United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's motion to
dismiss Plaintiff's complaint (ECF No. 12) and
Plaintiff's motion to file his complaint out of time (ECF
No. 14). The parties have consented to the jurisdiction of
the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). For the reasons set forth below,
Defendant's motion to dismiss (ECF No. 12) is granted and
Plaintiff's motion to file his complaint of time (ECF No.
14) is denied.
February 6, 2013, Plaintiff protectively filed applications
for Disability Insurance Benefits and Social Security Income
under Titles II and XVI of the Social Security Act alleging
that he was disabled as of March 15, 2012. (ECF No. 12). The
Social Security Administration (SSA) denied Plaintiff's
claims, and he filed a timely request for a hearing before an
administrative law judge. (Id.). Following a
hearing, the ALJ issued a decision on February 11, 2015
denying Plaintiff's applications for benefits.
filed a request for review of the ALJ's decision with the
SSA Appeals Council, which the Appeals Council denied. (ECF
No. 12). By notice dated March 24, 2016, the Appeals Council
informed Plaintiff of its action and advised that he had
sixty days from receipt of the notice to seek judicial review
by filing a complaint in the United States District Court.
(Id.). The notice stated: “The 60 days start
the day after you receive this letter. We assume you received
this letter 5 days after the date on it unless you show us
that you did not receive it within the 5-day period.”
(Id.). The notice further provided that, if
Plaintiff could not file a civil action within sixty days,
“you may ask the Appeals Council to extend your time to
file” and “provide good reason for waiting more
than 60 days[.]” Id.
filed his complaint on June 1, 2016. (ECF No. 1). In
response, Defendant filed a motion to dismiss the complaint
for failure to state a claim. (ECF No. 12). More
specifically, Defendant asserted that Plaintiff failed to
state a claim upon which relief can be granted because he did
not file the complaint within sixty days of his presumptive
receipt of the Appeals Council's March 24, 2016
notice. (ECF No. 12).
filed a response to Defendant's motion to dismiss, in
which he stated that the deadline for appealing the Appeals
Council's decision was May 28, 2016 and that he filed his
complaint four days after the deadline. (ECF No. 13).
Plaintiff further acknowledged that he did not request
additional time from the Appeals Council to file the
complaint, but alleged that his “late filing was a
result of excusable neglect.” (Id.).
also filed a motion to file his complaint out of time. (ECF
No. 14). Plaintiff urged the Court to extend the time to file
pursuant to Fed.R.Civ.P. 6(b)(1)(B) because Plaintiff's
untimely filing was the result of excusable neglect.
(Id.). Plaintiff explained that he contacted his
counsel's office on April 1, 2016 and advised
counsel's assistant that the Appeals Council had denied
his request for review. (Id.). Plaintiff alleged
that counsel's assistant mistakenly calculated the filing
deadline from the date of the phone call rather than the date
of the March 24, 2016 notice. (Id.). Plaintiff urges
the Court to “find that Plaintiff's untimely filing
of his Complaint was excusable neglect” and allow
Plaintiff to file his complaint out of time. (Id.).
Social Security Act establishes a mechanism for judicial
review of final administrative decisions.” Bess v.
Barnhart, 337 F.3d 988, 989 (8th Cir. 2003). Pursuant to
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 “more lenient”
regulations provide that a civil action must be commenced
within sixty days after notice of the Appeals Council
decision “is received by the individual.”
Bess, 337 F.3d at 989 (quoting 20 C.F.R. §
422.210(c)). They further state that the “date of
receipt of…notice of the decision by the Appeals
Council shall be presumed to be 5 days after the date of such
notice, unless there is a reasonable showing to the
contrary.” Id. See also 20 C.F.R.
§§ 404.981, 416.1481.
United States Supreme Court has held that “this timely
filing requirement is not jurisdictional but rather is a
statute of limitations and as such will bar suit unless it is
tolled.” Caran v. Bowen, 834 F.2d 720, 721
(8th Cir. 1988) (citing Bowen v. City of New York,
476 U.S. 467 (1986)). It is well established that, in the
absence of equitable tolling, failure to comply with the
sixty-day limitation warrants dismissal. See Bess,
337 F.3d at 988; Turner v. Bowen, 862 F.2d 708, 710
(8th Cir. 1988) (per curiam).
Plaintiff did not explicitly request the Court to equitably
toll the limitations period, he sought leave to file his
complaint out of time because the untimely filing resulted
from his attorney's “excusable neglect.”
“Generally, equitable circumstances that might toll a
limitations period involve conduct (by someone other than the
claimant) that is misleading or fraudulent.”
Turner, 862 F.2d at 710. “Equitable tolling
thus far has been allowed only in those cases where the
government has hindered a claimant's attempts to exercise
[his] rights by acting in a misleading or clandestine
way.” Id (quoting Wong v. Bowen, 854
F.2d 630, 631 (2d Cir. 1988). Principles of equitable tolling
do not extend to cases involving an attorney's
“garden variety” excusable neglect. See
Harris v. Chater, 68 F.3d 478 (8th Cir. 1995)
(unpublished) (denying equitable tolling where claimant's
attorney misread the unclear date stamp on the Appeals
Council's letter). See also Irwin v. ...