Falcone v. Colvin

Filing 21

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 6/2/17. (sm)

IN THE UNITED STATES DISTICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER CHARLES FALCONE, :
No. 3:16cv1705
Plaintiff
:
:
(Judge Munley)
v.
:
:
(Magistrate Judge Carlson)
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NANCY BERRYHILL, ACTING
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is Magistrate Judge Martin C. Carlson’s report and
recommendation, which proposes denying defendant’s motion to dismiss.
Defendant has filed objections to the report and recommendation, and they are
ripe for disposition.

When plaintiff filed this action, Carolyn W. Colvin was the Commissioner of
Social Security. Accordingly, plaintiff named her as the defendant in her official
capacity. Since then, however, Colvin left her position as Commissioner. Nancy
A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. See Official Social Security Website, http://blog.ssa.gov/meet-our-newacting-commissioner/ (last accessed June 1, 2017).
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill is substituted for Carolyn W. Colvin as the defendant in this suit. Fed.
R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in
an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending. The officer’s successor is automatically substituted as a
party.”)
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Background
Pro se plaintiff Christopher Charles Falcone (hereinafter “plaintiff”) timely
navigated the legal field of social security disability benefits (hereinafter “DIB”) all
the way through the Appeals Council, which, on June 9, 2016, denied his request
to review the administrative law judge’s (hereinafter “ALJ”) decision.2
Plaintiff filed an application for DIB on September 22, 2011. The ALJ held
a hearing on the application on October 9, 2014 and denied DIB on November
26, 2014. The appeals council denied Plaintiff’s timely filed request for review on
June 9, 2016. The appeals council denial notice indicates receipt would be
assumed within five days of the notice date and advises plaintiff of his right to
appeal within sixty (60) days from the date he received the notice.3 According to
plaintiff he received the notice on June 15, 2016. Thus, the instant civil action
would be timely filed on or before August 15, 2016. Defendant filed a 12(b)(6)
motion to dismiss on March 3, 2017 asserting that plaintiff’s appeal is barred by
the statute of limitations.4
While evidence supports the appeal did arrive by U.S. Mail at the clerk of
courts office on August 15, 2016, the clerk of courts did not docket the appeal
until 10:01 am on August 16, 2016 and failed to stamp and docket the envelope.
Because the parties are generally in agreement with these brief background
facts no citations to the record are provided.
3
See 42 U.S.C. § 405(g).
4
FED.R.CIV.P. 12(B)(6)
2
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(Doc. 17 at 3).5 Therefore on its face the appeal presents as untimely, missing
the statute of limitations by one day. However, we concur with Magistrate Judge
Carlson that the circumstances before us are unique, and that consideration of
the rare-yet-traditional equitable tolling principle is de rigueur in the case before
us.
On April 26, 2017, Magistrate Carlson issued his Report and
Recommendation (Doc. 17) (hereinafter “the R&R”). After an incisive evidentiary
review, Magistrate Judge Carlson has recommended defendant’s motion to
dismiss should be denied. Defendant filed her objection to the R&R on April 28,
2017. (Doc. 18).
The parties have briefed their respective positions and the matter is ripe for
disposition.
Jurisdiction
The court has federal question jurisdiction over this Social Security
Administration appeal. See 42 U.S.C. § 1383(c)(3) (“The final determination of
the Commissioner of Social Security after a hearing under paragraph (1) shall be
subject to judicial review as provided in section 405(g) of this title to the same
extent as the Commissioner’s final determinations under section 405 of this
title.”); see also 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
“[I]n the normal course of business [the] envelope would have borne a date
stamp indicating when the complaint was received by the clerk.” (Doc. 17 at 3.)
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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. Such action shall be brought in the district court of the United States
for the judicial district in which the plaintiff resides, or has his principal place of
business . . . .”).
Standard of review
When determining the disposition of objections to a magistrate judge’s
report and recommendation, the district court must make a de novo
determination of those portions of the report against which objections are made.
28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d
Cir. 1983). We may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. Henderson v. Carlson, 812
F.2d 874, 877 (3d Cir. 1987).
The defendant's motion to dismiss is brought pursuant to Rule 12(b)(6).
This rule provides for the dismissal of a complaint, in whole or in part, if the
plaintiff fails to state a claim upon which relief can be granted. A motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure may
properly be used to challenge the timeliness of the filing of a social security
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appeal under the statute of limitations. Raffinee v. Comm’r of Soc. Sec., 367 F.
App’x 379, 380.
Courts are required to liberally construe pro se litigant’s pleadings. Higgs
v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011). The Supreme Court has held
that pro se complaints should be held “to less stringent standards than formal
pleadings drafted by lawyer.” Haines v. Kerner, 404 U.S. 519, 520 (1972). This
leniency, however, has its limits and litigants, even those proceeding pro se,
“cannot flout procedural rules – they must abide by the same rules that apply to
other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).
Discussion
The issue before the court is whether defendant has met her burden to
establish that plaintiff failed to meet the statute of limitations. The Magistrate
Judge posits no, and we agree. (Doc. 17 at 9.)
The R&R astutely delineates the evidence revealed by what is contained in
the docket:
1. The summons issued upon filing of plaintiff’s complaint, issued on
August 16, 2016 at 10:01 a.m. (Doc. 2.) This timing suggests the complaint was
timely received the day before but not fully processed until the next day, noting

