Coots v. SSA
MEMORANDUM OPINION AND ORDER: IT IS ORDERED that the Commissioner's motion to dismiss this appeal (Doc. #10) is granted. A Judgment in favor of Defendant Commissioner will be entered contemporaneously. Signed by Judge David L. Bunning on 2/14/2017.(RC)cc: COR Modified text to correct typo on 2/14/2017 (RC).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 16-64-DLB
MEMORANDUM OPINION AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. Defendant, the Acting
Commissioner of Social Security, moves to dismiss this action pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim as to which relief can be granted,
asserting that it was filed beyond the time limit permitted by 42 U.S.C. § 405(g) (Doc. # 10).
Plaintiff having filed his response to the motion, seeking application of equitable principles
(Doc. # 11), and Defendant having filed her reply (Doc. # 12), the motion is ripe for review.
For the reasons that follow, Defendant’s motion to dismiss will be granted.
Factual and Procedural Background
On August 20, 2014, an administrative law judge (ALJ) issued a decision denying
Plaintiff’s claim for benefits under Titles II and XVI. Plaintiff appealed to the SSA Appeals
Council, which, on December 21, 2015, sent him a notice stating that it would not review
the decision. This action by the Appeals Council rendered the ALJ’s decision the “final
decision” of the Commissioner.
The notice was mailed to the Plaintiff at P.O. Box 143, Yeaddiss, KY 41777-0143,
and explained both that the decision was now final, and that Coots had sixty days to
contest it in court, unless he could show that he did not receive the notice within the five
day grace period. If so, then he could “ask the Appeals Council to extend his time to file.”
If not, then he would have to file his suit within sixty-five days—or, by February 24, 2016.
Plaintiff did not request any extension to file a civil action as explained in the notice.
Rather, he thereafter filed his complaint on April 19, 2016, almost two months late.
In his response to the Commissioner’s motion, Plaintiff’s counsel infers that Plaintiff
must have moved which explains why he did not receive the Appeals Council’s decision
and no appeal was taken by the deadline. Counsel submitted a letter dated December 28,
2015, addressed to Coots’ P.O. Box in Yeaddiss, Kentucky, advising him of the decision.
(See Doc. # 11-1). Having heard no response from Coots, counsel reached out to Coots’
mother on April 7, 2016 and was eventually able to reach Coots himself.
The federal government “is immune from suit save as it consents to be sued.” United
States v. Sherwood, 312 U.S. 584, 586 (1941). Therefore, Congress decides how, and
where, individuals may sue federal agencies. See City of Tacoma v. Taxpayers of Tacoma,
357 U.S. 320, 336 (1958). When a person wants to sue the SSA, he must follow the rules
that Congress set out in the Social Security Act. That Act includes a statute of limitations.
42 U.S.C. § 405(g). So if someone wants a federal court to review a final SSA decision,
he must seek review “within sixty days after the mailing to him” of a notice of the decision,
or otherwise “within such further time as the [SSA] may allow.” Id. This time limit helps
“move cases to a speedy resolution in a bureaucracy [the SSA] that processes millions of
claims annually.” Bowen v. City of New York, 476 U.S. 467, 481 (1986).
However, two entities have the power to toll Section 405(g)’s time limit. The first is
the SSA, which may choose to give an unsuccessful applicant more time to file his
complaint in federal court. 42 U.S.C. § 405(g). Here, the SSA has not given Coots such
an extension, a point that Coots does not contest. However, even if the SSA does not use
its statutory power to toll the statute, the Court may use its equitable powers to do so.
Bowen, 476 U.S. at 480 (finding such tolling “fully ‘consistent with the overall congressional
purpose’” of Section 405(g)). This is the doctrine of equitable tolling. Where the “equities
in favor of tolling” are “great” enough, the Court can toll the statute itself. Id.
The question here is whether equitable tolling is warranted, and before the Court can
properly answer that, it must find the right test. In Cook v. Comm’r of Soc. Sec., 480 F.3d
432, 437 (6th Cir. 2007), the Sixth Circuit opted for a five-factor balancing test when
deciding whether to toll Section 405(g). However, that test was taken from its prior habeas
precedents. See Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). More recently, the
Supreme Court made a new test the law—for habeas tolling cases, at least. This test has
two elements, both of which a tardy litigant must satisfy before a court will use its equitabletolling power. See Holland v. Florida, 560 U.S. 631, 649 (2010). The Court must consider,
first, whether the litigant has “been pursuing his rights diligently,” and, second, whether
“some extraordinary circumstance” prevented him from filing on time. Menominee Indian
Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016) (quoting Holland, 560 U.S. at
649). And not just any old extraordinary circumstance, either. The circumstance must have
been “both extraordinary and beyond [the litigant’s] control.” Id. at 756. Although neither
Menominee nor Cook specifically involved whether the two-part tolling test applies to
Section 405(g), Judge Amul Thapar of our Court recently found that it does. See Salyer
v. Colvin, 2016 WL 6990765 (ED KY Nov. 28, 2016). The Court agrees with Judge Thapar,
and will apply the two part test set forth in Menominee to the facts here.
Coots is therefore entitled to equitable tolling if he has “been pursuing his rights
diligently” but “some extraordinary circumstance stood in his way and prevented timely
filing.” Menominee, 136 S. Ct. at 755. A litigant satisfies the second part of the tolling test
“only where the circumstances that caused [his] delay are both extraordinary and beyond
[his] control.” Id. at 756. Coots has failed to satisfy either prong.
First, not keeping your attorney appraised of your mailing address, which is what
counsel infers, falls far short of conduct evidencing someone who is pursuing their rights
diligently. To the contrary, it shows someone who really isn’t interested in continuing his
legal battle with the SSA. If appealing the case was so important to Coots, one would
expect him to keep in contact with his attorney. Second, the circumstances which lead him
to not receive the notice of the Appeals Council’s decision were neither extraordinary nor
most definitely beyond his control. Simply keeping his attorney appraised of his address
or other contact information would have ameliorated the situation. Both of those simple
steps were within his control. For these reasons, the Court concludes that Coots is not
entitled to equitable tolling of the 60 day period set forth in Section 405(g).
Accordingly, for the reasons stated herein, IT IS ORDERED that the Commissioner’s
motion to dismiss this appeal (Doc. # 10) be, and is hereby granted. A Judgment in favor
of Defendant Commissioner will be entered contemporaneously herewith.
This 14th day of February, 2017.
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