Williams v. Commissioner Social Security Administration
Opinion and Order: Commissioner's Motion to Dismiss for Failure to State a Claim 15 is denied. Signed on 11/14/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALEXANDER J. WILLIAMS,
Civ. No. 6:16-cv-01543-MC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Plaintiff, Alexander J. Williams, seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his claim for Supplemental Security
Income under Title XVI of the Social Security Act. The Commissioner has moved to dismiss
Plaintiff’s action as untimely. The Court agrees that this action was commenced after the
prescribed sixty-day statutory window for seeking judicial review. Nevertheless, because the
Commissioner failed to raise the statute of limitations in its Answer, it has been waived as an
affirmative defense. The Commissioner’s Motion to Dismiss is therefore DENIED.
Plaintiff filed his Complaint on July 29, 2016. The action followed an adverse decision
by an Administrative Law Judge and denial of Plaintiff’s request for review by the Appeals
Council of the Office of Disability Adjudication and Review. Tr. 1-4, 10-24. In its Notice of
Denial of Review, the Appeals Council informed Plaintiff and his then-attorney, Richard Sly,
that the time for filing a civil complaint would expire sixty days after Plaintiff’s receipt of the
1 – OPINION AND ORDER
notice unless Plaintiff expressly requested additional time from the Appeals Council. Tr. 2. The
notice also informed Plaintiff that, absent a showing to the Appeals Council that it had been
received later, there was a presumption that he had received the notice five days after the date
listed thereupon. Tr. 2. Under that presumption, Plaintiff’s Complaint was due by July 27, 2016.
The parties do not dispute that Plaintiff’s Complaint was filed sixty-seven days after the
date on the Appeals Council notice. Pl.’s Resp. 2. Although Plaintiff’s new attorney, Richard
McGinty, contacted the Commissioner regarding the issue of timeliness after Plaintiff had
already filed his Complaint, the record does not reflect a clear request by Mr. McGinty or assent
by the Commissioner with respect to an extension of time to commence the present action.
McGinty Decl. Ex. 2.
This fact notwithstanding, the Commissioner filed an Answer to
Plaintiff’s Complaint on February 17, 2017, in which it admitted Plaintiff’s allegation that his
action was commenced within the appropriate window for judicial review. Def.’s Answer ¶ 1. It
was only after Mr. McGinty contacted the Commissioner a second time with concerns about the
timeliness of Plaintiff’s Complaint that the Commissioner filed its Motion to Dismiss on August
2, 2017. See McGinty Decl. Ex. 3. That motion is now before the Court.
The Commissioner has waived the statute of limitations as an affirmative defense.
Plaintiffs must initiate judicial review of an adverse final decision by the Commissioner “within
sixty days after the mailing . . . of such decision or within such time as the Commissioner may
allow.” 42 U.S.C. § 405(g). Although not framed as such in the Social Security Act, the
Supreme Court has construed this sixty-day filing period as a statute of limitations, not a
jurisdictional requirement. Bowen v. City of New York, 476 U.S. 467, 478 (1986). Under the
Federal Rules of Civil Procedure, a statute of limitations is an affirmative defense which must be
2 – OPINION AND ORDER
raised in a defendant’s answer. Fed. R. Civ. P. 8(c)(1). If a statute of limitations, like any other
affirmative defense, is not asserted in a defendant’s answer, then it is forfeited and cannot later
be raised. Wood v. Milyard, 566 U.S. 463, 470 (2012). This general rule applies equally in civil
actions under the Social Security Act. Weinberg v. Salfi, 422 U.S. 749, 764 (1975).
In the present case, the Commissioner failed to assert the statute of limitations as an
affirmative defense in its Answer. To the contrary, it actually admitted Plaintiff’s allegation that
the Complaint was timely filed. Def.’s Answer ¶ 1 (“Defendant admits the allegations in
Paragraph[ ] 1 . . . of the Complaint”); see also Crest Hill Land Dev., LLC v. City of Joliet, 396
F.3d 801, 805 (7th Cir. 2005) (holding that, like a stipulation, an admission in an answer
“constitutes a binding judicial admission”). The issue of timeliness was raised for the first time
in the Commissioner’s Motion to Dismiss. Under Federal Rule of Civil Procedure 8(c), this
failure to affirmatively plead the statutory time limitation constituted a waiver of that defense.
The Commissioner’s attempt to raise the statute of limitations for the first time in its Motion to
Dismiss is therefore futile. It is a simple application of Federal Rule of Civil Procedure 8(c) to
conclude that the Commissioner’s Motion to Dismiss must be denied.
For the foregoing reasons, the Commissioner’s Motion to Dismiss is DENIED.
It is so ORDERED and DATED this 14th of November, 2017.
_s/Michael J. McShane
Michael J. McShane
United States District Judge
3 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?