Dalton v. Colvin

Filing 9

ORDER denying 4 motion to dismiss case. Answer due on or before 7/8/14. Signed on 6/4/14 by District Judge Ortrie D. Smith. (Wolfe, Steve)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LEAH M. DALTON,

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

Case No. 14-0047-CV-W-ODS

ORDER AND OPINION DENYING DEFENDANT’S
MOTION TO DISMISS
Pending is Defendant’s Motion to Dismiss, which contends Plaintiff’s appeal of
the final decision denying her application for benefits was untimely. The motion (Doc. #
4) is denied.
An appeal must be filed within sixty days after the Appeals Council’s decision is
mailed “or within such further time as the Commissioner of Social Security may allow.”
42 U.S.C. § 405(g). By regulation, the Commissioner has decreed that a suit must be
filed within sixty days of receipt of the Appeals Council’s decision, and receipt is
presumed to have occurred five days after mailing. 20 C.F.R. § 422.210(c).
The Appeals Council’s decision is dated November 7, 2013. Defendant’s time
calculations and arguments are based on this date. However, Plaintiff has presented
evidence – which was not rebutted or addressed because Defendant elected not to file
Reply Suggestions – indicating the Appeals Council’s decision was postmarked on
November 11, 2013. This date was a federal holiday (which raises a question as to how
it was postmarked on that date), and the Court takes judicial notice of the fact that mail
does not move on federal holidays. Thus, the Appeals Council’s decision was
effectively mailed on November 12, and Plaintiff is presumed to have received it on
November 18 (because November 17 was a Sunday and mail is not delivered on

Sunday). Plaintiff thus had to file this action by January 17, 2014. The case was filed
on January 16, so it was timely.1
The Commissioner shall have until and including July 8, 2014, to file an Answer
in this case.
IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: June 4, 2014

1

The suit was timely even if the presumptive date of receipt was Sunday,
November 17.
2