Board v. Colvin

Filing 18

ORDER Denying 13 Defendant's Motion to Dismiss. Signed by Senior Judge Robert H. Whaley. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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8 KELLY LEE BOARD,
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Plaintiff,
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v.

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No. 1:14-CV-3165-RHW
ORDER DENYING
DEFENDANT’S MOTION TO
DISMISS

CAROLYN W. COLVIN,
13 Commissioner of Social Security,
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Defendant.
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BEFORE THE COURT is Defendant’s Motion to Dismiss. ECF No. 13.
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Attorney Joseph L. Koplin represents Plaintiff and Special Assistant United States
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Attorney Catherine Escobar represents Defendant. This motion was decided
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without oral argument.
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BACKGROUND
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On October 20, 2014, Plaintiff initiated this action by filing a complaint
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seeking judicial review of a final decision of the Commissioner of Social Security
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(“Commissioner”) finding him not disabled. ECF No. 1 1. Defendant now moves
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the Court for an order dismissing the above-captioned case because it believes
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Plaintiff originally filed his complaint in the United States District Court for the
Western District of Washington. The Judge entered an order to show cause as to
the propriety of venue and Plaintiff agreed that the proper venue was the Eastern
District of Washington. ECF No. 4. The matter was subsequently transferred to the
Eastern District of Washington. ECF No. 5.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ~ 1

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Plaintiff did not file his civil action seeking review within the statutorily mandated

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60-day time period. ECF No. 13 at 5. Defendant responded in opposition and

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asserted that the civil action for review was filed within the 60-day time frame.

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ECF No. 15 at 3.

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DISCUSSION
42 U.S.C. § 405(g) governs the procedure in which suits against the
Commissioner must be brought. It provides that:
Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the 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 only contested issue in the instant motion is when Plaintiff
received notice of the Appeals Council’s denial of his request for review. A
claimant is presumed to have received notice of the Appeals Council’s action five
days after the date on the notice, unless Plaintiff makes a reasonable showing to the
contrary. 20 C.F.R. § 422.210(c).
Defendant has put forth evidence that the Appeals Council’s notice was

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issued on August 13, 2014. ECF No. 14 (Weigel Decl. at ¶ 3). By operation of the

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regulations, Plaintiff is presumed to have received that notice five days later on

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August 18, 2014. 20 C.F.R. § 422.210(c). Thus, Defendant argues that Plaintiff’s

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60-day time period to file his civil action elapsed on October 17, 2014. Plaintiff did

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not file his complaint until October 20, 2014. ECF No. 1.

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Plaintiff argues that he did not receive the Appeals Council’s notice until
August 22, 2014. ECF No. 15. His declaration states that he moved in the time
between the initial hearing in front of the Administrative Law Judge in December
of 2012 and the date of the notice from the Appeals Council in August of 2014.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ~ 2

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ECF No. 16 (Board Decl. at ¶ 3). Due to his change of address, he states that he

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never personally received the mailed notice and instead learned of the Appeals

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Council’s decision via an email from his attorney on August 22, 2014. Id at ¶ 4.

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Counsel for Defendant also submitted a declaration describing his firm’s procedure

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to date-stamp all incoming mail and produced a copy of the Appeal Council’s

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notice with an August 22, 2014, date-stamp. ECF No. 17 (Koplin Decl. ¶¶ 2-3).

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“Courts typically find denial of timely receipt, standing alone, insufficient to
rebut the presumptive date of receipt, and require the submission of some
corroborating evidence.” Phillips v. Astrue, 2011 WL 6753089 * 3 (W.D. Wash.
Nov. 29, 2011). Here, it is undisputed that Plaintiff moved during the relevant time
period. ECF No. 16 (Board Decl. at ¶ 3). The declaration by Plaintiff’s attorney
regarding his firm’s date-stamp procedure and his subsequent email notifying
Plaintiff of the Appeals Council’s decision corroborates Plaintiff’s assertion that he
did not learn of the notice until August 22, 2014. ECF No. 17 (Koplin Decl. ¶¶ 2-

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3). The Court finds that Plaintiff’s declaration and his attorney’s corroboration of

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the declaration weighs in favor of rebutting the presumption that Plaintiff received

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notice on August 18, 2014.

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Furthermore, “[a] notice or request sent to your representative, will have the

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same force and effect as if it had been sent to you.” 20 C.F.R. § 404.1715.

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Defendant filed a declaration signed by Robert Weigel who has the responsibility

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for processing claims filed in the State of Washington under Title II of the Social

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Security Act. ECF No. 14. He stated that he sent a copy of the Appeals Council’s
notice to both Plaintiff and his attorney on August 13, 2014. Id. (Weigel Decl. at ¶
3). The Court has no reason to doubt that Mr. Weigel sent the notice to Plaintiff
and Plaintiff’s attorney on August 13, 2014, but it is undisputed that Plaintiff’s
attorney received the notice on August 22, 2014. ECF No. 17 (Koplin Decl. ¶¶ 2-

ORDER DENYING DEFENDANT’S MOTION TO DISMISS ~ 3

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3). Plaintiff’s attorney is located in Bellevue, Washington, and Plaintiff’s former

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address, the one where the notice was sent, was in Maple Valley, Washington. ECF

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No. 17 (Koplin Decl.); (Board Decl. at ¶ 2). Thus, Plaintiff’s former address and

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the address of his attorney are in the same general area2, but Plaintiff’s attorney did

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not receive notice until August 22, 2014—four days after he would have been

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presumed to by law. While there is no way to definitively know when the notice

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was delivered to Plaintiff’s old address, it is reasonable to assume that because it

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was sent to both Plaintiff and his attorney on the same day from the same location,

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it was likely delivered to both within a day, if not the same day (given the relative

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proximity of their addresses). The Court finds that this four-day gap between the

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presumed delivery date and the actual delivery date to Plaintiff’s counsel also

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weighs in favor of rebutting the presumption that Plaintiff received notice on
August 18, 2014.

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Accordingly, the Court finds that under the circumstances 3, Plaintiff has

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made a “reasonable showing” that he did not receive the Appeals Council’s notice

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within the presumed five-day period. The Court finds that the effective date of

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notice was August 22, 2014, and Plaintiff filed his complaint on October 20, 2014.

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ECF No. 1. Therefore, the complaint was filed within the 60-day time limit set by

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the statute and it is properly before this Court.

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Accordingly, IT IS HEREBY ORDERED:

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The distance between Maple Valley, Washington and Bellevue, Washington is
approximately 25 miles.
See Bradford v. Astrue, 2009 WL 3674417 * 3 (D. Or. Nov. 4, 2009) (holding
that a plaintiff rebutted the presumption that he had received notice five days after
decision date because of mail delivery delays around the holidays and his former
attorney submitting a copy of the notice date-stamped as received nearly three
weeks after the date on the Appeals Council’s decision).
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS ~ 4

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1. Defendant’s Motion to Dismiss, ECF No. 13, is DENIED.

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IT IS SO ORDERED. The District Court Executive is directed to file this

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Order and provide copies to counsel.
DATED this 4th day of May, 2015.

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s/Robert H. Whaley
ROBERT H. WHALEY
Senior United States District Judge

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ORDER DENYING DEFENDANT’S MOTION TO DISMISS ~ 5