Peeler v. Colvin
Filing
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ORDER granting 12 Motion to Dismiss ; affirming 15 Memorandum and Recommendations.. Signed by District Judge Max O. Cogburn, Jr on 1/5/2016. (chh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00545-MOC-DLH
ROBERT D. PEELER,
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.
ORDER
THIS MATTER is before the court on review of a Memorandum and
Recommendation (“M&R”) issued in this matter (#15). In the M&R, the magistrate judge
advised the parties of the right to file objections within 14 days, all in accordance with 28,
United States Code, Section 636(b)(1)(c). Objections have been filed within the time
allowed. See Pl. Objections (#16).
The Federal Magistrates Act of 1979, as amended, provides that “a district court
shall make a de novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby
v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may be
dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo
review is not required by the statute “when a party makes general or conclusory objections
that do not direct the court to a specific error in the magistrate judge’s proposed findings
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and recommendations.” Id. Moreover, the statute does not on its face require any review
at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149
(1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for
the final determination and outcome of the case, and accordingly the court has conducted
a careful review of the magistrate judge’s recommendation.
FINDINGS AND CONCLUSIONS
I.
Background
In this case, the retained attorney did not timely file a federal social security
complaint. Magistrate Judge Howell in his M&R noted that the plaintiff “does not dispute
that his Complaint is not timely.” (#15) at 4. The magistrate judge then noted that the
complaint is time-barred without the application of the principle of equitable tolling and
would be dismissed. Id. at 3. Finding that equitable tolling was inapplicable, the magistrate
judge recommended that the court dismiss the suit. Id. at 4.
The plaintiff has filed two objections to the magistrate judge’s M&R. Pl. Objections
(#16). Plaintiff’s first objection is it was error to find that equitable tolling did not apply.
(#16) at 1. In plaintiff’s argument, he contends the principle should apply here pursuant to
the Second Circuit’s decision in Torres v. Barnhart, 417 F.3d 276 (2nd Cir. 2005).
Plaintiff’s second objection relates to equal protection. (#16) at 2.
II.
Discussion
A.
First Objection
With regard to plaintiff’s first objection, the plaintiff claims that social security
regulations and policies provide for the consideration of circumstances that kept a claimant
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from making a timely request. See 20 C.F.R. § 404.911; Program Operations Manual
System GN 03101.020, available at http://policy.ssa.gov/poms.nsf/lnx/0203101020.
Further, the plaintiff argues the plaintiff himself could not have known that his attorney’s
office had erred and he could not have known of the need to file timely.
In support of his argument, he cites to the Second Circuit’s opinion in Torres. (#16)
at 2. In Torres, the Court of Appeals for the Second Circuit held that the doctrine of
equitable tolling permits courts to deem filings timely where the litigant can show that he
has been pursuing his rights diligently and that some extraordinary circumstance stood in
his way. While acknowledging that failure of an attorney to comply with the timely filing
requirements of the Social Security Act did not “necessarily constitute an ‘extraordinary
circumstance’ warranting equitable tolling,” 417 F.3d at 280, the appellate court held that
the court should have conducted a hearing and there considered whether a “legallyignorant, linguistically-challenged” -- but otherwise diligent -- claimant’s ability to file a
complaint had been “stymied” by “being seriously misled by an attorney in whom he
placed his trust.” Id. The Second Circuit had, however, previously held that “attorney error
[is] inadequate to create the ‘extraordinary” circumstances equitable tolling requires.”
Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001). While a decision from the Second
Circuit does not bind this court, it can, absent more particular guidance from the Supreme
Court or Fourth Circuit, be a persuasive authority that the court may look to when making
its determination. An unpublished decision from elsewhere within the Fourth Circuit is
similarly persuasive.
The Fourth Circuit and Supreme Court have, however, provided this Court with
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ample guidance. Before determining whether the filing deadline should be tolled, this
Court is first tasked with understanding the nature of the 60-day filing requirement. This
requirement is not jurisdictional, but constitutes a period of limitations which can be
waived or enlarged by the Commissioner. Bowen v. City of New York, 476 U.S. 467
(1986). Moreover, the 60-day filing requirement is a condition placed on Congress’s
waiver of federal sovereign immunity and must be strictly construed. Id. Although strictly
construed, this statute of limitations is “unusually protective” of claimants, with the
Commissioner being vested with the authority to toll the 60-day period on a case-by-case
basis. Heckler v. Day, 467 U.S. 104 (1984). Here, the Commissioner has specifically
elected not to toll the 60-day period. While deference is given to the final determinations
of the Commissioner, “cases may arise where the equities in favor of tolling the limitations
period are so great that deference to the agency's judgment is inappropriate.” Bowen, 476
U.S. at 480. Ultimately, the Supreme Court determined that “traditional equitable tolling
principle[s]” apply to Section 405(g)’s 60-day filing deadline. Id.
