White v. Colvin

Filing 11

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 12/11/2015. (cna)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

WILLIAM W. WHITE,

)
)
Plaintiff,
)
)
v.
) Civ. No. 15-019-SLR
)
CAROLYN W. COLVIN,
)

ACTING COMMISSIONER OF SOCIAL)

SECURITY,
)

)

Defendant.
)

William W. White, Wilmington, Delaware. Pro Se Plaintiff.
Charles M. Oberly, III, Esquire, United States Attorney for the District of Delaware and
Heather Benderson, Esquire, Special Assistant United States Attorney of the Social
Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant. Of
Counsel: Nora Koch, Esquire, Acting Regional Chief Counsel, Region III, of the Social
Security Administration, Philadelphia, Pennsylvania.

MEMORANDUM OPINION

Dated: December 11 ,2015
Wilmington, Delaware

R~O~Udge

I. INTRODUCTION
Plaintiff William W. White ("plaintiff'), who proceeds pro se and has been granted
leave to proceed in forma pauperis, seeks judicial review of a decision of the Social
Security Administration pursuant to 42 U.S.C. § 405(g). Presently before the court is a
motion to dismiss filed by defendant Carolyn Colvin ("defendant"), Acting Commissioner
of Social Security. (D.1. 9) Plaintiff filed a request for entry of default' and stands on the
request in opposition to the motion to dismiss. (D.1. 8, 10).

II. BACKGROUND
On January 6, 2015, plaintiff filed this action seeking review of an adverse
decision by defendant pursuant to 42 U.S.C. § 405(g).2 (D.1. 2) Plaintiff filed
applications for Social Security disability benefits ("DIB") and supplemental security
income ("SSI") on August 22, 2011. (D.1. 9 Hartt decl., ex. 1) The applications were
denied initially and upon reconsideration. (ld.) On March 14, 2012, plaintiff filed a
request for a hearing, the hearing was held on September 4, 2013 and, on September
10,2013, the Administrative Law Judge issued a decision denying plaintiffs applications
for DIB and SSI. (ld.) Plaintiff sought a request for review of the September 10, 2013
decision. (Id. at ex. 2)
The Appeals Council notified plaintiff of the denial of his request for review by a
letter dated and mailed October 29,2014. (ld. at Hartt Decl. ex. 2) The denial letter

lAs will be discussed, the complaint was not timely filed and, therefore, the court
will deny the request for entry of default.
2The complaint is dated January 5, 2015, but was not received in the Clerk's
Office and filed until January 6, 2015.

was mailed to plaintiff at 1121 West 7th Street, Wilmington, Delaware 19805, and it
advised plaintiff of his right to file a civil action within 60 days from the date of receipt of
the notice. (ld.) The denial letter further advised plaintiff that, "[t]he 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." Ud. at
ex. 2) Defendant moves for dismissal on the grounds that the instant complaint was not
filed within the 60-day time-frame. 3

III. STANDARD OF REVIEW
A statute of limitations defense may be raised in a Rule 12(b)(6) motion, "[when]
'the time alleged in the statement of a claim shows that the cause of action has not
been broug ht within the statute of limitations. '" Robinson v. Johnson, 313 F. 3d 128, 135
(3d Cir. 2002). Under Rule 12(b)(6), a motion to dismiss may be granted only if,
accepting the well-pleaded allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that those allegations "could not
raise a claim of entitlement to relief." Bell At!. Corp. v. Twombly, 550 U.S. 544, 558
(2007).
"In deciding motions to dismiss pursuant to Rule 12{b)(6), courts generally
consider only the allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim." Lum

V.

Bank of

3Defendant does not indicate under which rule of Federal Civil Procedure she
proceeds for dismissal. The court presumes defendant seeks dismissal pursuant to
Fed. R. Civ. P. 12(b)(6). See Raffinee V. Commissioner of Soc. Sec., 367 F. App'x 379,
380 (3d Cir. 2010) (unpublished) (affirming dismissal of social security appeal as time­
barred pursuant to Rule 12(b)(6).

