Cornelius v. Social Security Administration
REPORT AND RECOMMENDATION: Magistrate Judge Brown recommends that the motion to dismiss 8 be GRANTED and this case dismissed with prejudice as untimely, thus depriving the Court of subject matter jurisdiction. Signed by Magistrate Judge Joe Brown on 3/19/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
MICHAEL J. ASTRUE,
Commissioner of Social Security, )
TO: THE HONORABLE JOHN T. NIXON
REPORT AND RECOMMENDATION
recommends that the Defendant’s motion to dismiss for lack of
jurisdiction be GRANTED and this case be dismissed with prejudice.
This case against the Social Security Administration was
filed on December 7, 2012 (Docket Entry 1) and was allowed to
proceed in forma pauperis (Docket Entry 3). Subsequently, summonses
were issued to the Social Security Administration, United States
Attorney, and United States Attorney General, and duly served
(Docket Entries 5, 6).
The Commissioner filed a motion to dismiss
for lack of jurisdiction supported by a memorandum of law on
February 19, 2013 (Docket Entries 8, 9).
The motion was supported
by declarations of Patrick J. Herbst, Chief of Court Case and
Preparation and Review Branch (Docket Entry 10), which essentially
showed that on September 25, 2012, the appeals council sent the
Plaintiff by mail with a copy to his attorney notice that it had
denied his request for review and notified him of his right to
commence his civil action within 60 days from the date of the
notice (Docket Entry 10, p. 3).
A copy of the actual notice of
appeal council action was attached at Docket Entry 10-2. The letter
clearly explained that, absent a request for extension of time to
the Commissioner, the time for filing the lawsuit, allowing time
for mail, would expire 65 days after the September 25, 2012, date.
The affidavit of Mr. Herbst states that no request for an
extension of time to file the civil action was received prior to
December 7, 2012.
A request for more time was made on January 22,
council, denied that request (Docket Entry 10-1).
As of the date of this report and recommendation no
response to this motion has been filed. Even though under the Local
Rules the failure to object can be taken to mean that there is no
opposition to the motion, the Magistrate Judge has, nevertheless,
reviewed the matter to insure that there are grounds for granting
The Government’s memorandum and supporting affidavit
correctly states the law.
The Court of Appeals for the Sixth
Circuit has upheld the 60-day time limitation. This time limit is
subject to equitable tolling, rather than being a jurisdictional
Biron v. Harris, 668 F.2d 259 (6th Cir. 1982).
in this case establishes that to be timely the action had to be
started on or before November 29, 2012. That did not happen.
The Magistrate Judge does not find that the Plaintiff has
made a showing that there should be equitable tolling in this
The only request for an extension of time came well after
the case was filed.
In the letter requesting an extension of time
to file suit (Docket Entry 10-3) dated January 22, 2013, the only
ground stating for an extension of the filing deadline was that
Plaintiff’s attorney believed that the Plaintiff was disabled and
that the interest of justice would be achieved if the request for
an extension was granted. This letter in no way justifies equitable
tolling by showing some unusual event or excusable neglect that
prevented the filing of the case within the prescribed time limit.
Absent some justification, the Magistrate Judge does not
believe that there is any showing that would warrant equitable
In the case of Bowen v. City of New York, 476 U.S. 467,
480-81 (1986), the Supreme Court held that the initial decision to
toll was up to the Social Security Administration and that it would
be a rare case where tolling would be appropriate.
In order to
reverse the Commissioner’s decision, the equity in favor of tolling
must be so great that deference to the agency’s judgement would be
In this case no such justification is shown as to why the
case was not filed within the prescribed time limit.
recommends that the motion to dismiss (Docket Entry 8) be GRANTED
and this case dismissed with prejudice as untimely, thus depriving
the Court of subject matter jurisdiction.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
Recommendation in which to file any written objections to this
Recommendation with the District Court.
Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 18th day of March, 2013.
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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