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crediting the date reflected by a date-stamped copy
Summary of this case from Pettway ex Rel. Pettway v. BarnhartOpinion
Civil Action Number 02-10114-RGS.
May 22, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
On November 8, 2001, the Social Security Administration's Appeals Council denied plaintiff Virginia Lee's appeal of a decision of an Administrative Law Judge denying her application for Social Security disability benefits. Notice of the decision was sent by mail to plaintiff's last known home address, as well as to her attorney of record. The notice advised plaintiff of her right to seek judicial review of the decision by filing suit in the district court within sixty days of receipt of the notice. Plaintiff filed suit on January 18, 2002.
The sixty (60) day limitations period is mandated by statute, 42 U.S.C. § 405(g). The statute provides that the period begins to run "after the mailing to [plaintiff] of notice of such decision." The regulations implementing the statute interpret "mailing" to mean the date on which the notice of decision is received by the plaintiff, that date is presumed to be the fifth day after the notice is mailed. 20 C.F.R. § 404.901. The presumption, however, is rebuttable. 20 C.F.R. § 422.210(c)
The statute authorizes the Commissioner to extend the time for filing suit for good cause. Plaintiff does not claim that she asked for such an extension. Courts may also in exceptional circumstances equitably toll the running of the limitations period. Bowen v. City of New York, 476 U.S. 467, 480 (1986). Plaintiff is not requesting equitable relief.
Receipt of notice by a plaintiff's attorney is the equivalent of receipt by the plaintiff herself. 20 C.F.R. § 404.1715.
Plaintiffs have generally had rough sledding in attempting to overcome the five-day presumption, particularly when all that is offered is an uncorroborated claim of non-receipt. See, e.g., McCall v. Bowen, 832 F.2d 862, 864-865 (5th Cir. 1987); Leslie v. Bowen, 695 F. Supp. 504, 506 (D.Kan. 1988). For her part, plaintiff offers the following: (1) her sworn affidavit that because of a change of residence and the expiration of a postal forwarding order, she did not receive the notice; (2) the sworn affidavit of her attorney, Elizabeth Jones, stating that the notice was delivered to her by her secretary on November 19, 2001, with an intake date stamp of that day; and (3) the sworn affidavit of the secretary attesting that office protocol required all incoming mail to be stamped with the date of receipt, that she had received the notice with the date stamp on November 19, 2001, and that she had personally delivered the notice that day to attorney Jones.
While the case could be decided unobjectionably either way, I conclude that the corroboration of plaintiff's contention that the notice was received on November 19, 2001 (and not six days earlier) is sufficient, if barely so, to overcome the presumption. See Matsibekker v. Heckler, 738 F.2d 79, 81-82 (2d Cir. 1984). I base this conclusion on attorney Jones' sworn statement as an officer of the court, as well as on judicial notice of the fact that the contamination of several key postal sorting facilities with anthrax seriously impeded the expeditious delivery of mail originating in the Washington, D.C. area during the fall of 2001. I am nonetheless baffled why an attorney presumably experienced in these matters, upon observing the November 8, 2001 date of the notice, and being familiar with the five day rule, would have waited until the midnight hour to file suit when this entire dispute could have been avoided by the simple expedient of filing six days earlier.
ORDER
For the foregoing reasons, the Commissioner's Motion to Dismiss is DENIED. The Clerk will forthwith issue the standard briefing order in Social Security cases.
SO ORDERED.