HARDESTY v. COLVIN

Filing 22

ORDER denying Defendant's 7 Motion to Dismiss (see Order for details). Signed by Magistrate Judge Tim A. Baker on 5/28/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JAMES M. HARDESTY,
Plaintiff,
vs.
CAROLYN W. COLVIN Commissioner of
Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 1:14-cv-01398-TAB-TWP

ORDER ON DEFENDANT’S MOTION TO DISMISS,
OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
I. Introduction
Pending before the Court is Defendant Commissioner of Social Security Carolyn W.
Colvin’s motion to dismiss or, in the alternative, motion for summary judgment. Defendant
seeks to dismiss Plaintiff James M. Hardesty’s cause of action as untimely. Hardesty objects,
relying on the doctrine of equitable tolling. Two days after Defendant filed her reply, the
Supreme Court issued its decision in U.S. v. Wong, 135 S.Ct. 1625 (2015), discussing equitable
tolling in the Federal Tort Claims Act. This Court subsequently ordered supplemental briefing to
address what impact, if any, Wong had on equitable tolling in this case. [Filing No. 17.] For the
reasons set forth below, Defendant’s motion to dismiss [Filing No. 7] is denied.
II. Discussion
Under the relevant statute, a Social Security claimant may appeal to federal court the
Commissioner’s final decision within sixty days of receiving notice of the final decision or
within an amount of time permitted by the Commissioner. 42 U.S.C. § 405(g). The Social

Security Appeals Council may extend the amount of time a claimant has to commence this
appeal if there is good cause for the delay. 20 C.F.R. § 422.10. Good cause includes, among
other things, failure to receive notice of the determination or decision. 20 C.F.R. § 404.911(b).
On September 24, 2013, the Social Security Appeals Council denied Hardesty’s request
for review of the Administrative Law Judge’s decision. In doing so, the ALJ’s decision became
the final determination by the Commissioner. Under the relevant statute, Hardesty had until
November 29, 2013, to commence a civil action seeking review of the Commissioner’s final
decision. However, Hardesty did not file his action until August, 25, 2014, almost a year after
the sixty-day deadline expired. Consequently, the Commissioner contends that dismissal is
appropriate.
Hardesty submits that, because he had no notice of the final determination, good cause
exists for his untimely filing in federal court. According to Hardesty’s affidavit and related
exhibits, he did not receive notice from the Commissioner of the September 24, 2013, final
decision until June 26, 2014. [Filing Nos. 14-1; 14-2; 14-3; 14-4.] On August 25, 2014, within
sixty days of receiving notice, Hardesty filed his civil action. Given the delay in notice,
Hardesty argues that the Social Security’s sixty-day statute of limitations should be equitably
tolled until June 26, 2014.
While the Commissioner concedes that Bowen v. City of New York, 476 U.S. 467, 480
(1986), found equitable tolling to be appropriate in Social Security appeals, the Commissioner
asserts that this principle should not be used for Hardesty’s appeal. For one, the Commissioner
argues that equitable tolling is a mechanism that is rarely used in Social Security cases.1

1

In support of this argument, the Commissioner cites to Irwin v. Dep’t of Veteran Affairs, 498
U.S. 89, 96 (1990). However, U.S. v. Wong, 135 S.Ct. 1625 (2015), expanded the ruling set
2

Moreover, the Social Security regulations have a separate procedure for allowing claimants with
good cause to file delayed appeals, making it unnecessary for the Court to use the equitable
tolling principle. Instead, the Commissioner asserts that Hardesty’s case should be dismissed so
that Hardesty may request an extension of time from the Appeals Council to file his action in
federal court. The Commissioner submits that this alternative to equitable tolling would preserve
the Social Security Administration’s existing procedure for bringing appeals against the
Commissioner and would discourage other claimants from circumventing the readily available
Social Security procedures readily available for seeking an extension. The Commissioner admits
that if this case were dismissed, the Appeals Council would likely find good cause for Hardesty’s
delay and would grant him an extension of time.
Relying on U.S. v. Wong, Hardesty argues that the Social Security Administration’s
existing procedure for extending the deadline for filing a civil action does not bar the Court from
using equitable tolling. In other words, Hardesty argues that the Court can (and should) use
equitable tolling, even though the Commissioner contends that doing so would circumvent the
agency’s statutory process for filing an appeal. The Commissioner argues that Wong is not
directly applicable because it exclusively discussed the applicability of equitable tolling under
the Federal Tort Claims Act. This argument, however, oversimplifies the case’s application.
While Wong is factually distinguishable, the case nevertheless chips away at the Commissioner’s
motion to dismiss.
Wong held that a court’s power to use equitable tolling in cases against the Government
may only be cabined if the relevant statute contains language expressly barring the court’s

forth in Irwin such that equitable tolling is now a presumption that requires “something special”
from Congress to rebut. Wong, 135 S.Ct. at 1630-32.
3

jurisdiction. Wong, 135 S.Ct. at 1631-32. As the Commissioner acknowledges, there is no such
language contained in Social Security statute 42 U.S.C. § 405 or in its related regulations. See
20 C.F.R. § 422.10; see also 20 C.F.R. §§ 404.901, 404.981, 416.1401, 416.1481. Thus, the
Court is not barred from considering the merits of Hardesty’s case merely because the Social
Security Administration has its own process for extending the time to file a federal cause of
action.
The Commissioner requests that the Court decline to use its power to equitably toll the
statute to maintain the integrity of the Social Security agency’s appeals process. However, this
process serves no utility in this case. The Commissioner has already acknowledged that good
cause exists for Hardesty’s untimely filing, and dismissing this case back to the agency would
only delay Hardesty’s day in court. Moreover, the Court rejects the Commissioner’s argument
that using equitable tolling in this case will encourage other claimants to bypass the agency’s
appeals process. Claimants would rather have their cases favorably resolved by the Social
Security Administration than have to pursue an appeal to federal court, which necessarily
prolongs the review process.
III. Conclusion
For these reasons, the Court finds equitable tolling appropriately saves Hardesty’s
otherwise untimely appeal. Therefore, the Commissioner’s motion to dismiss [Filing No. 7] is
denied.
Dated: 5/28/2015

4

Distribution:
C. David Little
POWER LITTLE & LITTLE
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

5