Roderick del Rosario v. Commissioner of Social Security
Filing
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Order by Magistrate Judge Donna M. Ryu granting 16 Defendant's motion for summary judgment. (dmrlc3, COURT STAFF) (Filed on 10/9/2019)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RODERICK DEL ROSARIO,
Plaintiff,
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ORDER ON DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
v.
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NANCY A. BERRYHILL,
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Re: Dkt. No. 16
Acting Commissioner of Social Security,
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United States District Court
Northern District of California
Case No. 18-cv-07197-DMR
Defendant.
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Plaintiff Roderick Del Rosario brought this action seeking judicial review of a decision by
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the Social Security Administration (“SSA”) denying his claim for supplemental security income
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benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 405(g). [Docket No. 1
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(Compl.).] Defendant Andrew Saul,1 Commissioner of Social Security, now moves pursuant to
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Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff’s complaint on the basis that it was
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untimely filed. [Docket Nos. 16 (“Mot.”); 18.] On June 19, 2019, the court notified the parties that
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it would convert Defendant’s motion to dismiss into a motion for summary judgment on the issue
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of timeliness and ordered Plaintiff to file supplemental evidence and briefing. [Docket No. 19.]
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Plaintiff filed an additional declaration on July 3, 2019. [Docket No. 20 (“Waggoner Decl.”).] For
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the following reasons, Defendant’s motion for summary judgment on the issue of timeliness is
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granted.
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I.
BACKGROUND
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A.
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On July 17, 2014, Plaintiff filed an application for supplemental security income. [Docket
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No. 16-2 at 4.] On November 24, 2017, Administrative Law Judge (“ALJ”) Richard P. Laverdure
Factual Background and Procedural History
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Andrew Saul became Commissioner of the Social Security Administration (“SSA”) on June 17,
2019, replacing Nancy A. Berryhill, Acting Commissioner of SSA.
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issued a decision partially denying Plaintiff’s claim for benefits under Title XVI. Id. Plaintiff then
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requested review of the ALJ’s decision by the Appeals Council of the Social Security
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Administration.
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Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner.
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[Docket No. 16-3 (“Notice”).] The Notice provided information about how Plaintiff could seek
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court review of the decision, including the following:
The Appeals Council issued a decision dated September 21, 2018 denying
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Time to File a Civil Action
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You have 60 days to file a civil action (ask for court review).
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The 60 days start the day after you receive this letter. We assume
you received this letter 5 days after the date on it unless you show
us that you did not receive it within the 5-day period.
United States District Court
Northern District of California
Notice at 2.
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Plaintiff filed this action on November 28, 2018, seeking judicial review of the Appeals
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Council’s decision under 42 U.S.C. § 405(g). Defendant moves for dismissal on the basis that
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Plaintiff did not commence his suit within the 60-day period specified by the Notice and by 42
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U.S.C. § 405(g). According to Defendant, Plaintiff is presumed to have received the Notice on
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September 26, 2018, five days after its issuance, and was therefore required to commence this action
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60 days later, by November 26, 2018. Since Plaintiff did not file suit until two days after the
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deadline, Defendant contends that the action is untimely and should be barred.
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Defendant submitted a declaration and two exhibits as part of his motion. [Docket No. 1620
1 (“Voegele Decl.”).] When a court considers matters outside the pleadings on a motion under Rule
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12(b)(6), it must convert the motion into a Rule 56 motion for summary judgment, and in so doing,
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the court must give “[a]ll parties . . . a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d); see also San Pedro Hotel Co., Inc. v. City of Los
Angeles, 159 F.3d 470, 477 (9th Cir. 1998) (“In providing notice to the parties, ‘a district court need
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only apprise the parties that it will look beyond the pleadings to extrinsic evidence and give them
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an opportunity to supplement the record.’” (citation omitted)). Accordingly, on June 19, 2019, the
court notified the parties that it would convert Defendant’s motion to dismiss into a motion for
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summary judgment. [Docket No. 19.] The court ordered Plaintiff to file supplemental evidence to
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provide evidentiary support for the factual allegations in his opposition, or any other facts supporting
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his position. Id. Plaintiff timely submitted a declaration from his counsel in support of his positions.
