Fields v. Commissioner of Social Security

MOTION to dismiss for failure to state a claim

M.D. Fla.December 5, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION EDWARD DEAN FIELDS, ) ) Plaintiff, ) ) v. ) Case No. 3:16-cv-1106-J-39JBT ) ) CAROLYN W. COLVIN, ) Acting Commissioner of ) Social Security, ) ) Defendant. ) DEFENDANT’S OPPOSED MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Defendant, Carolyn W. Colvin, the Acting Commissioner of Social Security (the Commissioner) moves this Court to dismiss Plaintiff’s complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Pursuant to Fed. R. Civ. P. 12(d), this motion may also be treated as one for summary judgment and disposed of as provided in Fed. R. Civ. P. 56. Statement of the Case Plaintiff brought this action pursuant to section 205(g) of the Social Security Act (Act), 42 U.S.C. § 405(g), to obtain judicial review of the Commissioner’s final decision denying his applications for a period of disability, disability insurance benefits, and Supplemental Security Income (SSI). Because Plaintiff failed to file his complaint timely, he is foreclosed from bringing this action, and the Court should grant the Commissioner’s motion to dismiss. Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 1 of 7 PageID 41 2 Underlying Procedural History On January 16, 2015, an Administrative Law Judge (ALJ) issued a decision denying Plaintiff’s claim for benefits under Title II and Title XVI of the Act and mailed a copy thereof to Plaintiff (Declaration of Roxie Rasey Nicoll1 [Decl.], at ¶ 3(a), Ex. 1 at 1, 10). Plaintiff requested review of this decision (Decl. at ¶ 3(a), Ex. 2). On June 6, 2016, the Appeals Council sent, by mail addressed to Plaintiff, notice of its denial of Plaintiff’s request for review and of the right to commence a civil action within 60 days of the date the notice was received (Decl. at ¶ 3(a); Ex. 2 at 2-3). The notice sets out: If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request. (Decl., Ex. 2 at 3). Argument It is well settled that “the United States, as sovereign, ‘is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” Hercules, Inc. v. United States, 516 U.S. 417, 422-23 (1996) (quoting United States v. Testan, 424 U.S. 392, 399 (1976) and United States v. Sherwood, 312 U.S. 584, 586 (1941)). Congress may prescribe the procedures and conditions under which judicial review of administrative orders may proceed. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958). The exclusive jurisdictional basis for judicial review of final decisions on claims arising under Title II of the Act is provided for and limited by section 1 See attached Declaration of Roxie Rasey Nicoll, Chief of Court Case Preparation and Review, Branch 3, Office of Disability Adjudication and Review, Social Security Administration. Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 2 of 7 PageID 42 3 205(g) and (h), 42 U.S.C. § 405(g) and (h). Where a right, such as the right to sue, is a creature of statute, and the statute provides a special remedy, that remedy is exclusive. United States v. Babcock, 250 U.S. 328, 331 (1919). The remedy provided by section 205(g) is exclusive. Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007). A. This Court should dismiss Plaintiff’s complaint because he filed it more than 60 days after receipt of the Commissioner’s final decision. Plaintiff’s complaint fails to state a claim upon which relief can be granted because it was not filed within 60 days after his presumptive receipt of notice of the Commissioner’s final decision, and the Appeals Council did not grant Plaintiff an extension of time to file a civil action. The Act 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 Commissioner, by regulations published December 9, 1976, in the Federal Register, 41 F.R. 53792, 20 C.F.R. § 422.210(c),2 has interpreted “mailing” as the date the individual receives the Appeals Council’s notice of denial of request for review of the presiding officer’s decision or of the Appeals Council’s decision. 20 C.F.R. § 404.981. The Commissioner presumes the date of receipt is 5 days after the date of such notice, unless there is a reasonable showing to the contrary made to the Appeals Council. See 20 C.F.R. §§ 404.901, 422.210(c). The Commissioner has interpreted this provision to mean that a complaint is timely filed if filed within 65 days of the date on the Appeals Council notice. See 20 C.F.R. §§ 404.901, 404.981, 422.210(c). 2 All regulatory citations refer to the 2016 Code of Federal Regulations unless otherwise indicated. Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 3 of 7 PageID 43 4 Plaintiff had 60 days from his receipt of the Appeals Council’s notice to request judicial review. 42 U.S.C. § 405 (g). The notice was dated June 6, 2016, and allowing a presumed 5 days for receipt of the mailed notice, Plaintiff’s deadline was August 10, 2016 (Decl., Ex. 2 at 1). See 20 C.F.R. §§ 404.901, 404.981, 422.210(c). Plaintiff brought the instant action on August 30, 2016 (Decl. at ¶ 3(c)). Therefore, Plaintiff’s complaint was untimely. See Cochran v. Astrue, No. 8:09-cv–160-T-33TBM, 2011 WL 883529, at *1 (M.D. Fla. Mar. 14, 2011) (unpublished) (granting Commissioner’s motion to dismiss, or alternatively, for summary judgment, because the plaintiff filed an untimely complaint and failed to show extraordinary circumstances to support equitable tolling). The Commissioner respectfully requests that this Court, in accordance with the statutory provisions and case law, dismiss Plaintiff’s Complaint. B. No extraordinary circumstances exist to justify equitable tolling of the 60- day requirement. The Supreme Court has stated that “the congressional purpose, plainly evidenced in [§] 205(g), [was] to impose a 60-day limitation upon judicial review of the Secretary’s final decision[.]” Califano v. Sanders, 430 U.S. 99, 108 (1977). Moreover, conditions on the waiver of sovereign immunity must be strictly construed. Bowen v. City of New York, 476 U.S. 467, 479 (1986). In City of New York, the Supreme Court ruled that the 60-day period specified in section 205(g) of the Act is a period of limitation, which in a rare case can be tolled by the Commissioner or the courts. Id. at 480. The Court stated, however, that in most cases the Commissioner should make the determination whether to extend the 60-day period and that only “where the equities in favor of tolling the limitations period are “so great that deference to the agency's judgment is inappropriate” should the courts extend the period. Id. Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 4 of 7 PageID 44 5 The Eleventh Circuit has held that “traditional equitable tolling principles require a claimant to justify his untimely filing by a showing of extraordinary circumstances.” Jackson, 506 F.3d at 1353. The extraordinary circumstances standard may be met “where the defendant misleads the plaintiff, allowing the statutory period to lapse; or when the plaintiff has no reasonable way of discovering the wrong perpetrated against her.” Id. at 1354 (quoting Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005)). Ignorance of the law does not on its own, satisfy the “extraordinary circumstances” test. Id. at 1356. Similarly, a “garden variety claim” of negligence is not a basis for equitable tolling. See Holland v. Florida, 560 U.S. 631, 650-52 (2010) (listing as an example of excusable negligence an attorney’s “simple miscalculation” that results in a missed filing deadline). Plaintiff must establish “extraordinary circumstances, such as fraud, misinformation, or deliberate concealment.” Jackson, 506 F.3d at 1355. Plaintiff did not file for judicial review within 65 days as required by section 205(g) of the Act (42 U.S.C. § 405(g)), and the record evinces no extraordinary circumstances as would justify extending the filing period. The Appeals Council notice, dated June 6, 2016, provides actual notice of the filing requirement, instructing, “You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request” (Decl., Ex. 2 at 1, 3). Plaintiff does not appear to have requested additional time for filing his complaint (Decl. at ¶ 3(b)). Therefore, the court should grant the Commissioner’s motion. Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 5 of 7 PageID 45 6 CERTIFICATE PURSUANT TO LOCAL RULE 3.01(g) Pursuant to the requirements of Local Rule 3.01(g), the office of defense counsel has attempted to contact pro se Plaintiff but has been unable to do so. In an abundance of caution, this motion to dismiss has been filed as opposed CONCLUSION Because Plaintiff did not file for judicial review within 60 days, as required by 42 U.S.C. § 405(g), and has not demonstrated extraordinary circumstances to justify extending the filing period, the Court should grant the Commissioner’s motion and dismiss the complaint. Respectfully submitted, A. LEE BENTLEY, III United States Attorney By: s/John F. Rudy, III JOHN F. RUDY, III Assistant United States Attorney Florida Bar No. 0136700 400 N. Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6057 Facsimile: (813) 301-3103 Email: John.Rudy@usdoj.gov Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 6 of 7 PageID 46 7 Of Counsel for the Defendant: Mary Ann Sloan, Regional Chief Counsel, Atlanta Susan Kelm Story, Acting Deputy Regional Chief Counsel Brian Seinberg, Branch Chief Kristin M. Rogers, Assistant Regional Counsel Social Security Administration Office of the General Counsel, Region IV 61 Forsyth Street, S.W., Suite 20T45 Atlanta, Georgia 30303-8920 Kristin.Rogers@ssa.gov CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 5, 2016, I electronically filed the foregoing document with the Clerk of the Court by using the CM/ECF system, and sent a copy by United States Mail to: Edward Dean Fields, Pro Se 228 Heidt Road Palatka, Florida 32177 s/John F. Rudy, III JOHN F. RUDY, III Assistant United States Attorney Case 3:16-cv-01106-BJD-JBT Document 11 Filed 12/05/16 Page 7 of 7 PageID 47 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 1 of 22 PageID 48 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 2 of 22 PageID 49 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 3 of 22 PageID 50 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 4 of 22 PageID 51 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 5 of 22 PageID 52 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 6 of 22 PageID 53 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 7 of 22 PageID 54 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 8 of 22 PageID 55 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 9 of 22 PageID 56 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 10 of 22 PageID 57 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 11 of 22 PageID 58 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 12 of 22 PageID 59 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 13 of 22 PageID 60 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 14 of 22 PageID 61 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 15 of 22 PageID 62 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 16 of 22 PageID 63 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 17 of 22 PageID 64 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 18 of 22 PageID 65 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 19 of 22 PageID 66 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 20 of 22 PageID 67 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 21 of 22 PageID 68 Case 3:16-cv-01106-BJD-JBT Document 11-1 Filed 12/05/16 Page 22 of 22 PageID 69