Turning to those traditional equitable principles, the Supreme Court has held that
they “do not extend to what is at best a garden variety claim of excusable neglect.” Irwin
v. Dept of Veterans Affairs, 498 U.S. 98 (1990) (holding that equitable tolling did not apply
where petitioner's lawyer was absent from the office when the EEOC notice was received).
The Fourth Circuit has held that “a mistake by a party's counsel in interpreting a statute of
limitations does not present the extraordinary circumstance beyond the party's control
where equity should step in to give the party the benefit of his erroneous understanding.”
Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000) (applying the holding to a federal
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habeas petition).
More particularly, the Fourth Circuit has held that under the extraordinary
circumstances test, a litigant is only entitled to equitable tolling where he presents: “(1)
extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that
prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
There, the Fourth Circuit made it clear that “the actions of Rouse’s attorney are attributable
to Rouse, and thus do not present “circumstances external to the party's own conduct.” Id.
at 249 (citation omitted). The appellate court went on to explain that “counsel's errors are
attributable to Rouse not because he participated in, ratified, or condoned their decisions,
but because they were his agents, and their actions were attributable to him under standard
principles of agency.” Id. (footnote omitted).
Thus, what plaintiff has asked this court to do in the form of an objection, to wit, to
overrule the magistrate judge’s application of clear Fourth Circuit law based on a Second
Circuit panel decision, is not appropriate. In accordance with well-settled principles of
deference and precedent, this court must follow the clear guidance of the Court of Appeals
for the Fourth Circuit as well as the Supreme Court. Here, counsel’s error in failing to file
the Complaint with this court within 60-days is attributable to the claimant under Rouse.
While this Court would prefer that such was not the law and that plaintiff’s claim could be
heard on the merits, it is bound to follow the decisions of the Fourth Circuit and the
Supreme Court. Further, the court is unable to find other circumstances that would temper
the result mandated by Bowen, Harris, and Rouse and allow for equitable tolling in this
case. In addition, this was not an “unavoidable circumstance” as defined in the relevant
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social security regulations or policies. Plaintiff’s complaint is time-barred.
B.
Second Objection
Plaintiff’s second objection regards equal protection. In plaintiff’s argument, he
contends that in three other cases where this same attorney missed the filing deadline the
Commissioner found good cause to extend the time to file under Section 405(g) and granted
those claimants discretionary relief. Further, plaintiff indicates that the Appeals Council
statement denying the request for extension of time did not provide the court with findings
and determinations to permit judicial review. Pl. Objections (#16) at 2-3.
First, the facts underlying those other three cases and informing the Commissioner’s
other decisions are not before this court. Second, the Commissioner's discretionary refusal
to find good cause for plaintiff's untimely request for Appeals Council review is not subject
to judicial review. Adams v. Heckler, 799 F.2d 131, 133 (4th Cir. 1986). See also 20 C.F.R.
§§ 404.903(j), 416.1403(a)(8). Moreover, for an equal protection claim to arise, plaintiff
would have to be able to plausibly allege that the Commissioner’s decision was based on
some unlawful consideration, such as race, not just that the decision was wrong or
inconsistent with discretionary decisions in other cases. Whren v. United States, 517 U.S.
806, 813 (1996).
III.
Conclusion
After careful review, the court determines that the recommendation of the
magistrate judge is consistent with and supported by current Fourth Circuit and Supreme
Court case law. Further, the factual background and recitation of issues is supported by
the applicable pleadings.
Based on such determinations, the court will affirm the
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Memorandum and Recommendation and grant relief in accordance therewith.
ORDER
IT IS, THEREFORE, ORDERED that the plaintiff’s Objections (#16) are
OVERRULED, the Memorandum and Recommendation (#15) is AFFIRMED,
defendant’s Motion to Dismiss (#12) is GRANTED, and plaintiff’s case is DISMISSED
as time-barred.
The Clerk of Court is instructed to enter a Judgment consistent with this opinion.
Signed: January 5, 2017
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