Allen v. Commissioner of Social Security

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/23/15 DENYING 11 Motion to Dismiss for Lack of Jurisdiction. Defendant shall file the answer and the administrative record within 60 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOMMIE LEE ALLEN,

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Plaintiff,

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No. 2:13-cv-1366-EFB

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff brought this action seeking review of a final decision of the Commissioner of
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Social Security (“Commissioner”) denying his application for Supplemental Security Income
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(“SSI”) under Title XVI of the Social Security Act.1 Defendant has moved to dismiss the

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complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and (b)(1), arguing that the
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instant action is untimely. ECF No. 11. Plaintiff opposes the motion. ECF No. 15. For the
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following reasons, defendant’s motion is denied.
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I.

Background

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On May 10, 2010, plaintiff filed an application for SSI, claiming that he had been disabled
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since April 30, 2010. Declaration of Robert Weigel, Ex. 1 (ECF No. 11-2 at 8). On August 10,
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This action is before the undersigned pursuant to the parties’ consent. ECF Nos. 7, 9;
see 28 U.S.C. § 636(c).
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2011, an Administrative Law Judge (“ALJ”) issued a decision finding that plaintiff was not

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entitled to benefits under Title XVI of the Act. Id. at 8-17. Plaintiff requested the Appeals

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Council review the ALJ’s decision, and on May 3, 2013, the Appeals Council denied review,

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leaving the ALJ’s decision as the final decision of the Commissioner. Id. at 22-27. Plaintiff

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subsequently filed the instant action on July 9, 2013. ECF No. 1. Defendant now moves to

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dismiss the case on the ground that it is untimely. ECF No. 11. Further, defendant asserts that

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the failure to timely file the action is jurisdictional.

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II.

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Legal Standards
A. Rule 12(b)(1) Standards

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“Federal courts are courts of limited jurisdiction. They possess only that power

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authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511

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U.S. 375, 377 (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal

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of an action where federal subject matter jurisdiction is lacking. “When subject matter

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jurisdiction is challenged under Federal Rules of Civil Procedure 12(b)(1), the plaintiff has the

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burden of proving jurisdiction in order to survive the motion.” Tosco Corp. v. Cmtys. For a

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Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001).

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A party may seek dismissal for lack of jurisdiction “either on the face of the pleadings or

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by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139

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(9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge,

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the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman

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Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). “In such

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circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of

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disputed material facts will not preclude the trial court from evaluating for itself the merits of

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jurisdictional claims.” Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).

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B.

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To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint

Rule 12(b)(6) Standards

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must contain more than a “formulaic recitation of the elements of a cause of action”; it must

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contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell
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Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something more . . .

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than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of

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action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–

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236 (3d ed.2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)

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(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe

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the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in

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the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 42, reh’g denied, 396 U.S. 869 (1969).

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III.

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Discussion
Defendant argues that the complaint was filed outside the sixty day time for seeking

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judicial review, which is a limitation on the waiver of sovereign immunity to seek judicial review

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of final decisions of the Commissioner. ECF No. 11 at 2-3. As a sovereign, the United States is

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immune from suit except according to its consent to be sued. Lehman v. Nakshian, 453 U.S. 156,

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160 (1981). Congress has authorizes federal judicial review of “any final decision of the

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Commissioner of Social Security made after a hearing on which [the claimant] was a party.” 42

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U.S.C. § 405(g). To seek judicial review of a final decision of the Commissioner, a plaintiff must

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commence a civil action in federal court “within sixty days after the mailing to him of notice of

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such decision or within such further time as the Commissioner of Social Security may allow.” Id.

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The term “mailing” is construed as the date the claimant receives the notice. Vernon v. Heckler,

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811 F.2d 1274, 1277 (9th Cir. 1987). A claimant is presumed to have received notice “5 days

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after the date of such notice, unless there is a reasonable showing to the contrary.” 20 C.F.R.

