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