OLIVERAS v. COMMISSIONER OF SOCIAL SECURITY
MEMORANDUM & ORDER denying 4 Motion to Dismiss. Signed by Judge Kevin McNulty on 5/12/16. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
IRAIDA JIMENEZ OLIVERAS,
Civ. No. 15-cv-8431 (KM)
MEMORANDUM & ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
The plaintiff, Iraida Jimenez Oliveras, filed this appeal from the
Commissioner’s denial of supplemental social security income (SSI) benefits on
December 3, 2015. The final decision of the Appeals Council, from which she
appeals, is dated September 9, 2015. The Commissioner moves to dismiss this
action pursuant to Federal Rule of Civil Procedure 12(b)(1) because it was not
filed within 60 days of Ms. Oliveras’s receipt of the notice of the Appeals
Council’s denial. For the reasons set forth below, I find that the doctrine of
equitable estoppel applies, and excuse the filing of the late-filed appeal. The
motion to dismiss is denied.
Plaintiff applied for supplemental social security income (SSI) benefits on
September 20, 2011. The Commissioner denied the claim on October 28, 2011.
Following two motions for reconsideration of that denial, the Commissioner
again denied the application on March 21, 2012. On April 7, 2012, Plaintiff
appealed that denial and requested a hearing before an Administrative Law
Judge (AU). On September 23, 2013, a hearing was held before the Hon.
Donna A. Krappa. Judge Krappa denied Plaintiff’s application on May 12, 2014.
Plaintiff then appealed that denial on June 6, 2014, to the Appeals Council.
The Appeals Council denied review on September 9, 2015. A copy of the denial
was mailed the same day.
Plaintiff’s counsel received a notice of the Appeals Council denial on
September 14, 2015. (Decl. of Marieliz Monclova, dated Mar. 28, 2016, Dkt. No.
6-2 (“Monclova Decl.”
2) The Complaint and accompanying Application to
Proceed Without Prepayment of Fees or Costs (“Application”) were prepared,
and Ms. Monclova attempted to file them on October 23, 2015. (Id.
Apparently, some technical glitch occurred and the documents were not
actually received by the electronic filing system. (Id.
6) Upon noticing the
problem, Plaintiff’s counsel filed the Complaint and Application on November
25, 2015. (Id.
7) The matter was assigned civil docket number 2:15-cv-8360
and the Complaint was docketed as Dkt. No. 1. The Court denied the IFP
Application on December 2, 2015, thereby terminating the case. (Id.
Docket for 2:15-cv-8360, Dkt. No. 2)
Counsel revised and resubmitted the IFP Application and Complaint on
December 3, 2015, under the new and current docket number, 15-cv-8431.
9, 10) This Court granted the IFP Application, as
resubmitted, on December 4, 2015. (Dkt. No. 2)
Courts are empowered to review final decisions of the Commissioner of
Social Security pursuant to 42 U.S.C.
405(g)-(h) and 42 U.S.C. 1383(c)(3):
(g) Judicial review. 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
(h) Finality of Commissioner’s decision. The findings and decisions of the
Commissioner of Social Security after a hearing shall be binding upon all
individuals who were parties to such hearing. No findings of fact or
decision of the Commissioner of Social Security shall be reviewed by any
person, tribunal, or governmental agency except as herein provided
§ 405 (emphasis added). Here, there is no dispute that the Appeals
Council’s decision to deny review of the AU’s decision constituted a final
decision of the Commissioner.
Pursuant to regulation, “mailing” of notice, for purposes of section 405(g),
is deemed to occur on the date that the claimant actually receives the Appeals
Council’s notice of denial. Absent independent proof, the date of receipt is
legally presumed to be five days after the date of notice. 20 C.F.R.
at 416.1401; Pennerv. Schweiker, 701 F.2d 256, 257 n. 1 (3d Cir.1983).
The 60 day period may be extended by the Appeals Council on written request,
showing good cause. 20 C.F.R.