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§ 422.210(c).
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The 60-day statute of limitations set forth in section 405(g) is a condition of sovereign

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immunity and therefore must be strictly construed. Bowen v. City of New York, 476 U.S. 467,

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479 (1986). “Accordingly, courts have dismissed actions filed only days after the expiration of

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this statute of limitations.” Edmond v. Colvin, 2014 WL 4964309, at * 3 (C.D. Cal. Aug. 29,

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2014) (citing Tate v. United States, 437 F.2d 88 (9th Cir. 1971); Davila v. Barnhart, 225 F. Supp.

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2d 337 (S.D.N.Y. 2002); O’Neill v. Heckler, 579 F. Supp. 979 (E.D. Pa. 1984)).

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The record before the court adequately demonstrates that the instant action was filed

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within the 60-day limitation period and is therefore timely. The notice of the Appeals Council’s

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determination was dated May 3, 2013, ECF No. 11-2 at 22-27, but was postmarked on May 6,

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2013. During the 60-day limitation period plaintiff was homeless and did not receive a copy of

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the Appeals Council’s determination. Declaration of Tommie Allen (ECF No. 15-3) ¶¶ 1, 2.

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However, plaintiff’s counsel received a copy of the notice. Pursuant to the firm’s customary

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practice, the notice was date-stamped upon receipt. Declaration of Stephanie Torney (ECF No.

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15-2) ¶ 4. The date-stamp reflects that the notice was received by counsel on May 13, 2013.

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Allen Decl. Ex. 2. A print out from the firm’s calendaring system also reflects that the notice was

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received by counsel on May 13, 2013. Id. at Ex. 1.

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Several courts have held that the date of receipt by counsel is controlling when

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determining the date on which the limitation period commenced. See Roverts v. Shalala, 848 F.

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Supp. 1008, 1013-1015 (M.D. Ga. 1994) (“In those cases in which a representative has been

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designated by a claimant according to the regulations, this court would begin the sixty day period

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for filing an appeal from the date of notification of the representative, whether it be presumed

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date of notification or the actual date established by reasonable evidence.”); Bartolomie v.

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Heckler, 597 F. Supp. 1113, 1116 (N.D.N.Y. 1984) (finding that notice of the Appeals Council’s

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determination must be sent to the claimant’s attorney in order to start the running of the limitation

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period); Penner v. Schweiker, 701 F.2d 256 (3d Cir. 1983); see also 20 C.F.R. § 416.1515(b) (“A

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notice or request sent to your representative, will have the same force and effect as if it had been

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sent to you.”); but see Flores v. Sullivan, 945 F.2d 109, (5th Cir. 1991) (using claimant’s rather

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than representative’s date of receipt in determining commencement of limitation period); and
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Leetch v. Sullivan, 1991 WL 259261 (D. Wyo. 1991) (finding that notice is received when it is

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delivered to either the individual or to his attorney and the time for commencing a civil action

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begins to run from the earlier of these two dates).

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In this case, plaintiff was homeless during the relevant time period and did not receive a

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copy of the notice. His attorney, however, received notice on May 13, 2013. There is “nothing in

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the record to suggest that . . . plaintiff would have received notice prior to counsel.” Pettway v.

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Barnhart, 223 F. Supp. 2d 1354, 1362-63 (S.D. Ala. 2002). Under these circumstances, the court

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finds that plaintiff has adequately demonstrated that the notice of the Appeals Council’s

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determination was not received until May 13, 2013, thereby rebutting the presumption that

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plaintiff had notice five days after the date provided on the notice. As plaintiff did not receive

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notice until May 13, 2013, he had until July 12, 2013 to commence this action. Plaintiff

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complaint was filed on July 9, 2013, and therefore this action is timely.

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IV.

Conclusion

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Based on the foregoing, it is hereby ordered that:

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1. Defendant’s motion to dismiss, ECF No. 11, is denied.

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2. Within 60 days of this order, defendant shall file the administrative record and an

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answer.
3. All other dates set forth in the court’s scheduling order, ECF No. 5, shall be modified

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accordingly.

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DATED: June 23, 2015.

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