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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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 ROBERT KENT SCHMITT, 7 8 9 10 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. 11 12 This matter is before the court on the Statement Regarding Service (ECF No. 13), filed 13 August 11, 2017, by Defendant Nancy A. Berryhill. Plaintiff Robert Kent Schmitt filed a Response 14 (ECF No. 14) on August 16, 2017. Also before the court is Mr. Schmitt’s Motion for Final 15 Decision (ECF No. 10). 16 This case involves judicial review of an administrative action by the Social Security 17 Administration (the “Agency”) denying Schmitt’s claim for benefits under the Social Security Act. 18 Mr. Schmitt commenced this action on May 11, 2017, by filing an Application to Proceed In 19 Forma Pauperis (ECF No. 1) and proposed complaint. The court denied the application without 20 prejudice and gave Schmitt until July 6, 2017, to file the long form in forma pauperis (“IFP”) 21 application, or pay the $400.00 filing fee. See Order (ECF No. 6). He opted to pay the filing fee. 22 See Receipt of Payment (ECF No. 7). Thus, the Complaint (ECF No. 9) is now filed on the docket. 23 On July 13, 2017, the court entered an Order (ECF No. 8) instructing counsel for the 24 Commissioner to file a statement with the court by August 11, 2017, indicating whether the 25 Commissioner acknowledges effective service. One week later, before the Commissioner had 26 responded to the court’s order or filed an answer, Plaintiff filed a Motion for Final Decision (ECF 27 No. 10). His motion asks the district court to make a final decision based on good cause shown, 28 without remanding the case to the Social Security Administration. 1 1 On August 11, 2017, the Commissioner filed a Statement (ECF No. 13) acknowledging 2 effective service. The Commissioner indicates she is prepared to file an answer. However, 3 because she has not yet filed an answer or administrative record, the Commissioner asks the court 4 to stay or hold in abeyance Plaintiff’s Motion for Final Decision (ECF No. 10) and issue a 5 scheduling order. 6 Plaintiff’s Response (ECF No. 14) asserts that the court should order the Commissioner to 7 pay him $179.48 in expenses for service of the complaint, which he sent by certified mail on May 8 13, 2017, to the Social Security Administration Office of the General Counsel, Region IX; the 9 United States Attorney for District Court of Nevada; and the Attorney General of the United States. 10 See Affidavit of Service (ECF No. 4). Plaintiff states he also included a request to waive service 11 of the summons. The Commissioner did not respond to his request to waive formal service, but 12 counsel filed a Notice of Appearance (ECF No. 3) on May 19, 2017. Because the court entered an 13 order requiring counsel for the Commissioner to file a statement acknowledging effective service, 14 Plaintiff argues that that the Commissioner’s failure to return the waiver warrants an award of fees. 15 Under Rule 4 of the Federal Rules of Civil Procedure, an “individual, corporation, or 16 association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary 17 expenses of serving the summons.” Fed. R. Civ. P. 4(d)(1) (emphasis added). Plaintiff may 18 request a waiver of formal service of a summons from such defendants. Id. If a defendant fails, 19 without good cause, to sign and return a waiver requested by a plaintiff the court must impose the 20 expenses of service on the defendant. See Fed. R. Civ. P. 4(d)(2). 21 The Social Security Administration and the Commissioner are not “individuals, 22 corporations, or association” that are subject to service under Rule 4(e), (f), or (h). See Fed. R. 23 Civ. P. 4(d)(1). Rather, the Social Security Administration and the Commissioner are subject to 24 service under Rule 4(i), which governs service to the “United States and Its Agencies, 25 Corporations, Officers, or Employees.” Fed. R. Civ. P. 4(i). Because the statute does not authorize 26 the imposition of service costs on the Social Security Administration or the Commissioner, 27 Plaintiff’s request is therefore denied. 28 2 1 Additionally, Plaintiff’s motion is premature. The court’s standard practice in cases 2 reviewing an Agency decision is to enter a scheduling order after the Commissioner files an 3 answer. 4 administrative record under seal within two weeks, and provides additional deadlines for the 5 parties to brief a motion for reversal and/or remand. The court decides an appeal of a decision 6 denying benefits based on the administrative record and briefs of the parties. In general, a plaintiff 7 has 30 days after receiving the administrative record to file a motion, the Commissioner then has 8 30 days to respond, and the plaintiff may file a reply brief within 20 days. The scheduling order 9 also outlines certain requirements for the motion. A scheduling order will be entered shortly after 10 the Commissioner files an answer. The court appreciates that it is difficult for pro se parties to 11 litigate their claims; thus, plaintiffs are advised to familiarize themselves with the Federal Rules 12 of Civil Procedure, the Local Rules of Practice, and relevant case law. Plaintiff’s motion is denied 13 without prejudice. The scheduling order requires the Commissioner to file a certified copy of the 14 Accordingly, 15 IT IS ORDERED: 16 1. Plaintiff Robert Kent Schmitt’s Motion for Final Decision (ECF No. 10) is DENIED 17 WITHOUT PREJUDICE. 18 2. The Commissioner shall file an answer by September 22, 2017. 19 3. The court will issue a scheduling order setting a briefing schedule shortly after the 20 Commissioner files an answer. 21 Dated this 22nd day of August, 2017. 22 23 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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