Schmitt v. Berryhill

Filing 15

ORDER Denying without Prejudice Plaintiff's 10 Motion for Final Decision. The Commissioner shall file an answer by 9/22/2017. The court will issue a scheduling order setting a briefing schedule shortly after the Commissioner files an answer. Signed by Magistrate Judge Peggy A. Leen on 8/22/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT KENT SCHMITT,

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Case No. 2:17-cv-01349-RFB-PAL
Plaintiff,
ORDER

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

(Mot. for Decision – ECF No. 10)
Defendant.

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This matter is before the court on the Statement Regarding Service (ECF No. 13), filed

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August 11, 2017, by Defendant Nancy A. Berryhill. Plaintiff Robert Kent Schmitt filed a Response

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(ECF No. 14) on August 16, 2017. Also before the court is Mr. Schmitt’s Motion for Final

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Decision (ECF No. 10).

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This case involves judicial review of an administrative action by the Social Security

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Administration (the “Agency”) denying Schmitt’s claim for benefits under the Social Security Act.

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Mr. Schmitt commenced this action on May 11, 2017, by filing an Application to Proceed In

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Forma Pauperis (ECF No. 1) and proposed complaint. The court denied the application without

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prejudice and gave Schmitt until July 6, 2017, to file the long form in forma pauperis (“IFP”)

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application, or pay the $400.00 filing fee. See Order (ECF No. 6). He opted to pay the filing fee.

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See Receipt of Payment (ECF No. 7). Thus, the Complaint (ECF No. 9) is now filed on the docket.

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On July 13, 2017, the court entered an Order (ECF No. 8) instructing counsel for the

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Commissioner to file a statement with the court by August 11, 2017, indicating whether the

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Commissioner acknowledges effective service. One week later, before the Commissioner had

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responded to the court’s order or filed an answer, Plaintiff filed a Motion for Final Decision (ECF

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No. 10). His motion asks the district court to make a final decision based on good cause shown,

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without remanding the case to the Social Security Administration.
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On August 11, 2017, the Commissioner filed a Statement (ECF No. 13) acknowledging

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effective service. The Commissioner indicates she is prepared to file an answer. However,

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because she has not yet filed an answer or administrative record, the Commissioner asks the court

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to stay or hold in abeyance Plaintiff’s Motion for Final Decision (ECF No. 10) and issue a

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scheduling order.

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Plaintiff’s Response (ECF No. 14) asserts that the court should order the Commissioner to

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pay him $179.48 in expenses for service of the complaint, which he sent by certified mail on May

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13, 2017, to the Social Security Administration Office of the General Counsel, Region IX; the

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United States Attorney for District Court of Nevada; and the Attorney General of the United States.

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See Affidavit of Service (ECF No. 4). Plaintiff states he also included a request to waive service

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of the summons. The Commissioner did not respond to his request to waive formal service, but

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counsel filed a Notice of Appearance (ECF No. 3) on May 19, 2017. Because the court entered an

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order requiring counsel for the Commissioner to file a statement acknowledging effective service,

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Plaintiff argues that that the Commissioner’s failure to return the waiver warrants an award of fees.

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Under Rule 4 of the Federal Rules of Civil Procedure, an “individual, corporation, or

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association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary

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expenses of serving the summons.” Fed. R. Civ. P. 4(d)(1) (emphasis added). Plaintiff may

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request a waiver of formal service of a summons from such defendants. Id. If a defendant fails,

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without good cause, to sign and return a waiver requested by a plaintiff the court must impose the

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expenses of service on the defendant. See Fed. R. Civ. P. 4(d)(2).

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The Social Security Administration and the Commissioner are not “individuals,

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corporations, or association” that are subject to service under Rule 4(e), (f), or (h). See Fed. R.

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Civ. P. 4(d)(1). Rather, the Social Security Administration and the Commissioner are subject to

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service under Rule 4(i), which governs service to the “United States and Its Agencies,

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Corporations, Officers, or Employees.” Fed. R. Civ. P. 4(i). Because the statute does not authorize

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the imposition of service costs on the Social Security Administration or the Commissioner,

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Plaintiff’s request is therefore denied.

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Additionally, Plaintiff’s motion is premature. The court’s standard practice in cases

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reviewing an Agency decision is to enter a scheduling order after the Commissioner files an

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answer.

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administrative record under seal within two weeks, and provides additional deadlines for the

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parties to brief a motion for reversal and/or remand. The court decides an appeal of a decision

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denying benefits based on the administrative record and briefs of the parties. In general, a plaintiff

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has 30 days after receiving the administrative record to file a motion, the Commissioner then has

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30 days to respond, and the plaintiff may file a reply brief within 20 days. The scheduling order

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also outlines certain requirements for the motion. A scheduling order will be entered shortly after

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the Commissioner files an answer. The court appreciates that it is difficult for pro se parties to

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litigate their claims; thus, plaintiffs are advised to familiarize themselves with the Federal Rules

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of Civil Procedure, the Local Rules of Practice, and relevant case law. Plaintiff’s motion is denied

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without prejudice.

The scheduling order requires the Commissioner to file a certified copy of the

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff Robert Kent Schmitt’s Motion for Final Decision (ECF No. 10) is DENIED

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WITHOUT PREJUDICE.

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2. The Commissioner shall file an answer by September 22, 2017.

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3. The court will issue a scheduling order setting a briefing schedule shortly after the

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Commissioner files an answer.

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Dated this 22nd day of August, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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