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According to Plaintiff’s counsel David Waggoner, Plaintiff was previously represented by
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a different attorney, Alexx Campbell, at Homeless Action Center. Waggoner Decl. ¶ 10. Campbell
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had represented Plaintiff at his hearing before the ALJ, who issued a partially favorable decision.
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Id. ¶ 9; see also Voegele Decl., Ex. 1. Campbell then appealed the decision to the Appeals Council
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on Plaintiff’s behalf. Id. ¶ 10. The Appeals Counsel issued a decision upholding the ALJ’s decision
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on September 21, 2018. Id. ¶ 11; see also Voegele Decl., Ex. 2.
Campbell resigned from his position at HAC on October 2, 2018. Waggoner Decl. ¶ 12. He
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United States District Court
Northern District of California
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sent an email with transfer notes regarding Plaintiff’s case that same day. Id. ¶¶ 12, 14. Waggoner
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was then assigned to Plaintiff’s case. Id. ¶ 13. According to Waggoner, the case transfer notes
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indicated that the next step for Plaintiff’s case was to write the brief requesting review of the ALJ’s
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decision by the Appeals Council. Id. ¶¶ 13-14. Waggoner was traveling internationally at the time
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that Plaintiff’s case was assigned to him. Waggoner Decl. ¶ 15. While traveling, Waggoner worked
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remotely using a laptop, but he did not have access to Plaintiff’s electronic or paper file, and so he
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only had the information about Plaintiff’s case that Campbell sent in the transfer notes email. Id. ¶¶
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15-20. Waggoner returned to his office on November 28, 2018 and at that point reviewed the
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September 21, 2018 Appeals Council’s denial of the appeal that Campbell had filed. Id. ¶ 23.
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Waggoner filed the complaint in this case that same day. Id. ¶ 25.
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Waggoner’s declaration is cryptic with respect to key details. For example, he only vaguely
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explains what information regarding case-related tasks and deadlines was contained in Campbell’s
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case transfer email, and he does not state whether Campbell’s information was correct.2 He also
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does not state what further information he would have learned if he had access to the electronic or
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paper file while he was out of the office. Waggoner’s declaration indicates that he was away from
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the office for approximately two months (between late September and late November 2018).
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For example, Waggoner is not explicit about whether Campbell’s email transfer notes incorrectly
reported that the next step in Plaintiff’s case was to write an Appeals Council brief.
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Although Waggoner states that he was not expecting to receive any time-sensitive mail while he
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was away, he does not explain what arrangements were made, if any, to have another person check
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his files for him during a significant two-month absence to make sure he did not miss any deadlines
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on behalf of his clients.
Waggoner states that he “believes” the September 21, 2018 denial letter from the Appeals
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Council arrived at the HAC office “between the time it was mailed and after Mr. Campbell’s
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[October 2, 2018] resignation.” Waggoner Decl. at ¶ 26. The only support for this assertion is his
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belief that “[i]f Mr. Campbell had received the denial letter before he resigned, he would have
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communicated that fact to me and the corresponding time sensitive nature regarding an appeal.” Id.
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at ¶ 27. Waggoner does not offer anything more concrete to support his belief, such as a copy of
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United States District Court
Northern District of California
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the Appeals Council denial letter with a date-received stamp.
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II.
LEGAL STANDARDS
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A court shall grant summary judgment “if . . . there is no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden
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of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex
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Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the court must view the evidence in the light
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most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
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(citation omitted). A genuine factual issue exists if, in accounting for the burdens of production and
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proof that would be required at trial, sufficient evidence favors the non-movant such that a
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reasonable jury could return a verdict in that party’s favor. Id. at 248. The court may not weigh the
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evidence, assess the credibility of witnesses, or resolve issues of fact. See id. at 249.
