Agan v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER Because Mr. Agans complaint was untimely and because he has presented no basis for equitable tolling, the court GRANTS the Commissioners motion to dismiss and DISMISSES WITHOUT PREJUDICE Mr. Agans complaint. Signed by Judge Karon O Bowdre on 1/3/13. (SAC )
2013 Jan-03 PM 04:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES DALE AGAN,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
MEMORANDUM OPINION AND ORDER
This matter comes before the court on the “Commissioner’s Motion to Dismiss Plaintiff’s
Complaint.” (Doc. 6). In his complaint, Plaintiff James Agan seeks review by the Commissioner
of the Social Security Administration’s denial of benefits. (Doc. 1). The Commissioner argues
that Plaintiff Mr. Agan’s complaint should be dismissed as untimely. The court issued an order
setting a briefing schedule for the motion to dismiss (doc. 7), but Mr. Agan did not respond to the
Under 42 U.S.C. § 405(g),
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.
The date of “mailing” in the statute has been interpreted to mean the date of the
claimant’s receipt of the Appeals Council’s “notice of denial of request for review of the
administrative law judge’s decision.” 20 C.F.R. § 422.210(c) (2011). The date of receipt of
notice of the Appeals Council’s decision is presumed to be five days after the date of the
Council’s notice to the claimant. Id. In plain English, the claimant has sixty-five days after the
date of the Councils’ notice in which to file a civil action with the district court to review the
decision, and any complaint filed after sixty-five days is untimely.
Here, the Appeals Council issued a notice denying Mr. Agan’s request for review on May
1, 2012. (Doc. 6-1, at 17). This notice included sections entitled “How to File a Civil Action”
and “Time to File a Civil Action” that specifically stated Mr. Agan had sixty-five days from the
date of the notice to file his complaint in district court. Id. at 18. The notice also informed Mr.
Agan that if he could not file his complaint within sixty-five days, he could make a written
request for an extension of time to the Appeals Council. Id.
The motion to dismiss contains the declaration under penalty of perjury of Patrick J.
Herbst, Chief of Court Case Preparation and Review Officer of the Social Security
Administration, who asserts that neither Mr. Agan nor his counsel requested the Appeals Council
extend the time in which to file a civil complaint. (Doc. 6-1, at ¶ 3(b)). Mr. Agan filed his
complaint with this court on July 9, 2012. (Doc. 1). The last day for Mr. Agan to file an action
challenging the denial of benefits was Thursday, July 5, 2012. Therefore, his complaint was
“The 60 day period for filing a civil action is not jurisdictional, but is a period of
limitation which may be subject to equitable tolling.” Turner v. Astrue, 2008 WL 4793643, *2
(N.D. Fla. 2008) (citing Bowen v. City of New York, 476 U.S. 467 (1986)). “[T]raditional
equitable tolling principles require a claimant to justify her untimely filing by a showing of
extraordinary circumstances.” Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir 2007). Mr.
Agan has not shown any reason why this court should toll the sixty day limitations period, and, in
fact, has not responded to the motion to dismiss at all.
Because Mr. Agan’s complaint was untimely and because he has presented no basis for
equitable tolling, the court GRANTS the Commissioner’s motion to dismiss and DISMISSES
WITHOUT PREJUDICE Mr. Agan’s complaint.
DONE and ORDERED this 3rd day of January, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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