TN 3 (12-06)
SI 04050.010 Title XVI Litigation - General
The purpose of this subchapter is to give information that may be needed to answer appellants' questions regarding litigation of SSI claims.
This subchapter also gives instructions regarding actions to be taken if an employee is served with a complaint. Finally, this subchapter gives instructions for processing cases on request from the courts and on receipt of court reversals.
B. Policy - Regulatory Provisions
1. Federal Court Review
If an appellant is dissatisfied with the outcome of the administrative review process (reconsidered determination through Appeals Council (AC) review), he/she may request judicial review by filing a complaint in the United States (U.S.) District Court.
Any party to an AC review and decision may file a complaint in the U.S. District Court within 60 days after receiving notice of the AC's action.
3. Extension of Time to File
Any party to the AC's action or to an Expedited Appeals Process (EAP) agreement (see SI 04060.010) may request that the time for filing a complaint in the U.S. District Court be extended. The request must be in writing and it must give the reasons why the action was not filed timely. The request must be filed with the AC or, if it concerns the EAP (see SI 04060.020A.1.c.), with an SSA office. If good cause is shown, the time period for filing will be extended. To determine whether good cause exists, the AC will use the criteria set forth at SI 04020.020B.
C. Policy - Operating Considerations
1. Function of the Office of Acquiescence and Litigation Coordination
The Office of the General Counsel (OGC) serves as the focal point within the Social Security Administration (SSA) for matters involving litigation in SSA-administered programs including the Supplemental Security Income program.” A detailed description of OGC responsibilities is found in GN 03106.001.
2. When the Complaint Is Filed
When SSA is notified that a claimant has filed a court action on a benefit claim, ODAR will immediately obtain the claims folder (if not already in the Office of Hearing Operations (OHO) under the retention procedure, see GN 03104.350B.) to prepare a certified transcript of the hearing record for use in the litigation. Unlike title II cases, the claims folder in SSI cases is retained by the Office of Hearing Operations (OHO), Court Records Branch File Station.
Instructions for processing of terminal illness (TERI) cases are found in GN 00203.010D.6. and DI 11005.601.
3. Service of Summons
In court actions brought by a claimant for review of a social security decision, the Commissioner of Social Security is the only proper defendant, and service of the summons and complaint is required to be made upon the Commissioner. This is accomplished by delivery of such documents to the office within the Office of the General Counsel (OGC) that is responsible for the processing and handling of litigation in the particular jurisdiction in which the complaint is filed. For a listing of the names, addresses and jurisdictional responsibilities of these OGC offices, see GN 03106.020.
In addition, the Federal rules of Civil Procedure also require service of process on the U.S. Attorney General and the U.S. Attorney for the judicial district in which the action was filed. If the complaint is erroneously filed against the U.S. or any agency, office or employee of the U.S., instead of against the Commissioner, Office of the General Counsel (OGC) (through the U.S. Attorney) on behalf of SSA will request that the court substitute the Commissioner of Social Security as the correct defendant.
4. Summons to SSA Employee in His/Her Individual Capacity
a. Service of Summons
An SSA officer or employee may be served with a summons and complaint naming that individual as a defendant in his/her individual capacity, and complaining of conduct relating to his/her official duties. An individual properly becomes a defendant in such a civil action only if effectively served with a summons and complaint in a manner provided by the Federal Rules of Civil Procedure. The rules provide a method of completing service by first class mail when an agency official or employee is served in his or her individual rather than official capacity. In such cases, the summons and complaint will be accompanied by notice and acknowledgment forms (see SI 04050.010E.).
b. Response to Summons
If an employee or agency official receives a summons and complaint, he or she must return an acknowledgment to the sender within 20 days. Acknowledgment on the form does constitute proper service in a suit in which an employee or agency official is named as defendant. However, unless good cause is shown for failure to return an acknowledgment, the defendant will be liable for the costs of subsequent efforts to complete service. Consequently, an employee's response to attempted service by mail can have legal consequences.
5. Notice of Significant Litigation to Regional Coordinator
The OGC will advise the Regional Litigation Coordinator of any significant civil actions in that region; e.g., a class action, a constitutional challenge, a policy, regulatory or statutory challenge, or a case with potential significant adverse effects on SSA. The Regional Litigation Coordinator will notify FO’s, PSC’s, and the affected regional component of the commencement of significant civil actions instituted by claimants in their service areas.
