Gonzales v. Social Security Administration, Commissioner of

Filing 16

ORDER Dismissing Appeal for Lack of Jurisdiction: 11 Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) GRANTED. By Judge Robert E. Blackburn on 7/12/2018. (lrobe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 18-cv-00437-REB
DEVIN ROSS GONZALES,
Plaintiff,
v.
NANCY BERRYHILL, Deputy Commissioner for Operations, performing the duties and
functions not reserved to the Commissioner of Social Security,[1]
Defendant.

ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
Blackburn, J.
The matter before me is Defendant’s Motion To Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b)(6) [#11],1 filed May 22, 2018. Plaintiff has submitted a
response to the motion ([#12], filed June 4, 2018), and the Deputy Commissioner has
filed a reply ([#15], filed June 29, 2018). Having reviewed the motion, response, and
reply and having considered the apposite arguments and authorities, I find and
conclude that plaintiff failed to file his appeal in the time and manner prescribed by law,
and therefore his claims must be dismissed as barred by limitations.
The law is clear: “[a]bsent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” Federal Deposit Insurance Corp. v. Meyer,
510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). Where the

1

“[#11]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

government has consented to be sued, the terms of its consent define the boundaries of
the court’s jurisdiction. Id., 114 S.Ct. at 1000. See also United States v. Mitchell, 463
U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the
United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.”).
As applied in this context, that proscription means that any suit seeking review of
a final decision of the Deputy Commissioner must be commenced within sixty days after
the receipt of notice of the right to appeal. See 42 U.S.C. §§ 405(g) & 405(h). Although
this bar operates as a statute of limitations rather than a jurisdictional bar, because it is
a condition on the government’s waiver of sovereign immunity, it nevertheless must be
strictly construed. Bowen v. City of New York, 476 U.S. 467, 478-79, 106 S.Ct. 2022,
2029-30, 90 L.Ed.2d 462 (1986); Gossett v. Barnhart, 139 Fed. Appx. 24, 25 n.1 (10th
Cir. May 19, 2005), cert. denied, 126 S.Ct. 453 (2005); Miles v. Colvin, 2014 WL
2533814 at *1 (W.D. Okla. June 5, 2014).
On August 1, 2017, an Administrative Law Judge (“ALJ”) issued a decision
denying plaintiff’s application for disability insurance benefits under Title II of the Social
Security Act. (Def. Motion App., Podraza Decl. ¶ (3)(a) at 3 & Exh. 1.) Plaintiff
requested review of this decision by the Appeals Council. On November 22, 2017, the
Appeals Council mailed notice to plaintiff of its denial of his request for review and
advised him of his right to commence a civil action “in the United States District Court
for the judicial district in which you live” within 60 days of receipt of the notice. (Id.,
Cousins Decl. ¶ (3)(b) at 3 & Exh. 6.) Plaintiff maintains he did not receive the notice of

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denial until December 5, 2017, nearly two weeks past the date it was mailed, based on
the receipt stamp his counsel affixed to the notice. For purposes of this motion only, the
Deputy Commissioner has agreed to assume the 60-day deadline runs from this later
date. Cf. 20 C.F.R. § 404.901 (presumption that notice received five days after
mailing). See also Gossett, 139 Fed. Appx. at 26. Accordingly, the deadline for filing
the instant action was February 5, 2018.2 Because this action was not commenced until
February 21, 2018, plaintiff’s appeal is untimely.
Nevertheless, the court retains discretion to equitably toll the statute of limitations
in appropriate circumstances. See United States v. Clymore, 245 F.3d 1195, 1198
(10th Cir. 2001). Plaintiff claims to be entitled to equitable tolling because his counsel
filed a motion for extension of time to file an appeal with the Appeals Council within the
deadline, which was not ultimately denied until April 21. (Def. Motion App., Podraza
Decl. ¶ (3)(b) at 3 & Exhs. 3 & 4.) On the facts of this case, however, this circumstance
provides no justifiable ground for tolling limitations.
“Federal courts have typically extended equitable relief only sparingly.” Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457, 112 L.Ed.2d
435 (1990). “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130
S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (citation and internal quotation marks
omitted). The second prong of this test requires plaintiff to show the circumstances that
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Because the 60th day (February 3) fell on a Saturday, the appeal was not due to be filed until the
next business day, i.e., February 5.

