McLaughlin v. Astrue

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Per Curiam. Unpublished. [11-1140]

Case: 11-1140

Document: 00116282883

Page: 1

Date Filed: 10/27/2011

Entry ID: 5591393

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 11-1140
MICHELLE L. MCLAUGHLIN,
Plaintiff, Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Andrew J. Bernstein and Law Offices of Joe Bornstein on brief
for appellant.
Timothy A. Landry, Special Assistant U.S. Attorney and Thomas
E. Delahanty II, United States Attorney, on brief for appellee.

October 27, 2011

Case: 11-1140

Document: 00116282883

Per Curiam.

Page: 2

Date Filed: 10/27/2011

Entry ID: 5591393

Claimant Michelle McLaughlin appeals from

the dismissal, on statute of limitations grounds, of her complaint
challenging the denial of her applications for disability and
supplemental security income benefits.

Under 42 U.S.C. § 405(g),

a claimant has 60 days in which to commence an action for judicial
review of such a denial, and the 60-day period runs from the date
on

which

the

claimant

receives

regarding

its

decision.1

See

the
20

Appeals

C.F.R.

§

Council's
422.210(c).

notice
The

regulation also creates a presumption that the date of receipt is
five days after the date on the notice unless the claimant makes “a
reasonable showing to the contrary.”

Id.

The district court here

concluded that claimant had not made such a showing and that the
complaint therefore had been filed late.

Because the analysis

underlying this conclusion is questionable, we vacate and remand
for further proceedings.
I.
It

is

undisputed

that

the

Appeals

Council’s

notice

denying claimant’s request for review is dated April 16, 2010, and
claimant does not challenge the Commissioner’s averment that the
notice was mailed on the same day.

Receipt therefore is presumed

to have occurred on April 21, and the 60-day limitations period

1

We note that the parties and the district court all assumed
that the date that a claimant, not his or her attorney, receives
the notice is the triggering date. Although there are different
points of view, we express no opinion on the matter, and will
proceed on the same assumption.
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Case: 11-1140

Document: 00116282883

expired on June 21.

Page: 3

Date Filed: 10/27/2011

Entry ID: 5591393

Claimant, however, did not file her complaint

until June 28, seven days later.
In an effort to rebut the presumption of receipt on April
21, claimant filed her own affidavit and an affidavit from her then
attorney.

As for counsel’s affidavit, counsel stated that she had

not received the Appeals Council’s notice until Friday, April 30.
Counsel, also submitted, in support, a copy of the notice that had
been date-stamped April 30 by the law firm’s office personnel.
Claimant,

in

her

own

affidavit,

then

averred

that,

although she could not remember the exact date that she had
received the Appeals Council’s notice, she nonetheless was sure
that receipt had not occurred until after April 21.

As for why she

was sure, claimant essentially explained that she had spoken with
counsel on either Monday or Tuesday, May 3 or May 4, regarding a
possible appeal

and

that,

since

she

was

disappointed

in

the

decision and anxious to learn about the next step, she would not
have waited more than a “few days” after receipt to speak with
counsel.

Based on the foregoing, claimant argued that since she

and counsel were located in adjacent small towns in Maine, it was
more than likely that she also had received the notice on Friday,
April 30, or, at the earliest, on Thursday, April 29 – i.e., a “few
days”

prior

to

the

Monday,

May

conversation.

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3

or

Tuesday,

May

4

phone

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We pause to note, before proceeding further, that the
district court and the parties all assumed that if receipt had
occurred prior to Thursday, April 29, the June 28 complaint would
be untimely.

They are mistaken, however.

That is, if receipt had

occurred on Tuesday, April 27 or Wednesday, April 28, the 60-day
time limit would have expired on Saturday, June 26 or Sunday, June
27 respectively. Thus, even if claimant had received the notice on
either of these earlier dates, she still had until Monday, June 28
to file a timely complaint.
Turning to the merits, then, the magistrate judge to whom
the matter had been referred determined that claimant’s showing was
insufficient to rebut the presumed receipt date of April 21.
analysis

underlying

this

conclusion,

however,

is

The

somewhat

confusing, and we therefore describe it in some detail.
In this regard, the magistrate judge first determined (1)
that the April 30 receipt date by claimant’s attorney did not
corroborate claimant’s assertion that she herself had received the
notice on or after April 29 and (2) that an equally reasonable
inference was that claimant had received the notice on April 28 or
April

27

(which,

as

noted,

everyone

assumed

would

make

the

complaint late but which, in reality, would still result in a
timely filing).

Recommended Decision, at 3-4.

Based on these

findings, the magistrate judge then concluded as follows:
The evidence presented by McLaughlin
concerning her receipt date is not
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sufficient to rebut the regulatory
presumption of receipt on April 21.
Attorney Jordan's receipt date, her
office's corroborating date stamp,
and McLaughlin's vague personal
recollections make it plausible that
McLaughlin received the notice after
April 21, but they do not make it
probable that [she] received the
notice on or after April 29.
Id. (emphasis added).
From the foregoing, it seems that the magistrate judge
essentially was requiring claimant to show, in order to rebut the
presumed receipt date of April 21, that she had received the notice
not only after the 21st but also on or after April 29 (the wrong
date in any event).

