Taylor v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER - It is ordered that this case is dismissed for lack of subject matter jurisdiction. Signed by District Judge John W. Lungstrum on 04/29/2015.Mailed to pro se party Michael B. Taylor by regular mail (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL B. TAYLOR,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 15-4856-JWL

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s pro se1 Motion for Leave to File out of
Time (Doc. 4), and on the Commissioner of Social Security’s (hereinafter Commissioner)
Motion to Dismiss. (Doc. 10) (hereinafter Mot. to Dismiss). On March 3, 2015, Plaintiff
filed a Complaint seeking judicial review of a decision of the Commissioner of Social
Security denying Supplemental Security Income (SSI) benefits. (Doc. 1). At the same
time, Plaintiff filled his Motion for Leave to File out of Time (Doc. 4), seeking the court’s
permission to file this case beyond the sixty-day statutory limitation period provided by
42 U.S.C. § 405(g) and referenced in the notice provided to Plaintiff by the Appeals
1

Because Plaintiff proceeds pro se before this court, the court construes his
pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Travis v. Park City
Mun. Corp., 565 F.3d 1252, 1254 (10th Cir. 2009). But, the court will not assume the
role of advocate for Plaintiff. Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).

Council. (Doc. 13) (Attach. Z-1). The court sought input from the Commissioner, and
issued an order requiring her to respond to the motion by stating no objection to the
motion to file out of time or by showing cause by April 3, 2015 why Plaintiff’s motion
should not be granted as unopposed. (Doc. 7). Thereafter, summons was executed on
March 25, 2015 (Doc. 9), and on April 3, 2015 the Commissioner appeared in this case
and responded to the Court’s Order to Show Cause through counsel’s filing of the Motion
to Dismiss at issue here. (Mot. to Dismiss n.1).
Plaintiff argues that on December 15, 2014, and within the sixty-day statutory
limitations period (which by his reckoning ended December 24, 2014), he sent a request
to the Office of Disability Adjudication and Review seeking an additional thirty days’
time to hire an attorney and to file an action in the Federal District Court. He argues that
he had not received any response to his request when he finally filed his Complaint pro
se, and that because he did not receive notice from the Commissioner that his request for
additional time had been denied, the “legal default position” allows this court to grant the
motion to file out of time. The Commissioner argues that this case should be dismissed
because the court is without subject matter jurisdiction. This is so, in her view, because
Plaintiff filed the case outside the statutory limitations period (which by her reckoning
ended December 22, 2014), the Commissioner has not waived that error, the Social
Security Administration’s (SSA) record contains no evidence that Plaintiff requested an
extension of time from the Commissioner, and there are no circumstances present in this
case which justify equitable tolling of the limitations period. In response to the
2

Commissioner’s motion, Plaintiff argues that he in fact requested a “60 Day Extension Of
Time in writing,” that because he is not an attorney the request is sufficient to satisfy the
requirements to continue this suit, that he is without fault in filing out of time, and that he
“must be allowed his right to Federal Case Review.” (Doc. 13).
The court’s jurisdiction to decide a suit against the SSA is delimited by the Social
Security Act. Weinberger v. Salfi, 422 U.S. 749, 757-64 (1975). Section 405(h) of

the Social Security Act provides that “[n]o action against the United States, the
Commissioner of Social Security, or any officer or employee thereof shall be
brought under section 1331 or 1346 of Title 28 to recover on any claim arising
under this subchapter.” Cordoba v. Massanari, 256 F.3d 1044, 1047 (10th Cir.
2001) (quoting 42 U.S.C. § 405(h)). The United States Supreme Court has
interpreted the “arising under” language of section 405(h) to include claims that
also arise under the Constitution where the claimant seeks to recover Social
Security benefits because “it is the Social Security Act which provides both the
standing and the substantive basis for the presentation of [the claimant’s]
constitutional contentions.” Weinberger, 422 U.S. at 760–61.
Weinberger, then, instructs that section 405(h) is the exclusive basis for
subject matter jurisdiction over plaintiff's complaint. Section 405(h) precludes
review of decisions of the Commissioner save as provided in the Act, which

