Savage v. Social Security Administration Commissioner
ORDER declining to adopt 13 Report and Recommendations; granting 9 Motion to Dismiss for Failure to State a Claim. Signed by Honorable Susan O. Hickey on November 10, 2014. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CANDIS M. SAVAGE
CASE NO. 14-CV-1014
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Before the Court is the Report and Recommendation filed June 2, 2014 by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No.
13). Judge Bryant recommends that Motion to Dismiss (ECF No. 9) be denied. After reviewing the
record de novo, the Court declines to adopt Judge Bryant’s Report and Recommendation.
Defendant filed a Motion to Dismiss arguing that this action was untimely filed. Specifically,
Defendant points out that the deadline for filing was February 20, 2014 and that Plaintiff’s action
was not filed until February 27, 2014. After reviewing the submitted evidence, Judge Bryant
concluded that it appeared that Plaintiff attempted to mail her Complaint on February 7, 2014 and
that there must have been a delay in delivery by the U.S. Postal Service that prevented the action
from being filed by February 20, 2014. For this reason, Judge Bryant recommends that the Motion
to Dismiss be denied and that Plaintiff’s action be considered as timely filed. Defendant has filed
objections to the Report and Recommendation. (ECF No .14).
Plaintiff seeks judicial review of a final decision of the Commissioner of the Social Security
Administration, denying her application for Social Security benefits. The Commissioner noticed
Plaintiff that her request for review was denied on December 17, 2013. (ECF No. 9). Plaintiff then
had sixty days, or until February 20, 2014, to commence a civil action to review the final decision
of the Commissioner. 42 U.S.C. § 405(g). It is undisputed that this action was not filed until
February 27, 2014. (ECF No. 1).
Plaintiff argues that she timely prepared and mailed her Complaint on February 7, 2014, but
that there was a delay in the United States Postal Service that kept it from being filed until February
27, 2014. However, the attorney assumes the risk that there may be a slight disruption of ordinary
mail service which may delay filing. Hallgreen v. U.S. Dep’t of Energy, 331 F.3d 588, 590 (8th Cir.
2003). Moreover, Plaintiff should have suspected that there was some sort of delay in the filing of
the Complaint when she did not receive electronic acknowledgment that the Complaint had been
received and filed within a few days of mailing. Had Plaintiff been diligent in monitoring the receipt
of her Complaint, there would have been time to remedy the situation and make a second attempt
at filing. Under these circumstances, the Court finds no reason to excuse the late filing of the
Complaint. Accordingly, the Court finds that the Motion to Dismiss should be and hereby is
IT IS SO ORDERED, this 10th day of November, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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