Kiderlen v. Social Security Administration

Filing 15

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Defendant's motion to dismiss (ECF No. 12 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs motion for extension of time to file complaint out of time (ECF No. 14 ) is DENIED. Signed by Magistrate Judge Patricia L. Cohen on 12/01/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT KIDERLEN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case no. 4:16cv774 PLC

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motion to dismiss Plaintiff’s complaint
(ECF No. 12) and Plaintiff’s motion to file his complaint out of time (ECF No. 14). The parties
have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). For the reasons set forth below, Defendant’s motion to dismiss (ECF No. 12) is granted
and Plaintiff’s motion to file his complaint of time (ECF No. 14) is denied.

I.

Background
On February 6, 2013, Plaintiff protectively filed applications for Disability Insurance

Benefits and Social Security Income under Titles II and XVI of the Social Security Act alleging
that he was disabled as of March 15, 2012. (ECF No. 12). The Social Security Administration
(SSA) denied Plaintiff’s claims, and he filed a timely request for a hearing before an
administrative law judge. (Id.). Following a hearing, the ALJ issued a decision on February 11,
2015 denying Plaintiff’s applications for benefits. (Id.).
Plaintiff filed a request for review of the ALJ’s decision with the SSA Appeals Council,
which the Appeals Council denied. (ECF No. 12). By notice dated March 24, 2016, the Appeals
Council informed Plaintiff of its action and advised that he had sixty days from receipt of the

notice to seek judicial review by filing a complaint in the United States District Court. (Id.).
The notice stated: “The 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.” (Id.). The notice further provided that, if Plaintiff could not file a civil
action within sixty days, “you may ask the Appeals Council to extend your time to file” and
“provide good reason for waiting more than 60 days[.]” Id.
Plaintiff filed his complaint on June 1, 2016. (ECF No. 1). In response, Defendant filed
a motion to dismiss the complaint for failure to state a claim. (ECF No. 12). More specifically,
Defendant asserted that Plaintiff failed to state a claim upon which relief can be granted because
he did not file the complaint within sixty days of his presumptive receipt of the Appeals
Council’s March 24, 2016 notice.1 (ECF No. 12).
Plaintiff filed a response to Defendant’s motion to dismiss, in which he stated that the
deadline for appealing the Appeals Council’s decision was May 28, 2016 and that he filed his
complaint four days after the deadline. (ECF No. 13). Plaintiff further acknowledged that he did
not request additional time from the Appeals Council to file the complaint, but alleged that his
“late filing was a result of excusable neglect.” (Id.).
Plaintiff also filed a motion to file his complaint out of time. (ECF No. 14).

Plaintiff

urged the Court to extend the time to file pursuant to Fed. R. Civ. P. 6(b)(1)(B) because
Plaintiff’s untimely filing was the result of excusable neglect. (Id.). Plaintiff explained that he
contacted his counsel’s office on April 1, 2016 and advised counsel’s assistant that the Appeals
Council had denied his request for review. (Id.). Plaintiff alleged that counsel’s assistant
mistakenly calculated the filing deadline from the date of the phone call rather than the date of
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In support of her motion to dismiss, Defendant filed the sworn declaration of an SSA official
demonstrating that Plaintiff filed the complaint initiating this action outside the allowable period.
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the March 24, 2016 notice. (Id.).

Plaintiff urges the Court to “find that Plaintiff’s untimely

filing of his Complaint was excusable neglect” and allow Plaintiff to file his complaint out of
time. (Id.).

II.

Discussion
“The Social Security Act establishes a mechanism for judicial review of final

administrative decisions.” Bess v. Barnhart, 337 F.3d 988, 989 (8th Cir. 2003). Pursuant to
Section 405(g):
Any 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).

The “more lenient” regulations provide that a civil action must be

commenced within sixty days after notice of the Appeals Council decision “is received by the
individual.” Bess, 337 F.3d at 989 (quoting 20 C.F.R. § 422.210(c)). They further state that the
“date of receipt of…notice of the decision by the Appeals Council shall be presumed to be 5
days after the date of such notice, unless there is a reasonable showing to the contrary.” Id. See
also 20 C.F.R. §§ 404.981, 416.1481.
The United States Supreme Court has held that “this timely filing requirement is not
jurisdictional but rather is a statute of limitations and as such will bar suit unless it is tolled.”
Caran v. Bowen, 834 F.2d 720, 721 (8th Cir. 1988) (citing Bowen v. City of New York, 476 U.S.
467 (1986)). It is well established that, in the absence of equitable tolling, failure to comply with
the sixty-day limitation warrants dismissal. See Bess, 337 F.3d at 988; Turner v. Bowen, 862
F.2d 708, 710 (8th Cir. 1988) (per curiam).

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Although Plaintiff did not explicitly request the Court to equitably toll the limitations
period, he sought leave to file his complaint out of time because the untimely filing resulted from
his attorney’s “excusable neglect.”

“Generally, equitable circumstances that might toll a

limitations period involve conduct (by someone other than the claimant) that is misleading or
fraudulent.” Turner, 862 F.2d at 710. “Equitable tolling thus far has been allowed only in those
cases where the government has hindered a claimant’s attempts to exercise [his] rights by acting
in a misleading or clandestine way.” Id. (quoting Wong v. Bowen, 854 F.2d 630, 631 (2d Cir.
1988). Principles of equitable tolling do not extend to cases involving an attorney’s “garden
variety” excusable neglect. See Harris v. Chater, 68 F.3d 478 (8th Cir. 1995) (unpublished)
(denying equitable tolling where claimant’s attorney misread the unclear date stamp on the
Appeals Council’s letter). See also Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 96 (1990)
(tolling allowed where party was tricked or deceived by adversary’s conduct, or where filing was
timely but defective, but not where late filing resulted from attorney’s “garden variety”
excusable neglect).
Upon review, the Court finds that Plaintiff failed to demonstrate circumstances that
justify equitable tolling. Because “garden variety” excusable neglect by an attorney does not
constitute the extraordinary circumstances necessary to equitably toll the statute of limitations,
tolling is not appropriate here.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss (ECF No. 12) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for extension of time to file
complaint out of time (ECF No. 14) is DENIED.

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PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 1st day of December, 2016

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