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To defeat summary judgment once the moving party has met its burden, the nonmoving
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party may not simply rely on the pleadings, but must produce significant probative evidence, by
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affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that
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a genuine issue of material fact exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
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F.2d 626, 630 (9th Cir. 1987). In other words, there must exist more than “a scintilla of evidence”
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to support the non-moving party’s claims, Anderson, 477 U.S. at 252; conclusory assertions will not
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suffice. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Similarly,
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“[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the
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record, so that no reasonable jury could believe it, a court should not adopt that version of the facts”
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when ruling on the motion. Scott v. Harris, 550 U.S. 372, 380 (2007).
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III.
DISCUSSION
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Defendant moves to dismiss Plaintiff’s complaint as untimely. Plaintiff does not deny that
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his complaint was filed two days late. [Docket No. 17 (“Opp.”) at 2.] Instead, he argues that
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Defendant’s motion should be denied because it is also untimely. Id. at 1. Additionally, he argues
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that the court should apply the doctrine of equitable tolling to excuse the lateness of the complaint.
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Id. at 2. Neither party raises any issues of disputed material facts; therefore, this motion is properly
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decided on summary judgment.
Defendant’s Untimely Motion
United States District Court
Northern District of California
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A.
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Plaintiff contends that Defendant’s motion to dismiss is invalid because it was three days
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late. Opp. at 1. According to the Scheduling Order, Defendant’s responsive pleading is due within
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90 days of receipt of service of the summons and complaint. [Docket No. 6.] The parties agree that
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Defendant’s responsive pleading was due April 15, 2019. Opp. at 1; Reply at 2. However,
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Defendant did not file his motion until April 18, 2019. Defendant’s counsel Christine Voegele
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argues that the delay is not fatal to the motion. Reply at 2. She represents that the reason for the
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untimeliness of Defendant’s reply is that she mis-calendared the answer deadline as April 18, 2019.
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Docket No. 12 contains two proofs of service (“POS”). The POS filing and accompanying
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ECF text entry inject some confusion into determination of the operable deadlines. The POS on the
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first page records that Plaintiff served the Commissioner on January 18, 2019. [Docket No. 12 at
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1.] The POS on the following page shows that the U.S. Attorney’s Office was served on January
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15, 2019. [Docket No. 12 at 2.] Since service on the U.S. Attorney’s Office is effective service on
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the Commissioner, Defendant’s deadline to answer the complaint is calculated based on the earlier
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date of January 15, 2019. However, the ECF text accompanying the POS docket entry states that
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service took place on January 18, 2019 and lists Defendant’s responsive pleading deadline as April
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18, 2019. If service had occurred on January 18, 2019, as indicated by the first POS and the ECF
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text, then Defendant’s motion would have been timely because the filing deadline would have been
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due April 18, 2019. Voegele states that she calendared the deadline based on the date on the first
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POS and argues that this was a reasonable and unintentional mistake. Mot. at 2.
Refusal to consider the Defendant’s response to the complaint would amount to allowing
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Plaintiff to seek default judgment against the government; therefore, cases addressing the standard
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for default judgment under Rule 55 are applicable here. See Dotson v. Chater, No. 96-cv-0689-
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MHP, 1998 WL 164945, at *2 (N.D. Cal. Mar. 2, 1998) (finding that Rule 55 “provide[s] guidance”
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in determining the correct approach to late-filed responses to a complaint). The Ninth Circuit
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recognizes the strong public policy of resolving cases on their merits. Eitel v. McCool, 782 F.2d
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1470, 1472 (9th Cir. 1986) (“Cases should be decided upon their merits whenever reasonably
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possible.”). Further, the standard for entering default judgment against the United States is higher
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United States District Court
Northern District of California
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than that for non-governmental defendants. Rule 55(e) states that a default judgment “may be
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entered against the United States . . . only if the claimant establishes a claim or right to relief by
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evidence that satisfies the court.” Fed. R. Civ. P. 55(e). The language of Rule 55(e) “is more
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restrictive than the standard for default entitlement against non-United States defendants.” Ross v.
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United States, 574 F. Supp. 536, 538 (S.D.N.Y. 1983) (discussing Rule 55(e)); see also Greenbaum
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v. United States, 360 F. Supp. 784, 789 (E.D. Pa. 1973) (“A court may not enter a default judgment
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against the Government merely for failure to file a timely response.”).