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that a mailed-in pro se complaint takes longer to process than one filed in-person
by an attorney.
2. Plaintiff’s case was the first to be docketed on August 16, 2016.
3. Other cases filed by attorneys prior to plaintiff’s, on August 15, 2016,
also had the summons issued on August 16, 2016.
(R&R at 3-4.)
While Magistrate Judge Carlson found this chronology strongly suggested
the clerk received plaintiff’s complaint on August 15, 2016 and then docketed it
and issued the summons on August 16, 2016, he stopped short of calling it
conclusive.
First, defendant first argues the R&R “speculates that the complaint may
have been received by the court clerk the day before it was docketed August 16,
2016, (Doc. 11 at 1)(emphasis in original), positing the evidence is clear that the
complaint was filed on August 16, 2017. (Doc. 11 at 1). In support of her first
argument, defendant appended a declaration of Kathie Hartt, Court Case
Preparation and Review Branch 2 Office of Disability and Review Social Security
Administration. In pertinent part, the declaration sets forth that “On August 16,

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2016, a civil action was filed in the United States District Court for the Middle
District of Pennsylvania.” (Doc. 11-1 at 4).6
Next, defendant argues plaintiff had an additional five calendar days for
mailing the Appeals Council’s notice as per 20 C.F.R.§ 422.210(c). It is true that
plaintiff’s complaint would have been due August 13, 2016, which fell on a
Saturday. Defendant posits that plaintiff thereby received the benefit of an
extension until Monday, August 15, 2016 pursuant to Fed. R. Civ. P. 6(a). (Doc.
10 at 2.)7 Thus, to be timely the complaint must have been received by the clerk
for filing no later than August 15, 2016.
Defendant cites two cases for the proposition this action must be dismissed
as untimely absent direct proof the complaint was received by the clerk on or
prior to August 15, 2016: Parrott v. Comm’r of Soc. Sec., No. 9:95-CV-256, 1995
WL 750152 at *2 (E.D. Tex. Dec. 14, 1995), Report & Recommendation adopted
914 F.Supp. 147 (E.D. Tex. 1996), Kellum v. Comm’r of Soc. Sec., 295 F. App’x
47, 48-49 (6th Cir. 2008). (Doc. 10 at 2). Neither case is binding upon this court,
nor do we find them persuasive in the face of the well-reasoned R&R.