3

provision is made in section 405(g). See Weinberger, 422 U.S. at 757. Section
405(g), in turn, provides in relevant part that “[a]ny individual, after any final
decision of the Commissioner of Social Security made after a hearing to which he
was a party, irrespective of the amount in controversy, 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); see also Weinberger, 422 U.S. at
763–64 (setting forth section 405(g)’s requirements for judicial review). On its
face, then, section 405(g) specifies a statute of limitations period--it requires
commencement of a civil action within 60 days after the mailing of notice of the
Commissioner’s decision (or within such further time as the Commissioner may
allow).
It is uncontroverted that plaintiff here did not commence a civil action in
federal district court within 60 days of the Commissioner’s decision and that the
Commissioner did not extend the 60-day period. Although the parties disagree as
to the end of the sixty-day limitations period (December 24, 2014--Plaintiff;
December 22, 2014--Commissioner), Plaintiff did not file his complaint in this court
until March 5, 2015, seventy-one days after the deadline even by his reckoning. Of

course, the 60–day requirement set forth in section 405(g) is a statute of limitations
4

and is subject to waiver and equitable tolling. See Bowen v. City of New York,
476 U.S. 467, 478–80 (1986) (60–day period in section 405(g) constitutes a period
of limitations and is subject to equitable tolling); see Weinberger, 422 U.S. at
763–64 (section 405(g) sets forth a 60–day statute of limitations that is waivable by
the parties). As it is clear that the defendant has not waived the statute of
limitations (indeed, the defendant’s motion to dismiss is based on the statute of
limitations), the court need only consider whether equitable tolling is appropriate
in this case. The court, in its discretion, declines to apply the doctrine here. See
United States v. Clymore, 245 F.3d 1195, 1198 (10th Cir.2001) (“[T]he application
of equitable doctrines rests in the sound discretion of the district court.”).
Equitable tolling is used only in rare cases where the equities in favor of
tolling are compelling. See City of New York, 476 U.S. at 480–81. As the
Supreme Court has noted:
Federal courts have typically extended equitable relief only sparingly.
We have [however] allowed equitable tolling in situations where the
claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary's
misconduct into allowing the filing deadline to pass.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). In the Tenth
Circuit, equitable tolling is typically permitted when the defendant’s conduct rises
to the level of active deception, when the plaintiff has been lulled into inaction by
5

the defendant, and when extraordinary circumstances have prevented the plaintiff
from filing his or her claim within the statutory period. See Clymore, 245 F.3d at
1199. Applying these traditional equitable tolling principles, the court is
convinced that tolling of the 60–day period is not appropriate in this instance.
The Commissioner’s conduct in this case does not rise to the level of active
deception, and the evidence does not suggest that Plaintiff was lulled into inaction by the
defendant. Plaintiff asserts he sent a request for additional time to file his suit, but there
is no evidence that the Commissioner received that request, and there is certainly no
evidence that she deceived or attempted to deceive Plaintiff with regard to whether she
would or had approved the request. The Commissioner presented an affidavit sworn by
Kathie Hartt, Chief of Court Case Preparation and Review Branch 2 of the Office of
Appellate Operations, Office of Disability Adjudication and Review of the Social
Security Administration, in which she asserts that the electronic folder in Plaintiff’s case
does not contain any indication of a request for extension of time to file a court case.
(Doc. 11, p.3). Plaintiff does not provide evidence that the Social Security
Administration in fact received a request for extension of time. Plaintiff asserts that he
sent such a request, and he submitted two copies of that alleged request to the court.
(Doc. 4, p.2; Doc. 13, Attach. Z). However, Plaintiff presents no evidence that would
tend to prove receipt of the request by the Commissioner, such as a certified mail receipt,
or a return receipt signed by an agent of the Commissioner. Moreover, the two alleged

6

copies of the request submitted by Plaintiff differ in one major respect. The copy filed
with his motion for extension of time has no footer at the bottom of the request (Doc. 4,
p.2) whereas the copy filed with Plaintiff’s supplement includes a footer stating “Monday,
December 15, 2014 AOL: brandyoffy.” (Doc. 13, “Attached Z”).
Finally, the court finds that the evidence does not suggest that extraordinary

circumstances have prevented the plaintiff from filing his claim within the
statutory period. In his request for extension of time presented to the Office of
Disability Adjudication and Review, Plaintiff sought a 30 day extension to file because he
is a layman and desired to hire an attorney to represent him before the district court. In
doing so, Plaintiff implied that he is unable to file a case in the district court for himself.
Yet, on March 5, 2015 that is exactly what he did, he filed a pro se case in the district
court. He presents no evidence that he could not have done so before the sixty day statute
of limitations expired. Moreover, Plaintiff’s request for extension sent to the Office of
Disability Adjudication and Review sought a thirty day extension of time. (Doc. 4, p.2;
(Doc. 13, “Attached Z”). Had that extension been granted, it would have extended the
time for filing a case with the district court only till January 23, 2015 assuming that
Plaintiff’s calculation of the original limitation of December 24, 2014 is correct. Even
granting Plaintiff the extension he requested, he filed his case on March 5, 2015, fortyone days too late.

7

Finding no circumstances which would justify equitable tolling in this case, the
court finds that this case was filed after the statute of limitations ran, and the court is,
therefore, without subject matter jurisdiction and this case is DISMISSED.
IT IS THEREFORE ORDERED that this case is DISMISSED for lack of
subject matter jurisdiction.
Dated this 29th day of April 2015, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

8