§ 422.2 10(c); id. at § 405.505; id. at § 405.20.
Here, the parties agree that the complaint was not filed within 60 plus 5
days of the Appeals Council’s denial notice. See 20 C F. R.
§ 416.1841; id. at §
416.1401. Notice of the final decision was mailed on September 9, 2015.
Counting 60 days, plus the 5 day mailing period, means that plaintiff’s
complaint was due to be filed by November 13, 2015. Plaintiff’s complaint in
this action was not docketed until December 3, 2015, approximately 20 days
late. It is true that Plaintiff attempted, on November 25, 2015, earlier to file her
Complaint and IFP Application under docket number 15-cv-8360. Even that
earlier filing, however, was twelve days late. The parties agree that no extension
of the filing deadline was sought.
This is not, however, the end of the matter. Plaintiff contends that the
Court should exercise its equitable discretion to toll the 60-day period. See
Bowen v. City of New York, 476 U.S. 467, 478-82, 106 S.Ct. 2022 (1986).
“There are three principal basis for applying the doctrine of equitable tolling:
‘(1) where the defendant has actively misled the plaintiff respecting the
plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has
been prevented from asserting his or her rights; or (3) where the plaintiff has
timely asserted his or her rights mistakenly in the wrong forum.” Kramer v.
Cornm’r of Social Sec., 461 F. App’x 167, 169 (3d Cir. 2012) (citing Oshiz,’er v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)).
Plaintiff’s counsel affirms that they intended to file the Complaint and
Application on October 23, 2015. (Monclova Decl.
5) Counsel’s secretary
recalls trying to upload the documents to the electronic filing system and
marking it as being completed. (Id.) There was, apparently, “some problem with
that filing,” and the documents were not actually received by the electronic
6) At some undisclosed time, counsel noticed that the documents
had not been properly filed and then succeeded in filing the documents on
November 25, 2015, and again on December 3, 2015. (Id.
7) I note that,
although docketed on December 3, 2015, the IFP Application is dated October
22, 2015, and the Complaint is dated October 23, 2015. (Dkt. Nos. 1, 1-1)
Plaintiff’s counsel does not specifically state the date on which it realized
that the October 23 attempted filing had failed, nor does counsel address why
it was unable to refile the documents before the November 13 deadline (some
twenty days after the failed first attempt). Nevertheless, I find that this
attempted filing, which was frustrated by some technical difficulty, falls within
the bounds of the equitable tolling doctrine. See, e.g., Hansen v. Astrue, 2012
WL 1551887, at *4 (W.D. Pa. Apr. 30, 2012) (quoting Oshiver, 38 F.3d at 1387)
(applying equitable tolling where plaintiff’s counsel attempted to electronically
file complaint but was unable to do so because of “electronic malfunction” or
It is not entirely clear whether the delay is attributable to counsel’s error
(which, in and of itself, is not grounds for equitable tolling) or some problem
with the CM/ECF system. It is clear, however, that the Complaint and
Application are dated October 22 and 23, 2015, corroborating Plaintiff’s
affirmation of intent to file by the deadline. I do not believe that the client
should be penalized for this technological error, particularly where the
resulting delay was less than one month, and the SSA has not shown any
prejudice. See, e.g., Hansen, 2012 WL 1551887 at *4 (“[I]t would be inequitable
if it turned out that Hansen had to suffer the consequences of an error made
an electronic malfunction in the Court’s ECF system.”).
I will therefore apply the equitable tolling doctrine and deem Plaintiff’s
complaint to have been filed timely.
Accordingly, for the reasons stated above, and good cause having been
IT IS this 12th day of May, 2016,
ORDERED that Defendant Commissioner’s motion to dismiss the
Complaint pursuant to Fed. R. Civ. P. 12(b)(1) is DENIED.
HUN. KEVIN MCNIJLTY, U.S.D()
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