Hunter v. Commissioner of the Social Security Administration

Filing 14

REPORT AND RECOMMENDATIONS re 8 MOTION to Dismiss filed by Commissioner of the Social Security Administration. Signed by Magistrate Judge Stephanie A Gallagher on 1/4/2017. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FLOSSIE DENNIA HUNTER

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v.
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COMMISSIONER, SOCIAL SECURITY
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Civil Case No. GLR-16-3325

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-captioned case has been referred to me to
review the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the Commissioner’s Motion to
Dismiss. [ECF No. 8]. Ms. Hunter did not file an opposition to the motion before the deadline.
I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the reasons set forth
below, I recommend that the Commissioner’s motion be granted, and that the case be dismissed
as untimely filed.
On September 30, 2015, the Appeals Council mailed Ms. Hunter notice of its decision
denying her request for review of an unfavorable decision issued by an Administrative Law
Judge (“ALJ”). Declaration of Nancy Chung (Chung Decl.) Ex. 2. That notice also advised Ms.
Hunter of her statutory right to commence a civil action within sixty days from receipt of the
notice. Id.; 42 U.S.C. §§ 405(g) and (h). The Commissioner’s implementing regulations have
interpreted the statute to permit sixty-five days from the date of the notice, to allow sufficient
time for mailing the notice. 20 C.F.R. §§ 404.901, 422.210(c). Ms. Hunter has not alleged that
she received the notice outside of the statutory time period. She therefore had to file her civil
action on or before December 5, 2015.
Ms. Hunter, through counsel, did in fact file a civil action on November 11, 2015. See

Hunter v. Colvin, No. 1:15-cv-03440-WMN. However, counsel did not serve that summons and
complaint upon the Commissioner within 120 days, and did not respond to a show cause order
issued by this Court to ascertain the basis for the failure to effect service. Accordingly, that civil
action was dismissed on March 30, 2016.
Instead, Ms. Hunter, represented by the same attorney, filed this new complaint on
October 3, 2016, more than one year after the Appeals Counsel had issued its notice. [ECF No.
1]. Congress has authorized lawsuits seeking judicial review of decisions by the Commissioner
only under certain limited conditions, including specified filing deadlines. City of Tacoma v.
Taxpayers of Tacoma, 357 U.S. 320, 336 (1958). The sixty-five day limitations period must
therefore be strictly enforced, absent (1) an agreement by the Commissioner to toll the deadlines,
or (2) a valid basis for equitable tolling of the deadlines. “[B]ecause of the importance of
respecting limitations periods, equitable tolling is appropriate only ‘where the defendant has
wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of
action.’” Kokotis v. U.S. Postal Service, 223 F.3d 275, 280 (4th Cir. 2000) (quoting English v.
Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). Ms. Hunter has not alleged, and the
record does not reflect, any misconduct on the part of the Commissioner in this case. As a result,
equitable tolling is not warranted. I therefore recommend that the Commissioner’s Motion to
Dismiss be granted.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT Defendant’s Motion to Dismiss [ECF No. 8]; and
2. the Court close this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
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NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report, and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: January 4, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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