
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          June 27, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