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caused the delay were “both extraordinary and beyond his control.” Menominee Indian
Tribe of Wisconsin v. United States, – U.S. –, 136 S.Ct. 750, 756, 193 L.Ed.2d 652
(2016) (emphasis in original). Equitable tolling is not appropriate unless both these
elements are satisfied. Id.
Plaintiff has failed to meet his burden of proof as to either of these prongs of the
apposite test. Although the extension plaintiff requested from the Appeals Council
sought until February 19 in which to file this appeal (See Def. Motion App., Podraza
Decl., Exh. 3), he inexplicably waited until February 21 to submit his complaint. Thus
even if his extension had been granted, his appeal was untimely.3 Moreover, counsel
for plaintiff presents neither argument nor evidence to suggest he contacted the
Appeals Council or otherwise tried to apprise himself of the status of his request for
extension at any time prior to the expiration of his own self-imposed deadline.4 Such

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That the delay was late by but a single day (February 19 being a federal holiday) is irrelevant:
The notion that a filing deadline can be complied with by filing sometime
after the deadline falls due is, to say the least, a surprising notion, and it
is a notion without limiting principle. If 1-day late filings are acceptable,
10-day late filings might be equally acceptable, and so on in a cascade of
exceptions that would engulf the rule erected by the filing deadline. Filing
deadlines, like statutes of limitations, necessarily operate harshly and
arbitrarily with respect to individuals who fall just on the other side of
them, but if the concept of a filing deadline is to have any content, the
deadline must be enforced.

United States v. Locke, 471 U.S. 84, 100-01, 105 S.Ct. 1785, 1796, 85 L.Ed.2d 64 (1985). See also
Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir. 2002) (while “[a]t the margins, all statutes of
limitations and filing deadlines appear arbitrary,” adjusting deadlines on an ad hoc basis “reduce[s]
predictability and would prevent us from treating the similarly situated equally”), cert. denied, 123 S.Ct.
878 (2003).
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Counsel for plaintiff claims he had a reasonable expectation that the extension would be
granted based on his own past experience. However, in the absence of evidence that the Deputy
Commissioner actively deceived or misled counsel as to its intention to grant or deny his request,
counsel’s hope, reasonable or not, is irrelevant. See Irwin, 111 S.Ct. at 458; United States v. Clymore,
245 F.3d 1195, 1199 (10th Cir. 2001).

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circumstances do not evidence a party diligently pursuing his rights.
Moreover, and regardless of plaintiff’s diligence, vel non, he has not shown some
extraordinary circumstance beyond his control prevented the timely filing of this appeal.
In his motion to the Appeals Council, counsel for plaintiff represented he required an
extension of time because, “[i]n addition to the holidays, the undersigned counsel has
been scheduled to appear in approximately 90 hearings in a number of cities.” (Def.
Motion App., Podraza Decl., Exh. 3.) These circumstances, while perhaps
understandable, are not in the least extraordinary.5 Lookingbill v. Cockrell, 293 F.3d
256, 264 (5th Cir. 2002) (“[A]s the district court pointed out, ‘operating under time
constraints on federal cases [is] not unusual.’ Thus, we decline to apply equitable
tolling just because a lawyer is busy.”), cert. denied, 123 S.Ct. 878 (2003); Falls v.
Novartis Pharmaceuticals Corp., 2014 WL 3810246 at *4 (D. Conn. Aug. 1, 2014)
(“‘[T]he ability of Plaintiff's counsel to manage his caseload is not a sufficient reason to
disregard the Federal Rules of Civil Procedure.’”) (quoting McGuinnes v. Novartis
Pharmaceuticals Corp., 289 F.R.D. 360, 363 (M.D. Fla. 2013)); Bower v. Walsh, 703
F.Supp.2d 204, 220 (E.D.N.Y. 2010) (“[T]he statute of limitations cannot be individually
tailored to an attorney's workload in a given case through the doctrine of equitable
tolling.”); Middleton v. Gould, 952 F.Supp. 435, 440 (S.D. Tex. 1996) (an “unusually
hectic work schedule did not excuse” plaintiff, an attorney, from checking his mail for

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For this same reason, I reject plaintiff’s suggestion that the Appeals Council’s denial of his
motion for extension of time to appeal was arbitrary and capricious. The regulations require a movant to
demonstrate good cause for the requested extension. 20 C.F.R. § 404.982. Nothing in the regulatory
definition of “good cause” suggests a heavy workload satisfies the standard. See 20 C.F.R. § 404.911(b)
(listing circumstances which may constitute good cause, including serious illness of the claimant or
someone in his immediate family, accidental destruction of important records, provision of incorrect or
incomplete information by the agency, or other similar “[u]nusual or unavoidable circumstances”).

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notice of final agency decision). Most, if not all, attorneys have busy schedules. Were
an attorney’s heavy caseload found to justify equitable tolling, the limitation would be
rendered essentially meaningless.
I thus find and conclude it would be inappropriate to exercise my discretion to
equitably toll limitations in this instance. Dismissal thus is required.
THEREFORE IT IS ORDERED as follows:
1. That Defendant’s Motion To Dismiss Pursuant to Federal Rules of Civil
Procedure 12(b)(6) [#11], filed May 22, 2018, is granted; and
2. That this appeal is dismissed for lack of jurisdiction.
Dated July 12, 2018, at Denver, Colorado.
BY THE COURT:

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