McCracken v. Astrue

Filing 8

ORDER adopting 7 Report and Recommendations and denying 4 Motion to Dismiss. Signed by U.S. District Judge Mae A. D'Agostino on 1/29/13. (Attachments: # 1 Report and Recommendation) (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

LAURA McCRACKEN,
Plaintiff,
v.

No. 12-CV-193
(MAD/CFH)

MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

INSLER & HERMANN, LLP
Attorney for Plaintiff
560 White Plains Road
Tarrytown, New York 10591

LEWIS B. INSLER, ESQ.

HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
Attorney for Defendant
100 South Clinton Street
Syracuse, New York 13261-7198

BENIL ABRAHAM, ESQ.
Special Assistant United States Attorney

CHRISTIAN F. HUMMEL
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
On January 27, 2012, counsel for Laura McCracken (“McCracken”) initiated this
action, pursuant to 42 U.S.C. § 405(g), seeking review of a decision by the
Commissioner of Social Security denying her application for disability benefits. Compl.
(Dkt. No. 1). On March 26, 2012, defendant filed a motion to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(1), arguing that because McCracken failed to file
her complaint within the proscribed sixty-day filing period, the Court lacks subject matter
jurisdiction to entertain the action. Dkt. No. 4. McCracken opposes the motion. Dkt.

No. 5. For the reasons stated below, it is recommended that defendant’s motion be
denied.

I. Background
McCracken filed an application under Title II of the Social Security Act for benefits
due to a disability occurring since December 20, 2007. Ortiz Decl. (Dkt. No. 4-2 at 1-5)
¶ (3); Dkt. No. 4-2 at 9. In a written decision dated September 24, 2010, after presiding
over a hearing, administrative law judge (“ALJ”) Roberto LeBron found that McCracken
retained the residual functional capacity (“RFC”) to perform a full range of light work.
Dkt. No. 4-3 at 9 n1. McCracken requested review from the Appeals counsel and in an
order dated December 7, 2010, the Appeals counsel directed ALJ LeBron to further
assess McCracken’s RFC given additional considerations and limitations. Id.
A second hearing was held before ALJ LeBron on February 7, 2011. Dkt. No. 4-2 at
9. McCracken was represented by the same counsel she currently retained. Id. In a
decision dated April 18, 2011, the ALJ held that McCracken was not entitled to
disability benefits. Dkt. No. 4-3 at 6-22; Ortiz Decl. ¶ 3(a). McCracken filed a request
for review with the Appeals Council, and on September 12, 2011, the Appeals Council
denied that request, thus making the ALJ’s findings the final decision of the
Commissioner. Ortiz Decl. ¶ 3(a); Dkt. No. 4-2 at 23-28. Within the Appeals Council
correspondence was “notice of . . . the right to commence a civil action [in federal court]
within sixty (60) days from the date of receipt,” of the Appeals Council’s decision. Ortiz
Decl. ¶ 3(a); Dkt. No. 4-2 at 24. Additionally, there was direction that an extension of
the sixty-day time period may be requested and granted for good reason. Dkt. No. 4-2
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at 24. No such request for an extension was made on McCracken’s behalf. Ortiz Decl.
¶ 3(b). The present action was filed on January 27, 2012, indisputably outside of the
sixty-day time period.
Counsel for McCracken, a firm that primarily engages in Social Security Disability
appeals, was retained on April 24, 2009 and represented McCracken through her
administrative hearings and appeals. Dkt. No. 5 at 1. During the pendency of the
action, McCracken moved from the Southern District of New York to the Northern
District of New York. Id. Assuming the local rules of the Northern District were identical
to the Southern District, on November 14, 2011 counsel filed the present action
traditionally instead of electronically. Id. at 2; Compl. ¶ 5. This mistake was
compounded by the fact that the mailed package containing the complaint was
improperly addressed. Compl. ¶ 5. The complaint was returned to the law firm on
December 29, 2011 and electronically filed on January 27, 2012. Dkt. No. 5 at 2. The
delay was due to the fact that counsel was unaware that his biennial dues had not been
paid for two periods, thus, by the time counsel was made aware of his delinquency,
paid his dues, and was able to actually file the complaint, an additional month had
passed. Id. Therefore, counsel attributes this combination of errors to law office
failures, asking that McCracken not been penalized for the law firm’s lapses. Id.

II. Discussion
A. Standard of Review
“A case is properly dismissed for lack of subject matter jurisdiction under Rule

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12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate
it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing FED. R. CIV. P.
12(b)(1)). Federal courts are “duty bound . . . to address the issue of subject matter
jurisdiction at the outset.” Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 929 (2d
Cir. 1998). “In resolving the question of jurisdiction, the district court can refer to
evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that [jurisdiction] exists.”
Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002) (citations omitted); see also
Societe Nationale d’Exploitation Industrielle des Tabacs et Allumettes v. Salomon Bros.
Int’l Ltd., 928 F. Supp. 398, 402 (S.D.N.Y. 1996) (“[T]he Court need not accept as true
contested jurisdictional allegations and may resolve disputed jurisdictional facts by
reference to affidavits and other materials outside the pleadings.”) (citing cases).

