Clemonts v. Commissioner of Social Security et al

Filing 12

ORDER denying 10 Motion to Dismiss. Signed by US District Judge Terrence W. Boyle on 5/27/2013. Copy sent to the plaintiff via US Mail. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
4: 13-CV -000 15-BO
APRIL MICHELE CLEMONTS
Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on the defendant's motion to dismiss [DE 10]. For the
reasons stated herein, the defendant's motion is DENIED.
BACKGROUND
On November 19,2012, the Appeals council denied the plaintiffs request for a review of
the Administrative Law Judge's (ALJ) denial of her claim for benefits. This denial rendered the
ALJ' s opinion the final decision of the Commissioner. The plaintiff filed a motion for leave to
proceed in forma pauperis on January 24, 2013. A copy of the plaintiffs complaint was attached
to her IFP motion. The plaintiff filed her complaint separately on January 29, 2013. The
defendant now seeks dismissal of the plaintiffs complaint as untimely.
DISCUSSION
Regarding the time within which a plaintiff may seek judicial review of the ALJ's
decision, 42 U.S.C. § 205(g) states:
Any individual, after any final decision of the Commissioner 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 may allow.
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Regarding the calculation ofthis sixty day period, Federal Rule of Civil Procedure 6 states, in
pertinent part:
(a) COMPUTING TIME. The following rules apply in computing any time
period specified in these rules, in any local rule or court order, or in any
statute that does not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the period is stated in days
or a longer united of time:
(A) Exclude the day ofthe event that triggers the period;
(B) Count every day, including intermediate Saturdays, Sundays, and legal
holidays; and
(C) Include the last day of the period, but if the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday.
Further, the sixty-day period does not begin until the claimant actually receives the notice. The
date of receipt is presumed to be five days after the notice date, unless there is a reasonable
showing to the contrary made to the Appeals Council. 20 C.F.R. §§ 404.901 and 422.210(c).
Here, the notice was dated November 19, 2012. Therefore, the presumed receipt date of
such notice, taking into account the rule that such periods may not end on Saturday or Sunday,
was Monday, November 26, 2012. As such, the sixty-day period commenced on the 26th and, as
December has 31 days, concluded on Friday, January 25, 2013. However, that period was tolled
on January 24,2013 when the claimant filed a motion to proceed in forma pauperis, with a
complaint included as an attachment. The sixty-day period is a statute of limitations that is not
jurisdictional and is subject to equitable tolling in limited circumstances. See Bowen v. City of

New York, 476 U.S. 467,478-80 (1986). Because the filing period was tolled while the court
considered the claimant's IFP motion, the filing ofthe complaint on January 29, 2013 was
timely. See e.g. Bishop v. Apfel, 91 F.Supp.2d 893, 894 (W.D.Va. 2000). As such, the
defendant's motion to dismiss is properly denied.

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CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is DENIED.

SO ORDERED.

This the

lf-

day of May, 2013.

)~w~~
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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