The parties do not dispute that the complaint was received through the mail.
(R&R at 14.) The question is when the clerk received the complaint. Further, the
parties do not dispute that the complaint was docketed on August 16, 2016,
which we find consistent with Ms Hartt’s declaration in pertinent part. While
undisputedly authentic, the declaration has no probative value.
7
No extensions were requested or granted in this case; plaintiff received the
benefit of Fed. R. Civ. P. 6(a).
7
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Defendant further argues that no circumstances in this case justify
equitable tolling of the statute of limitations. We disagree.
A pleading is filed when the clerk receives it. McIntosh v. Antonino, 71
F.3d 29, 36 (1st Cir. 1995). When calculating time for purposes of statutes of
limitations, the date of receipt by the clerk is controlling, and not the date of
mailing by the filer. See Heman v. Astrue, No. 2:10-CV-00570 2010 U.S. Dist.
WL 5504667 at *2 (S.D. Ohio Dec. 13, 2010), citing New Boston Dev. Co. v.
Toler, 999 F.2d 142, 142 (6th Cir.1993); FED.R.CIV.P. 5(D)(2) ( “A paper is filed by
delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing,
and who must then note the filing date on the paper and promptly send it to the
clerk.”). Report and recommendation adopted No. 2:10-CV-00570 2010 U.S.
Dist. WL 17701 (S.D. Ohio Jan. 4, 2011.) We find these cases persuasive. In
filing by mail – a common practice among attorneys as well as litigants in person
– it is axiomatic that a filer by mail has no control over how or when the clerk acts
to docket the filing.
In this case, there is no dispute that the complaint was filed by mail,
necessitating arrival at the clerk’s office in an envelope or some such similar
mailing receptacle. Normally, the clerk would stamp the envelope with the time
and date, as is the case with the pleading itself, and make it part of the docket
record. This is done precisely to avert the manner of dispute before us. Alas,
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the envelope in which the instant complaint arrived at the clerk’s office is not in
the docket record.
The law auspiciously provides a remedy under the unique facts in this
case; equity sees that as done what ought to be done. Here, equity arrives in the
form of traditional equitable tolling of the statute of limitations, specifically the 60day requirement of § 405(g), discussed in Bowen v. City of New York, 476 U.S.
467 (1986), as cited in the R&R.
Here, plaintiff was entitled to believe that when he mailed his complaint on
August 9, 20168 it would reach the clerk on or before August 15, 2016, and the
envelope in which it arrived would be properly docketed, as those in which his
previous filings were properly docketed.
While both parties in the instant case cited Bowen in their briefs, we agree
with the rationale set forth in the R&R, which appropriately applied the doctrine of
equitable tolling, as courts are required to do, even though the pro se plaintiff did
not name it in his filings opposing the motion to dismiss.
The sixty (60) day filing requirement is not a jurisdictional limit on the power
of the court, “but rather constitutes a period of limitations.” Bowen, at 478. As
defendant argued, the limitations period is a condition of the waiver of sovereign
immunity [in this case], and serves a salutary purpose in ensuring timely
That plaintiff’s representation that he mailed his complaint on August 9, 2016 is
not contradicted by defendant. See R&R at 2-3.
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submission of claims. Therefore, the sixty (60) day limitations period “must be
strictly construed.” Id. at 479.
“Application of a ‘traditional equitable tolling principle’ to the 60-day
requirement of § 405(g) is fully ‘consistent with the overall congressional
purpose’ and is ‘nowhere eschewed by congress.’” Id. at 480. Equitable tolling
should be rare and applied sparingly. Kramer v. Comm’r of Soc. Sec., 461 F.
App’x 167, 169 (3d Cir. 2012). “Tolling may be appropriate…where the plaintiff in
some extraordinary way has been prevented from asserting his or her rights…”
Cardyn v. Comm’r Soc. Sec., 66 F. App’x 394, 397 (3d Cir. 2003) quoting
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).
“The statute of limitations is an affirmative defense, and the burden of
establishing its applicability to a particular claim rests with the defendant.”
Quoting Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 486 (3d
Cir.1985), citing Melhorn v. AMREP Corp., 373 F.Supp. 1378, 1380 (M.D.
Pa.1974). Here, defendant put up a good fight, but failed to overcome the
empirical and substantial evidence uncovered in the R&R.
We are cognizant of plaintiff’s burden of establishing that equitable tolling
applies, Courtney v. La Salle Univ., 124 F.3d. 499, 505 (3d. Cir. 1977), and we
applied the relevant legal principle even though plaintiff failed to name it. Dluhos
v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).
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Conclusion
Taking all these factors into consideration, we agree with the R&R that, at a
minimum, a disputed factual issue is present with regard to whether the statute of
limitations has been satisfied. Therefore, the defendant’s motion to dismiss will
be denied and the case will be remanded to Magistrate Judge Carlson.
Date: June 2, 2017

s/ James M. Munley_______
JUDGE JAMES M. MUNLEY
United States District Court

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