Allen v. Price
Filing
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ORDER Vacating 34 FINDINGS and RECOMMENDATIONS that Plaintiff's Social Security Appeal be Dismissed as Untimely, signed by Magistrate Judge Jeremy D. Peterson on 1/4/19. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GEORGE N. ALLEN,
Plaintiff,
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v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Case No. 1:17-cv-00239-DAD-JDP
ORDER VACATING FINDINGS AND
RECOMMENDATIONS THAT PLAINTIFF’S
SOCIAL SECURITY APPEAL BE
DISMISSED AS UNTIMELY
Defendant.
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Plaintiff, referred to herein as “claimant,” seeks judicial review of a final decision by the
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Commissioner of Social Security concluding that he was erroneously paid $20,647 in Social
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Security retirement benefits while he was a civil detainee held at state expense at the Coalinga
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State Hospital. On October 26, 2018, the court issued findings and recommendations that this
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appeal be dismissed as untimely. ECF No. 34. Those findings and recommendations were served
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on claimant and contained notice that any objections thereto were to be filed within fourteen days
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after service. Id. at 8. On November 7, 2018, claimant timely filed his objections. ECF No. 35.
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In his objections, claimant argues that his appeal was not untimely, pointing to evidence
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that he had been granted an extension of time by the Appeals Council. Specifically, claimant
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references a letter from the Appeals Council dated December 8, 2017, granting plaintiff 60 days
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to file a civil action. ECF No. 32 at 13-14.
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Even taking into account this letter—which does not appear in the Certified
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Administrative Record, ECF No. 13-1—claimant’s appeal remains presumptively untimely. The
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letter from the Appeals Council extending claimant’s time to file a civil action to review the
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Commissioner’s decision was dated December 8, 2017. ECF No. 32 at 13-14. Five days after the
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date of the notice—when receipt is presumed—was December 13, 2017, and 60 days thereafter—
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the deadline for commencing suit—was February 12, 2018.1 See 42 U.S.C. § 405(g); 20 C.F.R.
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§ 422.210(c). Claimant did not file his complaint until February 17, 2018, ECF No. 1,
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approximately 66 days after the presumed mailing date.
Claimant may rebut the presumed mailing date by making “a reasonable showing to the
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contrary.” See 20 C.F.R. § 422.210(c). In claimant’s sworn objections to the findings and
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recommendations, he alleges that he received the letter granting him the extension on December
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17, 2017—four days after the presumed mailing date. ECF No. 1, at 5. Claimant has
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demonstrated that he has had problems receiving mail, see ECF No. 32 at 15 (copy of envelope
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from Social Security Administration marked as “return to sender”), and, therefore, the court is
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inclined to accept claimant’s assertion that he received the letter four days after the presumed
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date. However, even if the court were to accept claimant’s assertion that he received the 60-day
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extension on December 17, 2017, claimant’s civil complaint would still be untimely. Sixty days
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after December 17, 2017 is February 15, 2018, but claimant filed this action on February 17,
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2017—two days late. See Bowen v. City of New York, 476 U.S. 467, 479 (1986) (citing Block v.
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N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983) (“[W]hen Congress
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attaches conditions to legislation waiving the sovereign immunity of the United States, those
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conditions must be strictly observed, and exceptions thereto are not to be lightly implied.”)).
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However, we will not dismiss a claimant’s appeal as untimely if the defendants have
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waived their right to a defense of untimeliness. See Levald, Inc. v. City of Palm Desert, 998 F.2d
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680, 687 (9th Cir. 1993) (“[A] district court may sua sponte dismiss a complaint as untimely so
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Sixty days after December 13, 2017 is February 11, 2018, but because February 11, 2018 is a
Sunday, the deadline for filing became Monday, February 12. See Fed. R. Civ. P. 6(a)(1)(C)
(“[I]f the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end
of the next day that is not a Saturday, Sunday, or legal holiday.”).
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long as the defendant has not waived the defense.”). Here, in the time since we issued our
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findings and recommendations, the Commissioner has explicitly waived the statute-of-limitations
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defense: In her response to plaintiff’s objections, the Commissioner stated that she “withdraws
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the argument that plaintiff’s suit was untimely . . . [and] submits that the question of whether the
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case should be dismissed on the merits is ripe for the Court to review at this time.” ECF No. 36 at
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3. Given this development, the court will vacate our original findings and recommendations. The
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court will grant the Commissioner’s request to decide this case on the merits and issue new
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findings and recommendations.2
Accordingly,
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1. The October 26, 2018 findings and recommendations issued by the court, ECF No. 34,
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are vacated.
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2. The court grants the Commissioner’s request to decide this case on the merits.
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IT IS SO ORDERED.
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Dated:
January 4, 2019
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UNITED STATES MAGISTRATE JUDGE
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The parties have fully briefed the merits issue.
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