Brown v. Commissioner of Social Security

Filing 13

MEMORANDUM AND ORDER - The Commissioner's motion to dismiss (Filing No. 5 ) is denied without prejudice. Mr. Brown's objections (Filing Nos. 7 , 8 , 10 , and 12 ) are denied. Mr. Browns motion to enter (Filing No. 11) is denied as moot. Since the Commissioner has conceded that the Social Security Administration has been properly served (Filing No. 9 , at 1), no further proof of service of process will be required as to the agency only. Mr. Brown will provide to the Court proof of service of process upon the United States (the United States Attorney for the District of Nebraska and the Attorney General of the United States) by following the four-step procedure delineated above, on or before August 1, 2013. Thereafter, the clerk of the court is ordered to set the answer deadline for the Commissioner. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ALBERT BURGESS BROWN, JR.

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL
)
SECURITY,
)
)
Defendant.
)
______________________________)

8:13CV80

MEMORANDUM AND ORDER

This matter is before the Court on the motion to
dismiss by defendant Commissioner of Social Security
(“Commissioner”) pursuant to Federal Rules of Civil Procedure
12(b)(2) and 12(b)(5) (Filing No. 5, with brief, Filing No. 6).
Pro se plaintiff Albert Brown has filed objections to the
Commissioner’s motion to dismiss (Filing Nos. 7 and 8), to which
the Commissioner replied (Filing No. 9).

Mr. Brown filed

objections to the Commissioner’s reply brief (Filing Nos. 10 and
12) and a motion to enter additional evidence (Filing No. 11).
The Commissioner’s motion to dismiss is based on her
assertion that Mr. Brown has not yet effected service of process
on the United States.

The Federal Rules of Civil Procedure

require,
To serve a United States agency
. . . , a party must serve the
United States and also send a copy
of the summons and of the complaint
by registered or certified mail to
the agency . . . .

Fed. R. Civ. P. 4(i)(2) (emphasis added).

In order to “serve the

United States,” a party must:
(A)(i) deliver a copy of the
summons and of the complaint to the
United States attorney for the
district where the action is
brought -- or to an assistant
United States attorney or clerical
employee whom the United States
attorney designates in a writing
filed with the court clerk -- or
(ii) send a copy of each by
registered or certified mail to the
civil-process clerk at the United
States attorney's office; [and]
(B) send a copy of each by
registered or certified mail to the
Attorney General of the United
States at Washington, D.C.; . . .
Fed. R. Civ. P. 4(i)(1)(A), (B).

The Commissioner maintains that

even though Mr. Brown declares that he sent copies of the summons
and complaint by certified mail to the United States Attorney for
the District of Nebraska and the Attorney General of the United
States, his actions do not comply with Fed. R. Civ. P. 4(i)(1)(A)
and (B).

Rather, the Commissioner states that the United States

Attorney for the District of Nebraska and the Attorney General of
the United States must receive summonses issued to them, not
copies of the summons issued to the Commissioner.
The Commissioner alleges, “The fact that the docket
sheet reveals that no summonses have been issued for the United
States Attorney or the Attorney General of the United States
supports the defendant’s argument that the United States has not
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been properly served in this case,” citing Wormack v. Shinseki,
Civil Action No. 11-1437, 2012 WL 3877662 (W.D. Pa. Sept. 6,
2012) (Filing No. 9, at 2).

In Wormack, the district court judge

dismissed the case for insufficient service of process where the
only summons issued was to defendant Eric Shinseki, Secretary of
the Department of Veterans Affairs, but “there [was] no evidence
that the Summons was actually served on Defendant Shinseki.”
Wormack, 2012 WL 3877662, at *4.

In addition, the court found

that there was “no evidence that Plaintiff served all of the
necessary entities with copies of the Complaint and Summons in
accordance with Rules 4(i)(1)-(2).”

Id.

“Given the fact that no

additional summonses have been issued at this time, there is no
record evidence that Plaintiff has obtained and served summonses
on the individuals listed in the Notice of Mailing.”

Id.

“Even

if Plaintiff had served copies of the Complaint on these
individuals, he has not complied with his Rule 4(i) obligation to
obtain summonses and serve them, along with the Complaint, on
each of the individuals listed in the aforementioned subsections
of Rule 4(i)(1)(2).”

Id.

A different approach was taken in a pro se Social
Security disability appeal case from the Southern District of
Illinois, where the Court instructed in its order,
For the foregoing reasons,
Plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2)
is GRANTED as to this Court only.
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The Clerk of Court is DIRECTED to
provide Plaintiff with a blank form
of summons and three blank forms
USM-285. Plaintiff is ORDERED to
complete the form of summons and
return it to the Clerk of Court.
The Clerk of Court SHALL issue the
completed summons. Unless service
is waived pursuant to Federal Rule
of Civil Procedure 4(d), the United
States Marshal SHALL, in accordance
with Rule 4(i),
(1) personally
certified mail
the summons, a
complaint, and
Memorandum and

or by registered or
serve upon Defendant
copy of the
a copy of this
Order;

(2) personally or by registered or
certified mail addressed to the
process clerk, serve upon the
United States Attorney for the
Southern District of Illinois
copies of the summons, complaint,
and this Memorandum and Order; and
(3) by registered or certified
mail, serve upon the Attorney
General of the United States at
Washington, D.C., copies of the
summons, complaint, and this
Memorandum and Order.
Miller v. Astrue, Civ. No. 08-918-GPM, 2008 WL 5423619, at *1
(S.D. Ill. Dec. 30, 2008).

