MCMILLAN v. COMMISSIONER OF SOCIAL SECURITY
OPINION AND ORDER denying 6 Motion to Dismiss ; granting 2 Motion TO FILE PLAINTIFF'S COMPLAINT NUNC PRO TUNC; that within sixty (60) days of this Order, Defendant shall file the administrative record with the Clerk of this Court, which shall constitute Defendant's answer, or otherwise move, pursuant to Local Civil Rule 9.1(c)(l).. Signed by Judge Claire C. Cecchi on 5/8/2017. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 2:16-cv-313 (CCC)
OPINION & ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
CECCHI, District Judge.
This matter comes before the Court on the motion of Defendant Commissioner of Social
Security (“Defendant”) to dismiss the Complaint of Plaintiff Michele McMillan (“Plaintiff’) for
failure to timely file this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C
405(g) (ECF No. 7), and Plaintiffs motion to file the Complaint mine pro tunc (ECF No. 2).
Plaintiff opposes Defendant’s motion. ECF No. 8. No oral argument was heard. See fed. R. Civ.
P. 78. for the reasons set forth below, Defendant’s motion is denied and Plaintiffs motion is
On June 11, 2012, Plaintiff filed an application for disability insurance benefits. ECF No.
7 at 1. Plaintiffs application was denied initially and upon reconsideration. Id. On february 4,
2014, an administrative law judge (“AU”) issued a decision finding Plaintiff was not disabled, as
defined under the Social Security Act. Id.
On May 13, 2015, the Appeals Council denied
Plaintiffs request for a review of the AU’s decision, and mailed a denial notice to Plaintiff and
Plaintiffs representative. Id. The denial notice informed Plaintiff of her right to commence a civil
action within 60 days from the date of receipt of the notice. Id. The parties do not dispute the
above-stated facts. See ECF No. 8 at 1.
Plaintiff alleges that she attempted to timely file the Complaint on July 17, 2015. ECF No.
$ at 1; ECF No. 2-1
Legal Secretary Patricia McKeon certifies that on July 17, 2015, “in the
course of my ordinary responsibilities.. I caused this matter to be filed and placed on the Court’s
docket, effectuating payment from the ECF account with this Court.” ECF No. 2-1
alleges that the “ECF account of [P]laintiff s counsel was appropriately debited for filing on that
date. Yet, the complaint was not filed on the docket.” ECF No. 8 at 1. To support this claim,
Plaintiff has attached a bank statement to her motion indicating that the account was debited on
July 17, 2015 in the amount of $400. ECF No. 2-1 at 3.
This Court has jurisdiction to review claims arising under the Social Security Act, only to
the extent provided in Sections 205(g) and (h) of the Social Security Act, 42 U.S.C.
§ 405(g) and
(h). Section 405(h) states:
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.
No action against the United States, the Commissioner of Social Security or any
officer or employee thereof shall be brought under section 1331 or 1346 of Title 28
to recover on any claim arising under this subchapter.
Section 405(g) provides, in relevant part:
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 ofSocial Security may allow.
405(g) (emphasis added). “Absent independent proof, the date of receipt is legally
presumedto be five days afterthe date of notice.” 20 C.F.R.
Plaintiff, thus, had sixty-
five days to file a timely complaint. See Oliveras v. Colvin, No. 1 5-CV-843 1 (KM), 2016 WL
2757974, at *2 (D.N.J. May 12, 2016).
In Bowen v. City of New York, the Supreme Court found the sixty-day limitation “is a
condition on the waiver of sovereign immunity and thus must be strictly construed.” 476 U.S.
467, 479 (1986).
The Court “conclude[d] that application of a ‘traditional equitable tolling
principle’ to the 60-day requirement of § 405(g) is fully ‘consistent with the overall congressional
purpose’ and is ‘nowhere eschewed by Congress.” Id. at 480 (citing Honda v. Clark, 386 U.S.