Another possibility is that the magistrate

judge was conflating two separate inquiries:

(1) whether claimant

had rebutted the regulatory presumption -- i.e., whether she had
demonstrated that she had received the notice after April 21 (which
may have been answered in the affirmative); and (2) if so, whether
the complaint had been timely filed -- i.e., whether claimant had
actually received the notice within 60 days of the June 28 filing
(which appears to have been answered in the negative).
The
magistrate

district

judge’s

court,

without

recommended

dismissing the complaint.

discussion,

decision, and

adopted

judgment

the

entered

Given the confusion, we think that a

remand is in order so that the district court, in light of the
following, can reconsider the motion to dismiss.

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II.
We begin with the presumption. It seems clear to us that
a claimant need not allege a specific date of receipt of the
Appeals Council’s notice in order to make a reasonable showing that
he or she received the notice after the five-day presumptive period
had ended.

Indeed, some claimants, for various reasons, assert

that they never received the notice and, as such, simply cannot
allege any receipt date.

Thus, to the extent that the district

court was requiring claimant to establish exactly when she received
the notice in order to show receipt after April 21, this was error.
As for rebutting the presumption, it is fairly wellaccepted that affidavits that merely state a date of receipt more
than five days after the Appeals Council’s notice, or allege nonreceipt within the five days, are not sufficient, standing alone,
to rebut the presumption.

See, e.g., McCall v. Bowen, 832 F.2d

862, 864-65 (5th Cir. 1987); Leslie v. Bowen, 695 F. Supp. 504, 506
(D. Kan. 1988); Rouse v. Harris, 482 F. Supp. 766, 768-69 (D.N.J.
1980).

On the other end of the spectrum, courts have found that

the presumption has been rebutted where a claimant can show that
the Appeals Council’s notice had not been mailed until five days
after the date on the notice or that the notice had been mailed to
an incorrect address.

See, e.g., Matsibekker v. Heckler, 738 F.2d

79, 81 (2d Cir. 1984); Chiappa v. Califano, 480 F. Supp. 856, 857
(S.D.N.Y. 1979).

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The case at hand, we think, falls somewhere between the
two situations outlined above.

That is, claimant did not merely

aver that she had failed to receive the Appeals Council's notice
prior to April 21.

Rather, she provided an explanation for why she

was sure that receipt had occurred after the 21st and she submitted
evidence in support -- i.e., her attorney’s copy of the notice,
dated-stamped April 30.

A case on point, and to which we direct

the court's and the parties' attention, is Pettway v. Barnhart, 233
F. Supp. 2d 1354 (S.D. Ala. 2002).
We only pause to address the Commissioner’s observation
regarding the failure of claimant's counsel to have requested an
extension of the deadline to submit the complaint.

We assume,

although the Commissioner does not spell it out, that he is arguing
that counsel’s lack of diligence somehow should be taken into
account in determining whether the presumption has been rebutted.
While we disagree, we note that the lack of diligence is clear.
Even with a receipt date of April 30, over six weeks
remained in which a complaint could have been timely filed by June
21, the

date

the

limitations

period

expired,

occurred on the presumed date of April 21.

if

receipt

had

Thus, this whole matter

could have been avoided had the complaint been filed sometime
during these six weeks.

Although this lack of diligence bars the

application of equitable tolling, see Donahue v. United States, 634
F.3d 615, 629 (1st Cir. 2011) ("[d]ue diligence is a prerequisite

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for equitable tolling"), it is not relevant to rebutting the
presumption. See Pettway, 233 F. Supp. 2d at 1363 (”[s]atisfaction
of the statute of limitations . . . depends on when events did
occur

and

not

arranged”).

on

when

they

might

more

prudently

have

been

Further, and the Commissioner cites no cases to the

contrary, it seems clear that, under the regulation, once the
presumption has been rebutted, a claimant has the full 60 days in
which to file his or her complaint.
Last, we turn to the second step in the statute of
limitations analysis -- i.e., whether, if the presumption has been
rebutted, the complaint was timely filed within 60 days of the date
that claimant received the Appeals Council’s notice.

In this

regard, since the statute of limitations in the case at hand is an
affirmative defense, the burden is on the Commissioner, not the
claimant, at this stage of the proceedings.

See Fed. R. Civ. P.

8(c)(1); McCall, 832 F.2d at 864; Matsibekker, 738 F.2d at 81;
Pettway, 233 F. Supp. 2d at 1363; Sinatra v. Heckler, 566 F. Supp.
1354,

1358-59

(E.D.N.Y.

1983)

(holding

that

“the

presumption

contained in the regulations is of the going-forward variety, with
the ultimate burden of persuasion with respect to lack of timely
filing on the agency”).

Thus, once the presumption has been

rebutted, the Commissioner must “prove that [the claimant] received
actual notice more than 60 days prior to filing the complaint in
district court.”

Matsibekker, 738 F.2d at 81.

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Here, if the

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Entry ID: 5591393

district court, in fact, made it to this step of the analysis, the
burden erroneously was placed on claimant to show a timely filing.
III.
Given the foregoing, the judgment of the district court
is vacated and the matter is remanded for further proceedings
consistent with this opinion.

No costs are awarded.

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