Hudak v. Colvin

Filing 17

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 10/15/14. (sc)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY HUDAK,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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No. 3:13-CV-02212
(Judge Kane)

MEMORANDUM AND ORDER
The above-captioned action is an appeal pursuant to 42
U.S.C. § 405(g) of a decision of the Commissioner of the Social
Security Administration denying Plaintiff Jeffrey Hudak social
security disability insurance benefits. On November 1, 2013, the
Commissioner filed a motion to dismiss the complaint on the
grounds that it was untimely filed.
The Social Security Act requires that an applicant for
social security disability benefits who is denied such benefits
file a civil action with the appropriate federal district court
within sixty days after the mailing to the applicant a notice of
the final decision of the Commissioner. 42 U.S.C. § 405(g).
According to the Commissioner’s regulations, an applicant for
disability benefits may obtain review of the final decision of the
Commissioner in federal court so long as a civil action is
instituted within 60 days after receipt of the Appeals Council’s
notice of denial of a request for review.

20 C.F.R. § 422.210

(a), (c) (2009).

The date of receipt of the notice of denial of a

request for review by the Appeals Council is considered to be 5
days after the date of such notice, unless there is a reasonable
showing to the contrary.

20 C.F.R. § 422.210(c).

Here, the final decision of the Commissioner was issued
on June 13, 2013, and on that date a copy of the decision was
mailed to Hudak at his address of record. Consequently, it was
presumed that Hudak received the notice on Tuesday, June 18, 2013.
Hudak thus had until August 19, 2013, to file a civil action in
federal court.

Hudak, however, did not file his complaint until

Thursday, August 22, 2013, 3 days after the deadline.
There is a procedure under the Social Security
regulations for obtaining, for good cause, an extension of time of
the 60-day limitation period by applying to the Appeals Council.
20 C.F.R. § 422.210(c).

Hudak, prior to filing the present

action, did not take advantage of that procedure.
Hudak’s counsel conceded the untimeliness of the
complaint but argued that it should be excused because of clerical
error in his office or in the alternative the case stayed to allow
him to seek permission from the Appeals Council to proceed with
his case.

Hudak offered no explanation as to why he was unable to

file a civil action in a timely manner or why the 60-day filing
period should be equitably tolled other than counsel’s negligence.
However, Hudak argued that we should stay the case to
give him an opportunity to request an extension from the Appeals
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Council. Thus, on February 28, 2014, we stayed the proceedings
until April 30, 2014, to give Hudak an opportunity to file a
request for extension with the Appeals Council.

On April 22,

2014, Hudak informed the court that the Appeals Council denied his
request for an extension of time in which to file a civil action.
In light of that denial the court directed Hudak to show cause why
his complaint should not be dismissed as untimely.
On June 9, 2014, Hudak filed a brief in which he again
argues that his counsel’s negligence is a basis to equitably toll
the 60-day statute of limitations.

Mere negligence by an attorney

is not a basis for equitable tolling of the 60-day statute of
limitations. Hammonds v. Bowen, 870 F.2d 446,448 (8th Cir.
1989)(“We have found no authority to support an exception to the
sixty-day requirement for a claimant whose attorney fails to
appeal within that time.”). In a similar situation, the Third
Circuit Court of Appeals has held that mere negligence of an
attorney is not sufficient to toll the 90-day period governing the
filing of a lawsuit after receiving a right-to-sue letter from the
Equal Employment Opportunity Commission. Rockmore v. Harrisburg
Property Service, 501 Fed. Appx. 161, 164 (3d Cir. 2012).

Instead

Hudak must show that he was in some “extraordinary way” prevented
from exercising his right to appeal. Id.

The conduct of the

attorney must go beyond “garden variety neglect.” Id.

Other than

asserting counsel’s negligence in meeting the deadline, Hudak has
not articulated any circumstances which would permit equitable
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tolling of the 60-day period for filing a complaint in this court.
Therefore, the court will dismiss Hudak’s complaint as untimely.
An appropriate order follows.

S/ Yvette Kane
Yvette Kane
United States District Judge

Date: October 15, 2014

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