Garfield v. Astrue

Filing 88

ORDER by Judge Vaughn R Walker denying 87 Motion for Leave to Appeal In Forma Pauperis (vrwlc3, COURT STAFF) (Filed on 7/8/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Janet H Garfield has filed a motion under FRAP 24(a)(1) seeking leave to proceed in forma pauperis on appeal. #87. The court now DENIES the motion and sets forth its reasons Doc JANET H GARFIELD, Plaintiff, v MICHAEL J ASTRUE, Commissioner of Social Security, Defendant. / No C 03-4124 VRW CA9 Docket No: 09-15664 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

herein as required by FRAP 24(a)(2). On April 4, 2009, plaintiff filed a notice of appeal (Doc #78, 79) from (1) the court's December 12, 2008 order granting defendant's motion for summary judgment (Doc #74) and (2) the court's February 5, 2009 order denying her motion under FRCP 59(e) to alter or amend the December 12 order. Doc #77. Plaintiff did Doc #82.

not submit the $455 filing fee with her notice of appeal.

Following a written request from the clerk of the court for the

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filing fee, plaintiff submitted a completed FRAP Form 4, the affidavit accompanying motion for permission to appeal in forma pauperis, leaving blank the line for stating "my issues on appeal" but bearing her signature. Doc #83.

On May 6, 2009, the court provided plaintiff a further opportunity to comply with FRAP 24(a)(1). Doc #86. Because

plaintiff did not proceed in forma pauperis in the district court action, the rule required her to file a motion to proceed in forma pauperis on appeal. The May 6 order gave plaintiff twenty-one days

in which to file a motion attaching an affidavit that not only provided a detailed description of her inability to pay court fees and costs (FRAP 24(a)(1)(A) & Form 4), but also "claim[ed] an entitlement to redress" (FRAP 24(a)(1)(B)) and stated "the issues that the party intends to present on appeal." FRAP 24(a)(1)(C).

On May 16, 2009, plaintiff filed a motion seeking leave to proceed in forma pauperis on appeal. Doc #87. Plaintiff

correctly pointed out that her already-completed Form 4 included an affidavit that contained the statement "I believe I am entitled to redress," thus fulfilling the requirement of FRAP 24(a)(1)(B). #87-1. As for FRAP 24(a)(1)(C), plaintiff's attorney Ian Sammis Doc

submitted his own declaration captioned "Declaration of Ian Sammis Ex Rel Janet H Garfield" stating that Ms Garfield alleges her answer to the Form 4 question on the issues that she intends to present on appeal is/are: the District Court's affirmation of the Appeals Council's 91-5p determination that there was no good cause for tolling administrative finality of the unappealed Appeals Council's denial for remand to allow Claimant a hearing. Doc #87-2 (emphasis added). \\ 2

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The "issue" thus expressed is not phrased in the typical form of an issue for the court of appeals ­­ that is, it does not set forth a specific contention or question regarding an alleged error on the part of the district court warranting review. This is

one significant deficiency with plaintiff's motion that might alone warrant denial; but under the circumstances, a strictly procedural ruling would not be appropriate. While it is unfortunate that,

given that plaintiff is represented by counsel, it is necessary to construe her submissions liberally in order to determine their meaning, the court now does so in order to determine whether or not the proposed appeal is frivolous or "not taken in good faith." USC § 1915(a)(3). Plaintiff's stated "issue" for appeal most closely resembles the second of the four issues she presented to the district court on appeal from the Social Security Administration (SSA): (1) whether plaintiff has met her burden to establish that 28

equity allows an otherwise untimely claim; (2) whether the SSA's Appeals Council erred in finding that plaintiff did not have good cause for failing to file a timely claim; (3) whether the court should exercise jurisdiction pursuant to the mandamus statute, 28 USC § 1361; and (4) whether the court should grant plaintiff's request to augment the record. #74) at 2. Order dated December 12, 2009 (Doc

