United States District Court, D. Massachusetts
LAWRENCE J. LITTLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM & ORDER
Talwani United States District Judge
Lawrence Littler, proceeding pro se, filed a
Complaint [#1] seeking review of the Social Security
Administration's (“the Agency”) denial of his
claim for disability benefits under Title II of the Social
Security Act, 42 U.S.C. § 405(g). Defendant Nancy A.
Berryhill, Acting Commissioner of the Social Security
Administration, moved to dismiss. For the reasons set forth
below, the court rejects Defendant's motion to the extent
that dismissal is sought for lack of service. To the extent
that dismissal is sought on the ground that the complaint is
time-barred, the court treats Defendant's motion as a
motion for summary judgment under Rule 56, with an
opportunity for the parties to respond.
Lack of Service
asserts that the Complaint [#1] should be dismissed
because Plaintiff failed to complete service on the United
States. See Def.'s Mot. to Dismiss 1 [#14]. When
suing a federal agency, a plaintiff must serve the United
States and also send a copy of the summons and the complaint
by registered or certified mail to the agency. Fed.R.Civ.P.
4(i)(2). To serve the United States, a party must deliver a
copy of the summons and complaint to the United States
attorney for the district where the action is brought or his
designee, or to the civil-process clerk at the United States
attorney's office using registered or certified mail.
Fed.R.Civ.P. 4(i)(1)(A). The party must also send a copy of
the summons and complaint by registered or certified mail to
the Attorney General of the United States in Washington, D.C.
because Plaintiff was granted leave to proceed in forma
pauperis, the court allowed Plaintiff to have service
made by the United States Marshals Service
(“USMS”), and ordered that if directed by the
Plaintiff to do so, the USMS shall serve the summons and
complaint on the Defendant, with costs of service to be
advanced by the United States. Electronic Order [#7].
Plaintiff sought the assistance of the USMS by submitting
Form USM-285 and checking the appropriate box to request
service on the United States. Pl.'s Opp'n to Mot. to
Dismiss (“Pl.'s Opp'n”) 2 ¶ 4 [#19];
Form USM-285, at 2 [#13]. Plaintiff also verifies that he
sent a summons and complaint to the Attorney General using
certified mail, for which he provides receipts. Pl.'s
Opp'n 2 ¶ 4 [#19]; Certified Mail Receipts, attached
as Ex. 1 to Pl.'s Opp'n [#19-1]. In her reply,
Defendant notes that Plaintiff “provides evidence he
alleges establishes service, ” and that “[e]ven
accepting that Plaintiff timely provided service, Defendant
respectfully submits that Plaintiff's Complaint must be
dismissed as untimely.” Def.'s Reply 7 [#23].
Because Defendant's Reply [#23] does not further
address Plaintiff's evidence regarding service, the court
treats Defendant's argument regarding service as waived.
Statute of Limitations
seeking review of social security decisions must be timely
commenced. The statutory scheme sets that date as
“within sixty days after the mailing to [the claimant]
of such decision . . . .” 42 U.S.C. § 405(g). This
sixty-day limit “is not jurisdictional, but rather  a
statute of limitations.” Bowen v. City of New
York, 476 U.S. 467, 476 (1986). The Agency's
regulations specify that the statutory filing period begins
on the date that claimants receive notice from the Agency of
its decision, taking into account a rebuttable presumption
that the date of receipt occurs within “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
Notice of Denial from the Agency advised Plaintiff, however,
that he could request judicial review by filing a civil
action within sixty days from “the day after
you receive this letter.” Notice of Denial, attached as
Ex. 2 to Compl. [#1-2] (emphasis added). Accordingly, the
court will calculate the due date to be sixty days from the
date after receipt of the letter in accordance with the
Notice of Denial.
Plaintiff dated the Complaint [#1], its civil cover
sheet, and his Motion for Leave to Proceed In Forma
Pauperis [#2] November 1, 2017, the court's docket
reports a filing date of November 2, 2017. Review of
Plaintiff's documents shows that the clerk's office
did not stamp any filing date on the Complaint [#1],
but did stamp the Motion for Leave to Proceed In Forma
Pauperis [#2] “November 1.” Mot. for Leave
to Proceed In Forma Pauperis 1 [#2]. Based on the clerk's
office stamp, the court concludes that Plaintiff's
Complaint [#1] was presented to the clerk's
office for filing on November 1, 2017, notwithstanding the
the critical question is when Plaintiff received the Notice
of Denial. Defendant asserts that the Notice of Denial was
sent by mail addressed to Plaintiff on August 24, 2017.
Cousins Decl. 4 ¶ 3(b) [#14-2]. If this mailing date is
accepted and the five-day presumption is unrebutted,
Plaintiff's action should have been commenced no later
than October 30, 2017,  and is untimely.
asserts that he did not receive the Notice of Denial until
Friday, September 1, 2017. See Pl.'s Opp'n 2
¶ 3 [#19].
on McLaughlin v. Astrue, 443 Fed.Appx. 571, 574 (1st
Cir. 2011), Defendant contends that affidavits containing
only statements about a date of receipt are insufficient to
rebut the Agency's presumed date of notice. Def.'s
Reply 2 [#23]. But McLaughlin also instructs that
claimants may provide additional information and evidence to
support the actual date of receipt in a manner that can be
sufficient to rebut the presumption. See 443
Fed.Appx. at 574; see also Nee v. Berryhill, No.
1:17-cv-11459-DJC, 2019 WL 6699454, at * 3 (D. Mass. Dec. 9,
2019) (finding claimant rebutted presumptive date of notice
by providing multiple affidavits regarding ongoing issues
with mail delivery, and the actual date of receipt).
motion relies on material outside the pleadings, namely, the
declaration made by Agency officer Marie Cousins.
See Cousins Decl. 1 [#14-1]. Because, absent narrow
exceptions that do not apply here, “consideration of
documents not attached to the complaint, or not expressly
incorporated therein, is forbidden, ” the court must
convert this proceeding into one for summary judgment.
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993);
see Fed.R.Civ.P. 12(d). The court must also give
both sides “a reasonable opportunity to present all
material that is pertinent to the motion.” Fed.R.Civ.P.
12(d). Accordingly, the court converts Defendant's
Motion to Dismiss [#14] to a motion for summary
judgement on the specific issue of whether Plaintiff can
rebut the Agency's presumption that he received notice on
August 29, 2017, and directs the parties to respond within
four weeks from the date of this order with any affidavits or
other evidentiary material pertinent to the limited question
of when Plaintiff received the Notice of Denial. Defendant
need not refile the material submitted thus far.
reasons stated above, (1) The clerk shall correct the
date-filed date ...