Moye v. Commissioner Social Security Administration

Filing 22

Opinion and Order - The Commissioner's Motion to Dismiss (Dkt. 15 ) is GRANTED and this case is DISMISSED with prejudice. Signed on 7/24/2015 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRANDON MOYE,

Case No. 3:14-cv-01850-SI

Plaintiff,

OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Michael H. Simon, District Judge.

Plaintiff, Brandon Moye, pro se, maintains this action against Defendant Carolyn W.
Colvin, Acting Commissioner of the Social Security Administration. Before the Court is the
Commissioner’s Motion to Dismiss. Dkt. 15. For the reasons that follow, the Commissioner’s
motion is granted.
LEGAL STANDARD
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
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allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se
litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the
deficiencies of the complaint could not be cured by amendment.’” Karim-Panahi v. Los Angeles
Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d

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1122 (9th Cir. 2000)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint
must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” This standard “does not require ‘detailed factual allegations,’” but does demand “more
than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
Here, the Commissioner contends that dismissal is required because Plaintiff failed to file
his complaint within the 60-day statute of limitations under by 42 U.S.C. § 405(g). Although the
statute of limitations defense is usually raised in an answer, it may be raised in a motion to
dismiss “only when the running of the statute is apparent from the face of the complaint.” U.S. ex
rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013)
(quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.
2010)). “A motion to dismiss based on the running of the statute of limitations period may be
granted only if the assertions of the complaint, read with the required liberality, would not permit
the plaintiff to prove that the statute was tolled.” Supermail Cargo, Inc. v. United States, 68 F.3d
1204, 1206-07 (9th Cir. 1995) (internal citations and quotation marks omitted). In order to
dismiss a claim as untimely on a Rule 12(b)(6) motion, it must “appear[ ] beyond doubt that the
plaintiff can prove no set of facts that would establish the timeliness of the claim.” Id. at 1207.
BACKGROUND
On May 31, 2013, an administrative law judge (“ALJ”) issued a decision unfavorable to
Plaintiff on Plaintiff’s claim for benefits under Title II of the Social Security Act. On September 2,
2014, the Appeals Council sent, by mail addressed to Plaintiff’s Portland, Oregon address, notice of
its action on Plaintiff’s request for review and of Plaintiff’s right to commence a civil action within

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60 days from the date of receipt. On November 19, 2014, Plaintiff filed his Complaint in this

matter, alleging that the Commissioner improperly denied him benefits before he was able to
present new evidence of his alleged disabilities. Dkt. 2.
DISCUSSION
The Court’s review of the Commissioner’s administrative decisions is governed by
Section 405(g) and (h) of the Social Security Act, which state in relevant part:
(g) 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) The findings and decision of the Commissioner after a hearing
shall be binding upon all individuals who were parties to such
hearing. No findings of facts or decision of the Commissioner shall
be reviewed by any person, tribunal, or governmental agency
except as herein provided. No action against the United States, the
Commissioner, 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(g).
Thus, Section 405(g) and (h) operate as a statute of limitations setting the time period in which a
claimant may appeal a final decision of the Commissioner. Bowen v. City of New York, 476 U.S.
467, 479 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987). Because the time limit
set forth in section 405(g) is a condition on the waiver of sovereign immunity, it must be strictly
construed. Bowen, 476 U.S. at 479; see, e.g., Fletcher v. Apfel, 210 F.3d 510 (5th Cir. 2000)
(affirming summary judgment in favor of Commissioner for untimely filing of one day); Small v.
Colvin, 2015 WL 237115, at *2 (E.D. Cal. Jan. 16, 2015) (dismissing complaint filed ten days
late); Atherton v. Colvin, 2014 WL 580167 at *4 (N.D. Cal. Feb.12, 2014) (dismissing complaint
filed four days late); Davila v. Barnhart, 225 F. Supp. 2d 337 (S.D.N.Y. 2002) (granting motion
to dismiss complaint filed one day late because “60-day limit is a waiver of sovereign immunity
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which must be strictly construed”). “The limitations to final decisions and to a sixty day filing
period serve to compress the time for judicial review and to limit judicial review to the original
decision denying benefits, thereby forestalling repetitive or belated litigation of stale eligibility
claims.” Anderson v. Astrue, 2008 WL 4506606 *3 (E.D. Cal. Oct.7, 2008).
Further, by regulation, the Commissioner presumes a claimant receives notice five days
after the date of mailing. 20 C.F.R. §§ 404.901, 422.210(c). Therefore, to be considered timely,
Plaintiff needed to commence this action on or before November 6, 2014, after allowing five
days for mailing. Plaintiff also did not attempt to rebut the Commissioner’s presumption of
receipt five days after mailing. Plaintiff commenced this civil action by filing his Complaint on
November 19, 2014. See Dkt. 2. Accordingly, the Commissioner argues that Plaintiff’s
Complaint must be dismissed because it was filed 13 days late.
Plaintiff’s response to the Commissioner’s Motion to Dismiss does not contest this
argument. Instead, most of Plaintiff’s response involves allegations of a racially motivated hatecrime against Plaintiff in 2010 by employees of Esco Corporation, a Portland, Oregon-based
manufacturing company, and various injuries he claims to have suffered as a result of this
alleged crime. Because Plaintiff has provided the Court with no explanation for his failure timely
to comply with the requirements 42 U.S.C. § 405(g), Plaintiff’s Complaint must be dismissed.
CONCLUSION
The Commissioner’s Motion to Dismiss (Dkt. 15) is GRANTED and this case is
DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this 24th day of July, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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