Hess v. Commissioner of Social Security

Filing 21

ORDER ADOPTING 19 Report and Recommendation; Government's 13 Motion to Dismiss Case is GRANTED; Case is DISMISSED and Clerk shall enter judgment accordingly and close file in this case. Signed by Judge Frank R Zapata on 8/13/09. (CLJ, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Michael J. Astrue, Defendant. Leslie R. Hess, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-131-TUC-FRZ ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the Court is Magistrate Judge Guerin's Report and Recommendation. For the reasons stated below, the Report and Recommendation is accepted and adopted. The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). As the Report and Recommendation throughly discusses the relevant facts and law in reaching the proper decision in this case, the Court will not repeat that discussion. Magistrate Judge Guerin recommends granting the Government's motion to dismiss the case as it is undisputed that Plaintiff filed an appeal of the final decision of the Social Security Administration outside of the applicable 60 day statute of limitations. Plaintiff generally objects to the Report and Recommendation as he argues that equitable tolling should be

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allowed to excuse the untimely appeal as the appeal was only one day late, that the Government would not be prejudiced by allowing the appeal, and that the Social Security Administration itself took an exorbitant amount of time to actually issue their final decision in relation to the underlying administrative proceedings. Nonetheless, as the Report and Recommendation points out, these circumstances are insufficient to excuse the untimely appeal as equitable tolling only applies in extraordinary circumstances. There is an abundance of case law cited in the Report and Recommendation reflecting that a garden variety miscalculation of an appeal deadline by an attorney, which are the circumstances in this case, does not trigger equitable tolling. While disallowing the appeal certainly seems harsh as the appeal was only one day late, the law unfortunately is not on Plaintiff's side in regards to equitable tolling, and Plaintiff cites no authority showing that equitable tolling applies under the circumstances in this case. Plaintiff's objection is denied. Accordingly, IT IS HEREBY ORDERED as follows: (1) Magistrate Judge Guerin's Report and Recommendation (Doc. #19) is accepted and adopted. (2) The Government's motion to dismiss (Doc. #13) is granted. (3) This case is dismissed and the Clerk of the Court shall enter judgment accordingly and close the file in this case. DATED this 13th day of August, 2009.

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