The district court clearly

differentiates between “the summons” that is to be served “upon
Defendant,” and a “cop[y] of the summons” that is to be served
upon the United States Attorney for the district and upon the
Attorney General of the United States.

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In this case, the court clerk did issue a summons for
the Commissioner (Filing No. 3), and the Commissioner concedes in
her reply brief that plaintiff has supplied adequate evidence to
establish service on the agency (“Defendant withdraws the portion
of its motion as it reflects service on the Social Security
Administration, based on Plaintiff’s exhibits now showing service
on the agency” (Filing No. 9, at 1)).

With regard to service

upon the other two “necessary entities,” this Court, like the
Court from the Southern District of Illinois, will read Federal
Rule of Civil Procedure 4(i)(1) literally, and will require that
plaintiff send “a copy of the summons,” meaning a copy of the
summons issued to the sole defendant, the Commissioner, to the
United States Attorney for the District of Nebraska and to the
Attorney General of the United States, as described in Rule
4(i)(1)(A) and (B).
The problem of proof remains, however.

Federal Rule of

Civil Procedure 4(l) plainly states that the plaintiff bears the
onus of proving service by way of affidavit:
Service.

(1) Affidavit Required.

“(l) Proving

Unless service is waived,

proof of service must be made to the court.

Except for service

by a United States marshal or deputy marshal, proof must be by
the server’s affidavit.”

Fed. R. Civ. P. 4(l)(1).

Here, plaintiff has submitted a statement “being duly
sworn under oath” including certified mail receipts and tracking

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notices that he claims establish that copies of the summons and
complaint were sent to the United States Attorney for the
District of Nebraska and the Attorney General of the United
States, as required (Filing No. 7).

Yet the Court has no way of

knowing to whom these items were sent, because there are no names
or complete addresses on plaintiff’s submitted documents.
The Court notes that in cases being brought against the
Commissioner by claimants who are represented by counsel, this
practical problem is neatly solved in the following manner:
1.

Plaintiff (or plaintiff’s counsel) requests
summons forms for the United States Attorney for
the District of Nebraska and for the Attorney
General of the United States from the Clerk of the
Court, in addition to the summons form for the
Commissioner. In this case, two additional copies
of the summons form sent to the Commissioner will
suffice;

2.

Plaintiff sends a summons form, along with a copy
of the complaint, to both the United States
Attorney for the District of Nebraska and to the
Attorney General of the United States, via
certified mail, but also including the United
States Postal Service’s green postcard that will
be returned to the plaintiff, signed by the
recipient, when the United States Attorney for the
District of Nebraska and the Attorney General of
the United States each receive the summons and
complaint;

3.

For each addressee, the plaintiff files with the
court a copy of the summons form, completing the
affidavit on the second page (available on the
court’s website), indicating proof of service and
declaring under penalty of perjury that the
addressee (the United States Attorney for the
District of Nebraska and the Attorney General of
the United States, respectively) was sent the
copies of the summons and complaint (checking the
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box “other” and specifying that they were sent by
certified mail and that the receipt is attached);
and
4.

Finally, for each addressee, the plaintiff
attaches a copy of the completed green postcard to
the affidavit.

The Court notes that the time dictated for service of
process by Federal Rule of Civil Procedure 4(m), 120 days, has
not yet expired, since Mr. Brown filed his complaint on March 6,
2013 (Filing No. 1).

Nevertheless, on its own motion, the Court

will extend the time for providing proof of service of process
until August 1, 2013.

The Commissioner’s motion to dismiss will

be denied without prejudice to reassertion.

Accordingly,

IT IS ORDERED:
1) The Commissioner’s motion to dismiss (Filing No. 5)
is denied without prejudice;
2) Mr. Brown’s objections (Filing Nos. 7, 8, 10, and
12) are denied;
3) Mr. Brown’s motion to enter (Filing No. 11) is
denied as moot;
4) Since the Commissioner has conceded that the Social
Security Administration has been properly served (Filing No. 9,
at 1), no further proof of service of process will be required as
to the agency only;
5) Mr. Brown will provide to the Court proof of service
of process upon the United States (the United States Attorney for

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the District of Nebraska and the Attorney General of the United
States) by following the four-step procedure delineated above, on
or before August 1, 2013.

Thereafter, the clerk of the court is

ordered to set the answer deadline for the Commissioner.
DATED this 21st day of June, 2013.
BY THE COURT:
/s/ Lyle E. Strom
______________________________
LYLE E. STROM, Senior Judge
United States District Court

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