Faulkner v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 11/18/16. (SMH)
2016 Nov-18 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 4:14-CV-1816-SLB
This case is presently pending before the court on defendant’s Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment. (Doc. 8.)1 Plaintiff, James Faulkner,
filed this action against defendant, Carolyn W. Colvin, Acting Commissioner of Social
Security, seeking review of the Commissioner’s final decision denying his claim for
disability benefits. (See doc. 1 ¶ 3.) The Commissioner has moved to dismiss this action as
untimely filed. (Doc. 8 at 3.) Upon consideration of the record, the submissions of the
parties, and the relevant law, the court is of the opinion that defendant’s Motion for
Summary Judgment, (doc. 8), is due to be granted.
On July 19, 2014, the Appeals Council sent Faulkner notice of its decision denying
his request for review. (Doc. 8-3 at 1.) In its notice, the Appeal Council told Faulkner of
his right to ask the district court to review the decision denying his claim for benefits:
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
If you disagree with our action, you may ask for court review of the
Administrative Law Judge's decision by filing a civil action.
If you do not ask for court review, the Administrative Law Judge's decision
will be a final decision that can be changed only under special rules.
You may file a civil action (ask for court review) by filing a complaint in the
United States District Court for the judicial district in which you live. The
complaint should name the Commissioner of Social Security as the defendant
and should include the Social Security number(s) shown at the top of this
You have 60 days to file a civil action (ask for court review).
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.
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.
(Id. at 2-3.) Faulkner filed his Complaint in this court on September 24, 2014. (Doc. 1.)
Faulkner had 65 days, or until September 22, 2014, to file his Complaint. His
Complaint, filed on September 24, 2014, was untimely filed. Faulkner contends his
Complaint was filed late due to the miscalculation of the filing deadline by counsel’s
assistant. (Doc. 10 at 1.) This contention is not disputed. Indeed, none of the underlying
facts are disputed.
The Commissioner filed her Motion to Dismiss/Motion for Summary Judgment on
December 29, 2014. (Doc. 8.) Thereafter, Faulkner filed his response, which stated,
“Plaintiff’s Complaint should not be dismissed because Counsel for Plaintiff has written to
the Appeals Council on 1/14/15 requesting permission for extension to file a complaint.”
(Doc. 9.) The Appeals Council denied Faulkner’s request for an extension on October 20,
2015. (Doc. 10 at 1, doc. 10-1.) In its decision, the Appeals Council stated:
Under our rules, we may extend the time to file a civil action if you have a
good reason for filing late.
You did not timely seek an extension of time nor did you file your complaint
timely. You stated that you inadvertently filed late.
After considering the facts in this case, we find no reason under our rules to extend
the time to file a civil action. Without more, we find that you have not provided a
good reason for making or granting the request. Therefore, we have denied your
request for more time.
(Doc. 10-1 at 1.)
Faulkner contends that the Appeals Council “abused its discretion by denying the
request for an extension because the request was untimely when ‘timeliness’ is not included
in the regulations as criteria for denying an extension.” (Doc. 10 at 3.) He also argues that
his deadline for filing a Complaint should be equitably tolled. (Id.)
The parties do not dispute that the Complaint was filed too late. Faulkner contends
it was filed one-day late, while the court’s calculation indicates it was filed two-days late.
Nevertheless, the Complaint was late and the reason for Faulkner’s untimely filing was the
miscalculation of the deadline by Faulkner’s counsel.
The decision of the Appeals Council “ not to extend the sixty-day statute of
limitations of 42 U.S.C. § 405(g) for filing in the district court is not subject to judicial
review.” Stone v. Heckler, 778 F.2d 645, 649 (11th Cir. 1985), quoted in Waller v. Comm'r
of Soc. Sec., 168 Fed. Appx. 919, 920-21 (11th Cir. 2006)(“As an initial matter, to the extent
Waller challenges the decision of the AC not to grant an extension, that decision is not
subject to judicial review. In Stone v. Heckler, 778 F.2d 645 (11th Cir. 1985), we held the
AC's decision not to grant an extension was not subject to judicial review and stated ‘a Social
Security claimant should not rely upon the possibility of an administrative extension of time’
and allowing judicial review ‘would allow claimants to frustrate the Congressional intent to
forestall belated litigation of stale eligibility claims.’ Id. at 648 (quotations, alteration, and
citation omitted).”).2 Therefore, the court will not consider Faulkner’s argument that the
Appeals Council abused its discretion in denying his request for an extension.
