Cleland v. Astrue
MEMORANDUM DECISION granting 5 Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge Dustin B. Pead on 09/11/2013. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ALLISON A. CLELAND,
Case No. 2:12-cv-00684-DBP
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Magistrate Judge Dustin B. Pead
This matter is before the Court under 28 U.S.C. § 636(c). (Docket No. 10.) Plaintiff
appealed the Social Security Commissioner’s decision denying her claim for disability insurance
benefits (“DIB”) under Title II of the Social Security Act (“Act”). (Dkt. No. 2.) The
Commissioner filed a motion to dismiss Plaintiff’s complaint under Fed. R. Civ. P. 12(b)(1).
(Dkt. No. 5.) For the reasons set forth below, the Court interprets the Commissioner’s motion as
a motion to dismiss under Fed. R. Civ. P. 12(b)(6), and GRANTS it.
Plaintiff filed a Title II DIB application, which the Commissioner denied initially, and upon
reconsideration. (Dkt. No. 2 at 3.) Plaintiff then received a hearing before an administrative law
judge (“ALJ”), who also denied Plaintiff’s application. (Id.) Plaintiff requested that the Appeals
Council review the denial. (Id.) On May 1, 2012, the Appeals Council issued Plaintiff a notice
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denying Plaintiff’s request for review. (Dkt. No. 2-2.) 1 Seventy-one days later, on July 11,
2012, Plaintiff filed the present complaint. (Dkt. No. 2 at 5.)
STATEMENT OF RELEVANT LAW
A claimant may obtain judicial review of the Commissioner’s “final decision” denying social
security benefits. 42 U.S.C. § 405(g). However, the claimant must file a civil action seeking
judicial review within sixty days after receiving the notice of such decision. Id.; 20 C.F.R. §
422.210(c). See also Gossett v. Barnhart, No. 04-7105, 2005 WL 1181154, at *1 (10th Cir. May
19, 2005) (unpublished).
Agency regulations presume a claimant receives such notice five days after the
Commissioner issues it. 20 C.F.R. § 404.901 (“Date you receive notice means 5 days after the
date on the notice . . . .”); id.§ 422.210(c) (“[T]he date of receipt of . . . notice of the decision by
the Appeals Council shall be presumed to be 5 days after the date of such notice . . . .”).
The Commissioner moves to dismiss Plaintiff’s complaint under Fed. R. Civ. P. 12(b)(1)
because this Court allegedly lacks subject matter jurisdiction where Plaintiff filed her complaint
beyond the sixty day limit prescribed in 42 U.S.C. § 405(g). (Dkt. No. 5.) However, the sixty
day limit constitutes a statute of limitations rather than a jurisdictional bar. Gossett, 2005 WL
1181154, at *1 n.1. Therefore, the Court construes the Commissioner’s motion as a motion to
dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be
granted. See Gossett, 2005 WL 1181154, at *1 n.1 (doing the same).
When evaluating a 12(b)(6) motion, a court presumes the well-pled facts in the plaintiff’s
complaint are true, and draws reasonable inferences from those facts in the plaintiff’s favor.
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The court may
Plaintiff attached the May 1, 2012 notice to her complaint. (Dkt. No. 2-2.)
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also consider exhibits attached to the complaint. Indus. Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994). The plaintiff’s complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
ANALYSIS OF THE COMMISSIONER’S MOTION TO DISMISS
A. Whether Plaintiff Filed Timely Complaint
The Appeals Council issued the pertinent notice on May 1, 2012. (Dkt. No. 2-2.) As such,
social security regulations presume Plaintiff received the Appeals Council’s notice on May 7,
2012. 2 20 C.F.R. §§ 404.901, 422.210(c) (presuming five day receipt unless claimant reasonably
shows otherwise). However, Plaintiff tries to rebut this five day presumption. In a parenthetical
clause within her complaint, she states her counsel’s office received the notice on May 8, 2012.
(Dkt. No. 2 at 3.) 3
Even assuming Plaintiff received the notice on May 8, 2012, she failed to file her complaint
sixty days thereafter, on July 9, 2012. 4 Plaintiff untimely filed her complaint two days later, on
July 11, 2012. (Dkt. No. 2 at 5.) Accordingly, the Court concludes that Plaintiff’s failure to
timely file her complaint under 42 U.S.C. § 405(g) warrants dismissal under Fed. R. Civ. P.
12(b)(6). See Gossett, 2005 WL 1181154, at *1-2 (affirming district court’s dismissal of
complaint where the plaintiff filed complaint more than two years after Appeals Council mailed
Because the fifth day fell on Sunday, May 6, 2012, the Court counts Monday, May 7, 2012 as
the operative date. Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day is . . . Sunday . . . the period
continues to run until the end of the next day . . . .”).
Notably, Plaintiff does not allege she personally failed to receive timely notice.
Because the sixtieth day fell on Saturday, July 7, 2012, the Court counts Monday, July 9, 2012
as the operative date.
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B. Whether Equitable Tolling Applies
The Court refuses to equitably toll the sixty day statute of limitations where Plaintiff failed to
present equities to support tolling. Plaintiff does not allege she notified the Appeals Council
regarding not timely receiving the May 1, 2012 notice. Nor does Plaintiff allege she requested
more time from the Appeals Council to file her civil action. Cf. Thomas v. Astrue, No. 11-4088SAC, 2012 WL 1893562, at *1 (D. Kan. May 23, 2012) (unpublished) (noting equitable tolling
may be allowed “if a claimant filed a request for an extension of time with the Appeals Council
prior to the expiration of the 60-day time limit . . . .”). In fact, Plaintiff never responded to the
Commissioner’s motion to dismiss to explain her untimely complaint. Cf. Fleming v. Evans, 481
F.3d 1249, 1254 (10th Cir. 2007) (noting limitation periods may be tolled if a claimant
“diligently pursues his claims, and demonstrates” that “extraordinary circumstances beyond his
control” prevented him from timely filing).
For the reasons set forth above, the Court GRANTS the Commissioner’s motion to dismiss
under Fed. R. Civ. P. 12(b)(6). (Dkt. No. 5.) The Court DISMISSES Plaintiff’s complaint for
failure to state a claim upon which relief can be granted because Plaintiff failed to timely file her
complaint under 42 U.S.C. § 405(g).
Dated this 11th day of September, 2013.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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