The stated "issue" for appeal may therefore fairly be

construed as a challenge to the court's determination that there was no legal basis for equitable tolling of the sixty-day limitation period under 42 USC § 405(g) that would have warranted allowing plaintiff to initiate her suit nearly six years late. Order dated December 12, 2008 (Doc #74) at 12-16. 3

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To review the raw chronological facts, the SSA's determination became final on October 17, 1997, but plaintiff did not file her complaint until September 10, 2003. Id at 3. In the

interim, plaintiff retained attorney Ian Sammis on September 20, 2002 ­­ nearly one year before her lawsuit was filed. Id at 5-6.

Notwithstanding these seemingly insurmountable chronological facts, plaintiff was given an opportunity to develop a factual basis for equitable tolling based on her allegation that her "bi-polar mental impairment * * * caused her to be ineffective in appealing her denial and without an attorney unable to appeal against Defendant in Federal Court." Doc #74 at 13. As noted in

the December 12 order, plaintiff largely forewent this opportunity, instead opposing summary judgment by: (1) "attempt[ing] to obfuscate the issue" with lengthy, unsubstantiated accusations that the SSA was responsible for plaintiff's failure to file a timely appeal (Doc #74 at 13); and (2) submitting irrelevant evidence of hospitalizations neither during the sixty-day period following the SSA's final denial nor any time close to it. Id at 15.

More importantly, plaintiff did not even attempt to explain why nearly one full year elapsed from the time she hired attorney Ian Sammis to represent her in her social security matter and the date she filed her complaint. As the court wrote in its

December 12 order, "[e]quitable tolling is not available to avoid the consequences of Plaintiff's negligence or that of her counsel," citing Vitt v Astrue, 2008 US Dist LEXIS 14674 at *13 (appeal under § 405(g) held time-barred when filed five days late) and Leorna v United States Dept of State, 105 F3d 548, 541 (9th Cir 1997)("Once a claimant retains counsel, tolling ceases because she has gained 4

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the means of knowledge of her rights and can be charged with constructive knowledge of the law's requirements."). the court further wrote, tolling cannot help bridge the year-long chasm between the date plaintiff obtained counsel and the date her counsel filed suit. Plaintiff may have a cause of action for malpractice based on her attorney's failure to seek timely review after being hired to "represent client in a Social Security Disability case at the Federal District Court Level," but her suit against defendant is time-barred. Doc #74 at 16. Given the undisputed facts and the controlling legal authorities as detailed in the court's December 12 order, a less likely case for a finding of equitable tolling can scarcely be imagined. Notwithstanding the insurmountable procedural obstacles to recovery that were explained in detail in the court's order granting summary judgment for the defendant, plaintiff responded to the entry of judgment against her by filing a motion to amend the judgment under FRCP 59(e). Doc #76. Upon investigation, the court Accordingly,

determined that it is the practice of plaintiff's attorney Ian Sammis to file such motions routinely after judgment is entered against his clients and that he had done so in eighteen cases identified by the court ­­ all without success; accordingly, the court entered an order denying the motion, documenting counsel's misuse of FRCP 59(e) and/or FRCP 60(b) and admonishing counsel against further misuse of these rules and the attendant waste of court resources. Doc #77. This is one of the two orders that is

the subject of the proposed appeal. \\ 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ` DENIED.

It appears that, like the frivolous motion under FRCP 59(e) filed herein, plaintiff's appeal is not the product of thoughtful and informed consideration of the likelihood of persuading the court of appeals to view the equitable tolling issue in a light different from this court and is certainly not appropriate for in forma pauperis status. The court therefore

finds that plaintiff's proposed appeal is "not taken in good faith" within the meaning of 18 USC § 1915(a)(3). The motion to proceed in forma pauperis on appeal is FRAP 24(a)(2).

IT IS SO ORDERED.

_______________________________ VAUGHN R WALKER United States District Chief Judge

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