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Here, Defendant filed his responsive pleading three days late based on an inadvertent
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mistake that was due to an admittedly confusing filing of multiple POS plus an incorrect text entry
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on ECF. Plaintiff does not cite any caselaw in support of his position that the court should not
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consider Defendant’s motion to dismiss under these circumstances, and such a result would cut
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against the weight of the authority. Therefore, the court will consider Defendant’s motion to dismiss
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on the merits.
Plaintiff’s Untimely Complaint
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B.
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Claimants appealing from adverse decisions by the Commissioner or Social Security “may
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obtain a review of such decision by a civil action commenced within sixty days after the mailing to
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him of notice of such decision.” 42 U.S.C. § 405(g).3 If a claimant does not file a civil action within
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the prescribed 60-day time frame, he or she loses the right to judicial review. 20 C.F.R. §
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404.900(b). Defendant moves to dismiss Plaintiff’s complaint with prejudice on the basis that it is
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untimely under section 405(g). The parties do not dispute that Plaintiff’s complaint was filed two
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days late. Mot. at 2; Opp. at 1.
As examined above, the issue of timeliness with respect to Defendant’s motion is governed
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by Rule 55 and interpreting caselaw. The timeliness of Plaintiff’s complaint, however, is governed
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by section 405(g) of the Social Security Act. Generally, the United States cannot be sued by private
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individuals unless Congress has specifically permitted such actions through legislation. Block v. N.
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Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983) (“The basic rule of federal
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United States District Court
Northern District of California
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sovereign immunity is that the United States cannot be sued at all without the consent of
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Congress.”). The Social Security Act is legislation by which Congress has authorized private suits
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against the United States. See Bowen v. City of New York, 476 U.S. 467, 479-80 (1986). However,
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Congress may “attach[] conditions to legislation waiving the sovereign immunity of the United
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States.” Block, 461 U.S. at 287. Any such conditions imposed by Congress must be “strictly
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observed.” Id.; see also Bowen, 476 U.S. at 479. The Supreme Court has interpreted section 405(g)
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to impose a condition of Congress (namely, the 60-day statute of limitations), Bowen, 476 U.S. at
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479, and so exceptions to the timing requirement of this section “are not to be lightly implied.”
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Block, 461 U.S. at 287. Therefore, the late-filing of Social Security complaints is scrutinized under
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a different standard than the late-filing of briefs during an action that has already commenced. Since
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the former standard is more demanding, it may sometimes be the case that (as here) the court will
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accept a late-filed brief but not a late-filed complaint.
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Courts have dismissed cases filed only days after the expiration of the statute of limitations.
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See, e.g., Tate v. United States, 437 F.2d 88, 89 (9th Cir. 1971) (affirming dismissal of Social
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Although § 405(g) uses the word “mailing,” a regulation provides that a civil action “must be
instituted within 60 days after the Appeals Council’s notice . . . is received by the individual” and
that “the date of receipt . . . shall be presumed to be 5 days after the date of such notice, unless there
is a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c).
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Security complaint filed two days late); Fletcher v. Apfel, 210 F.3d 510 (5th Cir. 2000) (affirming
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summary judgment in favor of Commissioner because the complaint was filed one day late);
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Atherton v. Colvin, 2014 WL 580167 at *4 (C.D. Cal. Feb. 12, 2014) (dismissing complaint filed
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four days late).
However, “[i]n certain rare instances, the sixty day statute of limitations can be excused”
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through the doctrine of equitable tolling. Diaz v. Comm’r of Soc. Sec., No. 13-cv-05027-PSG, 2014
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WL 1348896, at *3 (N.D. Cal. Apr. 4, 2014). Federal courts “have typically extended equitable
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relief only sparingly,” such as “where the claimant has actively pursued his judicial remedies by
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filing a defective pleading during the statutory period, or where the complainant has been induced
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or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t
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United States District Court
Northern District of California
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of Veterans Affairs, 498 U.S. 89, 96 (1990). In Bowen, for example, the Supreme Court applied
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equitable tolling because the “Government’s secretive conduct prevents plaintiffs from knowing of
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a violation of rights . . . .” Bowen, 476 U.S. at 481. Similarly, the Ninth Circuit determined that a
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claimant may have a “factual basis for . . . equitable tolling” where an employee for the Social
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Security Administration inadvertently misled the claimant as to the process for seeking an extension.