484, 501 (1967)). “Where, as here, the plaintiff has missed the deadline for filing,” the Third
Circuit provides for three sets of circumstances under which the doctrine of equitable tolling may
apply: “(1) where the defendant has actively misled the plaintiff respecting the plaintiffs 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. Comm’r of Soc. Sec., 461 F. App’x 167, 169 (3d Cir. 2012) (quoting Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994)).
Here, Plaintiff readily acknowledges that the Complaint is docketed as untimely. ECF No.
8 at 1. However, Plaintiff argues that the doctrine of equitable tolling is appropriate in this
circumstance and the Court should deem the Complaint to be filed timely.
Plaintiffs counsel has submitted a Certification of the legal secretary, Ms. Patricia
McKeon of the law firm, stating that on July 17, 2015, she “prepared the Complaint, Civil Cover
Sheet and Summons
[and] caused this matter to be filed and placed on the Court’s docket,
effectuating payment from the ECF account with this Court maintained by my employers.” ECF
Ms. McKeon certifies that she “later learned from the Clerk of this Court, [that] the
payment was recorded in the Clerk’s office but the Complaint was never recorded on this Court’s
docket. Our account was appropriately charged the filing fee of $400.” Id. Plaintiff has also
submitted a bank statement to verify that $400 was debited from the bank account on July 17,
2015. Id. at 3. It is unclear whether the error is attributable to Plaintiffs counsel, or the CM/ECF
system itself. However, similar to Oliveras v. Colvin, a case from this district, the Complaint and
Application are dated July 17, 2015 “corroborating Plaintiffs affirmation of intent to file by the
deadline.” 2016 WL 2757974, at *3 (finding the equitable tolling doctrine applicable).
When faced with a similar circumstance, another court in this Circuit found the doctrine of
equitable tolling applicable as to the third scenario envisioned by the Third Circuit
plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Kramer, 461 F.
App’x at 169. The Court in Hansen v. Astrue found “[t]he language employed by our Court of
Appeals would seem to embrace the present situation, in which [the plaintiff] has timely asserted
his rights in the correct forum by improperly forwarding (or allegedly attempting to forward) the
relevant documents to the ECF computer database.” No. CIV.A. 11-1212, 2012 WL 1551887, at
*4 (W.D. Pa. Apr. 30, 2012). Moreover, the court found “it would be inequitable” for the Plaintiff
to “suffer the consequences of an error made by a judicial employee or an electronic malfunction
in the Comfs ECF system.” Id. (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 32 F.3d
1380, 1387 (3d Cir. 1994) (stating that equitable tolling is appropriate “where the plaintiff in some
extraordinary way has been prevented from asserting his or her rights”)); see also Gilliam v.
Verizon Pennsylvania, Inc.,No. CIV.A. 13-1557, 2014 WL 901296, at *7 (W.D. Pa. Mar. 7,2014)
(finding that a situation where the court charged a fee but did not docket the complaint “qualifies
as an ‘extraordinary circumstance’ sufficient to invoke equitable tolling.”). Here, the Court finds
the equitable tolling doctrine applies, as Plaintiff has provided sufficient evidence for the Court to
find a mistake has been made, and it would be inequitable to hold Plaintiff herself accountable for
an error of the Court’s docketing system.
Accordingly, Defendant’s motion to dismiss for failure to file a timely complaint is denied,
Plaintiff’s motion to file Plaintiffs complaint nunc pro tune is granted, and the Court will deem
Plaintiffs complaint to have been filed timely. See Oliveras, 2016 WL 2757974, at *3
For the reasons set forth above,
ORDERED that Defendant’s motion to dismiss (ECF No. 7) is DENIED; it is further
ORDERED that Plaintiffs motion to file Plaintiffs complaint nunc pro tune (ECF No. 2)
is GRANTED; it is further
ORDERED that within sixty (60) days of this Order, Defendant shall file the
administrative record with the Clerk of this Court, which shall constitute Defendant’s answer, or
otherwise move, pursuant to Local Civil Rule 9.1(c)(l).
CLAIRE C. CECCHI, U.S.D.J.
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