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Steven M. Goldstein v. the Social Security Preliminary Injunction As Administration

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


June 6, 2011

STEVEN M. GOLDSTEIN,
PLAINTIFF,
v.
THE SOCIAL SECURITY PRELIMINARY INJUNCTION AS ADMINISTRATION;
THE SOCIAL PREMATURE SECURITY ADMINISTRATION,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER DENYING PLAINTIFF'S MICHAEL J. ASTRUE, COMMISSIONER OF MOTIONS FOR DEFAULT AND FOR

decision denying him Social Security benefits. The Court issued the Procedural Order for Social Court's jurisdiction is limited to reviewing the administrative record to determine whether the 22 decision is supported by substantial evidence in the record . . . ." The Order also states that "Pursuant to Civil L.R. 16-5 . . . Defendant shall serve and file an answer, together with a certified 24 copy of the transcript of the administrative record, within ninety days of receipt of service of the 25 summons and complaint." On March 11, 2011, Plaintiff filed proof of personal service on Defendant Michael J. Astrue on March 4, 2011. See Dkt. No. 4. In the proof of service, the 27 process server states that he served Nancy Myers-Streeth, a Management Analyst at the Social

On February 22, 2011, Plaintiff, proceeding pro se, filed a complaint seeking review of a Security Review Actions filed in this judicial District. See Dkt. No. 2. This Order states that "the Security Administration Office of Public Inquiries, 6401 Security Blvd., Baltimore, MD 21235. In a handwritten statement attached to the proof of service, Ms. Streeth states that she is "hereby 2 authorized to accept service on his behalf." Plaintiff moved for a default judgment on May 10, 3

In relevant part, Federal Rule of Civil Procedure 4(i) states that when a plaintiff brings a complaint against a United States agency, or an officer or employee sued in an official capacity, the 6 plaintiff must serve the United States by "(A)(i) deliver[ing] a copy of the summons and of the 7 complaint to the United States attorney for the district where the action is brought - or to an 8 assistant United States attorney or clerical employee whom the United States attorney designates in 9 a writing filed with the court clerk - or (ii) sending[ing] a copy of each by registered or certified 10 mail to the civil process clerk at the United States attorney's office; [and] (B) send[ing] a copy of

2011, and moved for a preliminary injunction on May 31, 2011.

each by registered or certified mail to the Attorney General of the United States at Washington,

D.C." Fed. R. Civ. P. 4(i)(1). "To serve a United States agency or corporation, or a United States 13 officer or employee sued only in an official capacity, a party must serve the United States and also 14 send a copy of the summons and of the complaint by registered or certified mail to the agency, 15 corporation, officer, or employee." Fed. R. Civ. P. 4(i)(2).

of contract to provide survivorship insurance benefits." Pursuant to 42 U.S.C. § 405 (g), the Plaintiff has named the Commissioner as a party. Because he is suing a United States agency (the Social Security Administration) and an officer of that agency (the Commissioner), Plaintiff must 21 serve defendants pursuant to Rule 4(i), by delivering a copy of the summons and complaint to the U.S. Attorney for the Northern District of California, or to an Assistant U.S. Attorney or clerical 23 employee designated by the U.S. Attorney in a writing filed with the court clerk, or by sending a 24 copy of the summons and complaint by registered or certified mail to the civil process clerk at the U.S. Attorney's office; by sending a copy of the summons and complaint by registered or certified 26 mail to the Attorney General of the United States at Washington, D.C.; and by sending a copy of 27 the summons and complaint by registered or certified mail to the Social Security Administration.

Plaintiff's complaint states that he is "suing the Social Security Administration for breach Commissioner of the Social Security Administration is a proper defendant in such an action, and

Because Plaintiff's proof of service shows that Plaintiff has not properly served the Social Security Administration or Commissioner Astrue pursuant to the Federal Rules, Plaintiff has not 3 yet triggered their duty to respond to his complaint. Once Plaintiff completes service, defendants 4 will have 90 days from the date of service to respond to the complaint, as set forth in the Procedural Order for Social Security Review Action.

Accordingly, Plaintiff's Motions for Default Judgment and Preliminary Injunction are DENIED without prejudice because they are premature.

IT IS SO ORDERED.

20110606

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