inapposite. In Rouse, the Commissioner
produced a signed certified mail receipt indicating that the Appeals Council’s decision was
timely received. Pence, on the other hand, is an unreported case that involves a late filing
of a request for hearing before an ALJ from a reconsideration determination. Garcia
further argues that we should follow the reasoning of Matsibekker v. Heckler, 738 F.2d 79
4
(2nd Cir. 1984), which held that the presumption of receipt within five days of the Appeals
Council’s notice was rebutted.
We agree with the district court that Garcia has not rebutted the presumption of
timely receipt. Other than Garcia and his attorney’s own affidavits of no actual notice until
June 1, 2001 and the status inquiry letters drafted by Garcia’s attorney, Garcia has offered
no other evidence. In contrast, the applicant in Matsibekker showed that the notice of
decision was not even mailed until seven days after the Appeals Council’s decision.
Matsibekker, 738 F.2d at 81.
The cases cited in Matsibekker do not help Garcia either. In Gibbs v. Harris, 501
F. Supp. 124 (D. Md. 1980), the court found that the applicant showed that he did not
receive the Appeals Council’s decision within five days of the notice because the Appeals
Council’s file indicated that the notice mailed to the applicant was never received and the
returned mail was resent a month later. Id. at 125. Nevertheless, the court ruled against the
applicant because the applicant did not commence the civil action until more than a year
after he received actual telephone notice of the Appeals Council’s decision.
In Chiappa v. Califano, 480 F. Supp. 856 (S.D. N.Y. 1979), the court found that the
applicant rebutted the presumption of timely receipt of notice because of the applicant’s
affidavit explaining the sale of his house and a temporary stay at a different location, a
notation on the notice itself of the forwarding address information, and an affidavit from a
railroad clerk who forwarded the notice.
5
In the present case, regardless of whether or not Rouse2 and Pence should be
followed, Garcia has not provided sufficient evidence to rebut the presumption that he
received the Appeals Council’s notice within five days after the date of the notice.
According to the affidavit of the Chief of Court Case Preparation and Review Branch 2,
Office of Hearings and Appeals, Social Security Administration, who has custody of
Garcia’s file, notice was sent to Garcia and his attorney on September 14, 2000. There is
no evidence of returned, delayed, or forwarded mail. Since Garcia bears the burden to rebut
the presumption of timely receipt, on the facts here we agree with the district court that
this burden is not met.
II.
For the foregoing reasons, we will affirm the decision of the district court.
By the Court,
/s/ Paul R. Michel
Circuit Judge
2
Rouse was also quoted in another circuit decision, McCall v. Bowen, 832 F.2d
862, 864 (5th Cir. 1987).
6