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See generally Vernon v. Heckler, 811 F.2d 1274 (9th Cir. 1987). The Eighth Circuit has observed
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that “equitable circumstances that might toll a limitations period involve conduct (by someone other
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than the claimant) that is misleading or fraudulent.” Turner v. Bowen, 862 F.2d 708, 710 (8th Cir.
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1988); see also Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988) (“Equitable tolling thus far has
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been allowed only in those cases where the government has hindered a claimant’s attempts to
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exercise her rights by acting in a misleading or clandestine way.”).
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By contrast, courts generally do not grant the equitable tolling of limitations periods where
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the claimant failed to exercise due diligence in preserving his legal rights. Irwin, 498 U.S. at 96
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(“We have generally been much less forgiving in receiving late filings where the claimant failed to
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exercise due diligence in preserving his legal rights.”); see also Okafor v. United States, 846 F.3d
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337, 340 (9th Cir. 2017) (“We do not recognize run-of-the mill mistakes as grounds for equitable
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tolling because doing so would essentially equitably toll limitations periods for every person whose
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attorney missed a deadline.”) (quoting Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015)) (internal
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quotation marks and further citations omitted).
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Here, Plaintiff’s counsel asserts that the complaint was filed late because the case was
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transferred to him after the prior attorney resigned, and that this occurred while he was out of the
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country on an extended two-month trip during which he did not have access to Plaintiff’s electronic
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or paper file or to mail received in the case. It appears that no one else checked Waggoner’s mail
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or files during his two-month absence or notified him of the time-sensitive nature of the Appeals
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Council mailing.
These facts are not sufficient to meet the high standard for equitable tolling. Plaintiff’s
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counsel offers little more than conjecture that the Appeals Council denial letter took significantly
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longer than the five-day presumptive receipt period set forth in the letter. He appears to admit that
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United States District Court
Northern District of California
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no one checked his mail or his files during his two-month absence, which is an exceptionally long
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period for a lawyer to leave his or her files unattended. The Ninth Circuit “ha[s] not applied
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equitable tolling in non-capital cases where attorney negligence has caused the filing of a petition
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to be untimely.” Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003), as amended (Nov. 3, 2003).
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In the Social Security context, courts in this circuit have held that “mere attorney negligence is not
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an extraordinary circumstance warranting equitable tolling absent a showing of bad faith,
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dishonesty, divided loyalty, or impairment on the part of the attorney.” Carty v. Berryhill, No. 17-
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cv-01212-JCS, 2017 WL 5525827, at *7 (N.D. Cal. Nov. 17, 2017) (quoting Holland v. Florida,
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560 U.S. 631, 655 (2010)) (internal quotation marks omitted); Kindschy v. Berryhill, No. 17-cv-
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00445-CWD, 2018 WL 1583135, at *4 (D. Idaho Mar. 30, 2018) (dismissing Social Security appeal
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as untimely because attorney’s “lack of diligence” was not an “extraordinary circumstance[] to
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justify tolling the 60-day statute of limitations”).
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In sum, the facts of this case do not meet the high standard for showing the “extraordinary
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circumstances” required to receive the benefit of equitable tolling. The court therefore holds that
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equitable tolling does not apply in this matter. Accordingly, Defendant’s motion for summary
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judgment is granted.
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IV.
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CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment on the issue of
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timeliness is granted. The case is dismissed with prejudice. The Clerk shall enter judgment for
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Defendant and against Plaintiff and close the file in this matter.
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United States District Court
Northern District of California
R NIA
______________________________________
Ryu
Donna onna M.
M. Ryu
Judge D
United States Magistrate Judge
RT
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Dated: October 9, 2019
DERED
O OR
IT IS S
NO
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IT IS SO ORDERED.
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