Faulkner also contends that his deadline for filing his Complaint should be equitably
tolled. He argues, “Equitable tolling should extend the time for filing in this case, Counsel’s
office miscalculated the deadline by one day and filed the complaint one day late.3 The
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
By the court’s calculation, the Complaint was filed two days late. Nevertheless, the
parties agree that the Complaint was filed late.
Appeals Council delay in responding is a factor in favor of Plaintiff.4 Most importantly, the
Appeals Council wrongly assumed the request was untimely.” (Doc. 10 at 4 [footnote
As set forth above, this court does not review the Appeals Council’s decision
regarding Faulkner’s request for an extension. Therefore, the Appeals Council’s reasons for
such denial are not a matter of the court’s concern.5
As to equitable tolling, the Eleventh Circuit has held, “[W]hile we believe the law is
well-settled that equitable tolling may apply to § 405(g)’s statute of limitations, before a
court may do so it must apply ‘traditional equitable tolling principles.’ And traditional
equitable tolling principles require that the claimant demonstrate extraordinary
circumstances, such as fraud, misinformation, or deliberate concealment.” Jackson v.
The court notes that Faulkner filed his request for an extension in January 2015,
months after he filed his Complaint in September 2014. Faulkner’s Complaint had already
been filed too late and nothing the Appeals Council did, or did not, do after that date is
relevant to the issue of whether or not the deadline for filing the complaint should be tolled
up to and including September 24, 2014. See Holland v. Florida, 539 F.3d 1334, 1340 (11th
Cir. 2008)(“Petitioner cannot reasonably argue that the incidents to which he draws our
attention – both occurring after the limitations period had run – prevented him from filing
a federal habeas petition timely.”)(emphasis added), rev'd on other grounds 560 U.S. 631,
649 (2010). The Appeals Council’s inaction after Faulkner had filed his untimely Complaint
did not stand in the way of Faulkner timely filing his Complaint. See Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)(litigant must show “that some extraordinary circumstance stood
in his way” of timely filing a Complaint to be entitled to equitable tolling).
The court notes, as quoted above, that the Appeals Council did not deny Faulkner’s
request for an extension because it was untimely filed; it denied the request because Faulkner
had not shown good cause for such an extension. (Doc. 10-1 at 2 [“[W]e find that you have
not provided a good reason for making or granting the request.”].)
Astrue, 506 F.3d 1349, 1355 (11th Cir. 2007)(emphasis in original). However, “a garden
variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to
miss a filing deadline does not warrant equitable tolling.” Holland v. Florida, 560 U.S. 631,
651-52 (2010)(internal citations and quotations omitted); Collier-Fluellen v. Commissioner
of Soc. Sec., 408 Fed. Appx. 330, 330 (11th Cir. 2011)(“[I]t is undisputed that the reason
why [plaintiff’s] complaint was not timely filed was because her attorney miscalculated the
Unfortunately, such negligence on the part of her attorney does not
constitute an extraordinary circumstance.” (citing Jackson, 506 F.3d at 1355-56)); see also
Smith v. Astrue, 393 Fed. Appx. 596, 596 (11th Cir. 2010)(“The district court correctly
concluded that Smith's arguments about her mental illness, dependence on her daughter, and
attorney error do not constitute extraordinary circumstances that warranted equitable
The court finds that the material facts are not disputed and, as a matter of law,
Faulkner has not shown such exceptional circumstances as are necessary for equitable tolling
of the statute of limitations. His failure to timely file his Complaint was the result of
ordinary negligence on the part of counsel and/or counsel’s staff in calculating the filing
date. Therefore, the court finds, without dispute, that Faulkner’s Complaint was untimely
filed and is due to be dismissed as a matter of law.
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and the Commissioner defendant is entitled to judgment as a matter of law. An
Order granting the Commissioner’s Motion for Summary Judgment will be entered
contemporaneously with this Memorandum Opinion.
DONE this 18th day of November, 2016.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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