2

Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). In addition, "documents whose contents are

alleged in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered." Pryor v. National Collegiate
Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v.
Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("[a]lthough a district court may not consider
matters extraneous to the pleadings, a document integral to or explicitly relied upon in
. the complaint may be considered without converting the motion to dismiss in one for
summary judgment.").4

IV. DISCUSSION
Section 405(g) provides that an "individual, after any final decision of the
Commissioner of Social Security made after a hearing ... may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of notice
of such decision or within such further time as the Commissioner of Social Security may
allow." 42 U.S.C. § 405(g). This provision constitutes a statute of limitations. See
Bowen v. City of New York, 476 U.S. 467, 478 (1986). When Congress attaches
conditions to legislation waiving the sovereign immunity of the United States (as in
Social Security review cases), those conditions must be strictly observed, and
exceptions thereto are not to be lightly implied. See Block v. Norlh Dakota, 461 U.S.
273, 287 (1983).

4The court does not consider the declaration of Kathie Hartt, but does consider
the following exhibits attached to it: September 10,2013 notice of decision unfavorable;
September 10, 2013 decision; and October 29,2014 notice of Appeals Council action.

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The limitation period prescribed by § 405(g), however, is subject to equitable
tolling. U[A]pplication of a 'traditional equitable tolling principle' to the 60-day
requirement of § 405(g) is fully 'consistent with the overall congressional purpose' and is
'nowhere eschewed by Congress.'" Bowen, 476 U.S. at 480. Equitable tolling is "to be
applied sparingly," Kramerv. Commissioner of Soc. Sec., 461 F. App'x 167,169 (3d
Cir. 2012) (unpublished), and "may be appropriate only: ""(1) where the defendant has
actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the
plaintiff in some extraordinary way has been prevented from asserting his or her rights;
or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong
forum.'" Cardyn v. Commissioner of Soc. Sec., 66 F. App'x 394,397 (3d Cir. 2003)
(quoting Oshiver V. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir
.1994). A "plaintiff bears the burden of establishing that equitable tolling applies.
Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997).
The notice of Appeals Council action was mailed to plaintiff on October 29, 2014.
Applying the five-day presumption, plaintiff was presumed to have received the letter on
November 3,2014, five days after October 29,2014. Plaintiff then had 60 days to file
the instant action, up to and including January 2, 2015. See Fed. R. Civ. P. 6(a)(1) (in
computing time for filing, when the period is stated in days or a longer unit of time
exclude the day of the event that triggers the period, count every day, including
intermediate Saturdays, Sundays, and legal holidays, and include the last day of the
period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to
run until the end of the next day that is not a Saturday, Sunday, or legal holiday).

4

Because the Clerk's Office was closed on January 2, 2015 due to the New Year's
holiday, plaintiff had until the end of Monday, January 5,2015 to file this action.s See
Fed. R. Civ. P. 6(a)(1); see a/so Fed. R. Civ. P. 6(a)(3) (unless the court orders
otherwise, if the clerk's office is inaccessible on the last day for filing under Rule 6(a)(1),
then the time for filing is extended to the first accessible day that is not a Saturday,
Sunday, or legal holiday). Plaintiff, however, did not file this action on Monday, January
5, 2015, the first accessible for filing, but waited until Tuesday, January 6, 2015, one
day after the expiration of the limitations period, to commence this action.
The action is time-barred. In addition, plaintiff failed to present any facts to justify
equitable tolling of the limitations period or provide a reason for the late filing. See e.g.,
Cardyn v. Commissioner of Soc. Sec., 66 F. App'x 394,397 (3d Cir. 2003). Instead,

plaintiff seeks entry of default. Plaintiff bears the burden of establishing that equitable
tolling applies and has failed to meet his burden. The complaint was not timely filed.
Therefore, the court will grant the motion to dismiss.

V. CONCLUSION
For the reasons discussed above, the court will deny plaintiff's request for entry
of default (0.1. 8) and will grant defendant's motion to dismiss. (D.1. 9) An appropriate
order will be entered.

SSee http://www.ded.uscourts.gov/court-info/court-holidays (Dec. 3, 2015)
(indicating Friday, January 2 day after New Year's Day as a 2015 court holiday).

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