6. Indigent Claimant - Proceedings “In Forma Pauperis”
If the claimant is indigent, the U.S. District Court may waive the payment of court fees for filing a complaint. As such action is solely within the jurisdiction of the court, a claimant must not be advised concerning proceeding in forma pauperis. When such a question is raised, the claimant should be informed of the location of the Office of the Clerk of the appropriate U.S. District Court with the suggestion that he/she consult the Clerk concerning this issue.
7. Interim Assistance Reimbursement (IAR) Cases - Death of the Claimant
In this situation, the appellant has been receiving interim assistance from the State after signing an agreement permitting SSA to reimburse the State out of his or her initial payment. It is SSA's policy that the State is never a party to the claim, because the State's interest depends solely on a favorable determination appellant has pursued his or her claim. If the claimant receives a determination of ineligibility, the State will not receive any reimbursement unless the claimant appeals and the determination is changed. If the individual receives a favorable determination, but the amount of the initial payment is not at least equal to the amount that the State has paid to the claimant, the State will receive only a partial reimbursement. If the claimant fails to file an administrative appeal after receiving an unfavorable determination, the State cannot file an appeal on the appellant's behalf and cannot require the appellant to file an appeal or a court action. In that case, the State will not receive any reimbursement.
If the claimant/appellant dies during the administrative appeal process, and the State asks to be substituted in place of the claimant to pursue the appeal, that request must be denied.
1. Service of Summons
If anyone attempts erroneously to serve summons upon you in any court proceeding against the Commissioner (or against SSA or the U.S.), do not accept service, and avoid any statement which might be construed as an acceptance of service.
Tell the process server that you are not authorized to accept service on behalf of the Commissioner (or SSA or the U.S.) and that such service will not be valid.
If he/she insists upon serving or leaving the papers, deliver them (not copies) immediately with a covering memorandum directly to the mailroom staff in the Office of the General Council, Room 611, 6401 Security Boulevard, Baltimore, MD 21235-6401 with a copy to the Regional Attorney.
Include in the covering memorandum the:
Name of the employee served;
Date the papers were received or served; and
Manner of receipt- whether received by mail (with any transmittal letter), or served personally, and, if so, by whom (i.e., the official capacity, if any, of the process server, such as Deputy U.S. Marshal, corresponding State officer, or plaintiff’s attorney).
2. Summons to SSA Employee
If the civil action is incorrectly brought against you, instead of against the Commissioner, telephone the office of the Regional Attorney before completing such an acknowledgment form.
If instructed to do so, accept service of the summons and immediately forward copies of the summons and complaint to both the Baltimore OGC and to the Regional Attorney with covering memorandums as explained in SI 04050.010D.1. Send a copy of the covering memorandum also to the RC.
Remember that failure to follow these procedures promptly could impede efforts to defend the case, and might result in fiscal liability of the agency or the individual named in the summons and complaint.
In all other situations where there is an attempt to serve court papers on an employee including a Request for Discovery, Request for Production of Documents or a Request for Admissions, contact the Regional Attorney or the LS, in Baltimore, MD on (410) 965-1508.
3. Receipt of Request for Information
If there is a request for production of information, generally under the Freedom of Information Act (FOIA), see GN 03305.010.
If the court action involves a Social Security claim, do not explain the nature or status of the claim unless you know certain facts which do not appear in the claims file.
Send copies of the transmittal memorandum, identifying the litigation (i.e., naming parties as shown in the caption on the summons or complaint, the court in which the action has been started, and the appellant/plaintiff's name and SSN) to the Regional Attorney and the RC for their information and action.
E. Exhibit - Notice and Acknowledgment for Service by Mail
United States District Court for the Southern District of New York Civil Action, File Number
Notice and Acknowledgment of Receipt of Summons and Complaint
C. D., Defendant
TO: (insert the name and address of the person to be served.)
The enclosed summons and complaint are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure.
You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within 20 days. You must sign and date the acknowledgment. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return the form to the sender within 20 days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. I declare, under penalty of perjury, that this Notice and Acknowledgment of Receipt of Summons and Complaint was mailed on (insert date).