                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Garcia v. Comm Social Security" (2002). 2002 Decisions. Paper 701.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/701


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                       NOT PRECEDENTIAL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