B. Timely Filing
Absent Congressional consent to be sued, the United States is immune from suit
and federal courts lack subject matter jurisdiction to entertain the suit. Makarova, 201
F.3d at 113 (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)). Where the
United States waives sovereign immunity and consents to be sued, the terms of such
consent define the court’s jurisdiction to entertain the suit. Mitchell, 445 U.S. at 538
(citations omitted). In the case at bar, the express Congressional consent to suit can
be found at 42 U.S.C. § 405(g), which authorizes judicial review of cases arising under
Title II of the Social Security Act. Section 405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security
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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.
It is clear from this statute that judicial review is only permitted in accordance with the
terms therein:
The findings and decision 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. 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.
42 U.S.C. § 405(h); see also Panetta v. Astrue, No. 07-CV-1265, 2009 WL 511349, at
*1 (N.D.N.Y. Feb. 27, 2009) (holding that “[t]he Social Security Act precludes judicial
review of any finding of fact or decision of the Secretary except as provided in Section
405(g).”) (quoting inter alia Weingerbeger v. Salfi, 422 U.S. 749 (1975)) (internal
quotation marks omitted).
Indisputably, McCracken’s complaint was untimely filed. Moreover, McCracken was
aware of the ability to seek an extension of the sixty-day deadline for good cause, and
failed to do so. However, the sixty-day limitation has been deemed subject to equitable
tolling, which, “given the nature of social security . . . is not infrequently appropriate.”
Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (citing Bowen v. City of New York,
476 U.S. 467, 480 (1986); State of New York v. Sullivan, 906 F.2d 910, 917 (2d Cir.
1990) (quotation marks omitted). “[E]quitable tolling requires a showing of both
extraordinary circumstances and due diligence.” Id. Thus, this Court does not have
jurisdiction to hear McCracken’s appeal unless equitable tolling applies.
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Attorney errors may be sufficient to invoke equitable tolling; however, “the failure of
a retained attorney to file a federal social security complaint does not necessarily
constitute an extraordinary circumstance warranting [such] . . . .” Torres, 417 F.3d at
280 (internal quotation marks and citations omitted); see also Baldayaque v. United
States, 338 F.3d 145, 151-52 (2d Cir. 2003) (explaining “that at some point, an
attorney’s behavior may be so outrageous or so incompetent as to render it
extraordinary.”). Attorney misconduct rises to a level warranting tolling when more than
ordinary, “garden variety” mistakes are made. See e.g., Dillion v. Conway, 642 F.3d
358, 363 (2d Cir. 2011) (finding extraordinary circumstances where the attorney
affirmatively and knowingly mislead[s a client]“ by engaging in conduct where he
“willfully ignore[s] the express instructions of his client, d[oes] not conduct any legal
research . . . and never sp[eaks] to the client.” (citations omitted) (emphasis in original);
see also Holland v. Florida, 130 S. Ct. 2549, 2564 (2010) ( holding “that a garden
variety claim of excusable neglect . . . such as a simple miscalculation that leads a
lawyer to miss a filing deadline . . . does not warrant equitable tolling.”) (internal
citations and quotation marks omitted); Torres, 417 F.3d at 280 (finding exceptional
circumstances sufficient to establish equitable tolling where an attorney (1) orally stated
he would help the plaintiff; (2) requested the complaint and underlying administrative
documents from the plaintiff both orally and in writing; (3) sent the plaintiff a fee
agreement to sign in return; and (4) failed to timely file the complaint despite being “fully
cognizant of the time constraints, . . . [and] agree[ing] to assist [the plaintiff] in filing . . .
.”).
In the case at bar, McCracken has shown both extraordinary circumstances and
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reasonable diligence necessary to initiate equitable tolling. Counsel’s actions represent
extraordinary circumstances given the pervasive, repeated failures in connection with
McCracken’s representation in the instant case. While distinguishable from attorneys
discussed in the previous cases who affirmatively misled or ignored their clients, in this
case, counsel’s ongoing failures despite a continued, concerted effort to successfully
litigate McCracken’s case still rise to the level of extraordinary.
Counsel, irrespective of working at a law firm holding itself out as an expert in
disability benefits cases including Social Security Disability cases, was unfamiliar with
the local rules and failed to review them despite being admitted, practicing, and filing an
action within the Northern District of New York. Counsel also failed to properly address
the envelope containing the complaint, which led to confusion with its processing and
return. Moreover, even upon receipt of the complaint and an attempt to remedy its
initial misfiling, counsel still failed in his representation obligations as he had not
remained current with his federal bar dues, precluding him from properly filing the
complaint until his financial obligations were satisfied. While each individual failure
represents the type of garden variety attorney negligence that would be deemed
insufficient to establish extraordinary circumstances, such failures in combination, even
though inadvertent, represent the type of incompetence capable of being categorized
as extraordinary.
Moreover, counsel has shown reasonable diligence in pursuing the instant
complaint. Counsel had represented McCracken throughout the course of the
administrative proceedings without issue. There was no reason for McCracken to
presume that her personal decision to move residences within the state, resulting in a
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change of venue from the Southern to Northern District, would result in her having to
continually follow up with her counsel, or the Court, because her move would render
counsel incapable of successfully continuing to litigate her claims. This notion is further
supported given her attorney’s touted expertise in disability claims and ability to
navigate through the underlying administrative proceedings. Moreover, crediting
counsel’s proffer in his response, there were numerous attempts to file the instant
complaint. Given when these attempts commenced, timely filing would have been
accomplished had it not been for the pervasive failures by counsel outlined above.
Given the remedial nature of the Social Security statute and the legal precedent
protecting plaintiffs from extraordinary circumstances arising out of their representation,
whether the result of affirmative acts of concealment and treachery or inadvertent acts
of repeated ignorance, it is recommended that although untimely filed, equitable tolling
applies to the instant complaint.
WHEREFORE, after due consideration being given, it is hereby
RECOMMENDED, the defendant’s motion to dismiss (Dkt. No. 4) be DENIED; and it
is further
ORDERED, that the Clerk serve the parties in accordance with the local rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
(14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d

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Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(e).

IT IS SO ORDERED.
Dated: January 7, 2013
Albany, New York

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