Robinson v. Colvin

Filing 14

Order by Magistrate Judge Nandor J. Vadas granting 9 Motion to Dismiss and instructing Clerk of Court to return to Counsel for Plaintiff the filing fee of four hundred dollars.(njvlc2, COURT STAFF) (Filed on 3/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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JAMES JEFFREY ROBINSON,

Case No. 16-cv-06709-NJV

Plaintiffs,
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v.

ORDER ON MOTION TO DISMISS

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NANCY A. BERRYHILL,

Re: Dkt. No. 9

Defendants.

United States District Court
Northern District of California

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Before the court is Defendant‟s Motion to Dismiss (Doc. 9). Defendant requests that the

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court dismiss the Complaint: (1) for want of jurisdiction; (2) because the Complaint was filed

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without the knowledge and consent of Plaintiff; and (3) because counsel for Plaintiff has failed to

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show good cause for the late filing of the Complaint. See Mot. (Doc 9).

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42 U.S.C. § 405(g) requires the commencement of a civil action within 60 days after the

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mailing of the final decision made after a hearing for Social Security benefits. The Commissioner

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maintains that counsel for Plaintiff filed this action 49 days after the deadline passed and that

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because the United States has not waived sovereign immunity to be sued beyond the statutory

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deadline, this court lacks jurisdiction to hear the matter.

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Section 405(g) also allows the Commissioner to extend the 60 day time period. Counsel

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for Plaintiff requested two separate extensions of time. See Pl.‟s Resp. (Doc. 12) Exh. A. Neither

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of those extensions were granted. Thus, because the Complaint was filed after the 60 day time

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period, the complaint was not timely filed. That however, is not the end of the analysis because

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“[t]he 60–day requirement in section 405(g) has been construed as a statute of limitations that is

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waivable by the Secretary or the courts, rather than a jurisdictional requirement.” Maloney v.

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Astrue, No. C 09-04244 MHP, 2011 WL 1791550, at *3 (N.D. Cal. May 10, 2011) (citing Bowen

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v. City of New York, 476 U.S. 467, 477, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986); Johnson v.

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Shalala, 2 F.3d 918, 923 (9th Cir.1993); Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir.1987)).

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Clearly the Commissioner does not intend to waive the 60-day requirement.
For the court to accept the late filing of this case, the court would have to find that the

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statute of limitations should be equitably tolled. In general, the tolling of the limitations period

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should only be “in the rare case” and only where “the equities in favor of tolling the limitations

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period are so great that deference to the agency‟s judgment is inappropriate.” Bowen, 476 U.S.

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480, 481.
Therefore, in order to determine whether equitable tolling is appropriate in this case the

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court must look into the circumstances surrounding the late filing. Counsel for Plaintiff‟s requests

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United States District Court
Northern District of California

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for the extensions of the 60-day filing deadline were based on to his “continuing, and up to that

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time fruitless, attempts to locate the plaintiff.” Pl.‟s Resp. (Doc. 12) at 2. This brings us to

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Defendant‟s second basis for dismissal; that the Complaint was filed without the knowledge and

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consent of Plaintiff. Counsel for Plaintiff argues that this should, or can be excused, based on

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Plaintiff‟s mental health issues. However, to make a determination that Plaintiff‟s mental health

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issues precluded a timely-filing such that the equities require the tolling of the statutory time

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period the court would need to hold a hearing and take evidence. The court is unable to do so

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without Plaintiff‟s participation. On the existing record, the court has Counsel for Plaintiff‟s

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representations regarding Plaintiff‟s troubled mental health history, on the other hand, Counsel for

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Plaintiff asserts that at some recent point Plaintiff had been shopping at a market with his debit

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card. This, coupled with the Commissioner‟s denial of benefits, highlights the need for the court

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to have an evidentiary hearing. The court simply cannot make that determination on the current

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record.

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While Plaintiff‟s mental status may be the cause of his failure to communicate with

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Counsel, it may also very well simply be that Plaintiff has no further interest in prosecuting this

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action. Counsel for Plaintiff appears to nearly concede that this court must have Plaintiff‟s

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participation in order to proceed. The basis for the requests for an extension, that Plaintiff could

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not be reached, as well as the need for Counsel to pay the filing fee to initiate this action despite
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believing that Plaintiff would qualify to proceed in forma pauperis, evidence the necessity for

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Plaintiff‟s participation. As Counsel states “[f]iling a complaint implying a plaintiff is alive and is

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a willing litigant must be supported by facts. Plaintiff‟s counsel was attempting to confirm those

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facts when requesting extensions from the Appeals Council.” Pl.‟s Resp. (Doc. 4) at 4. At this

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point, the court still lacks those facts. While the debit card use suggests that Plaintiff may be

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alive, nothing indicates that he is a willing participant. Moreover, the parties would be unable to

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carry out judgment were the court to grant Plaintiff relief, either the remand of the action for

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further proceedings or the award of benefits.

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Finally and maybe most importantly, allowing these proceedings to continue without
Plaintiff‟s knowledge and consent would deprive Plaintiff the opportunity to prosecute the action

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United States District Court
Northern District of California

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in a manner in which he sees fit. Indeed, to allow Counsel for Plaintiff to prosecute this action

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without Plaintiff‟s knowledge would eviscerate the attorney and client role and relationship. And,

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even assuming Plaintiff to be incompetent as Counsel suggests, to allow Counsel for Plaintiff to

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file and proceed without his permission would be to allow Counsel to act as Plaintiff‟s guardian,

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which would nullify the system of protections to incompetent persons embodied in Rule 17 of the

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Federal Rules of Civil Procedure. The Rule states in pertinent part that: “A minor or an

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incompetent person who does not have a duly appointed representative may sue by a next friend or

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by a guardian ad litem.” Fed. R. Civ. P. 17(c) (2). “A guardian ad litem is not appointed to serve

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as counsel but to „act for the [ward] in the cause, with authority to engage counsel, file suit, and to

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prosecute, control, and direct the litigation.‟” Adamson v. Hayes, No. CV-05-2286-PHX-JWS,

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2010 WL 5069885, at *5 (D. Ariz. Dec. 7, 2010) (quoting Noe v. True, 507 F.2d 9, 12 (6th

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Cir.1974) (citing Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir.1955))). Accordingly,

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without Plaintiff‟s participation, this case is properly dismissed.

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Counsel for Plaintiff‟s attempts to locate Plaintiff, as well as Counsel‟s excellent reputation

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which is known to the court, make clear that Counsel‟s filing of this Complaint was done in a

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manner to protect Plaintiff‟s interests. The court appreciates Counsel‟s efforts in this matter.

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Thus, the court will instruct the Clerk of the Court to return to Counsel the amount of the filing fee

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paid in initiating this action.
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CONCLUSION

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For the above stated reasons it is ORDERED that the Motion to Dismiss is GRANTED.

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Further, the court instructs the Clerk of Court to return to Counsel for Plaintiff the filing fee of

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four hundred dollars ($400.00).

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A separate judgment will issue.

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IT IS SO ORDERED.

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Dated: March 31, 2017
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NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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