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finding an attorney's miscalculation of the filing deadline does not constitute an extraordinary circumstance that warrants equitable tolling
Summary of this case from Davis v. ColvinOpinion
No. 10-12898 Non-Argument Calendar.
January 19, 2011.
Michel Phillips, Martin and Jones, Decatur, GA, for Plaintiff-Appellant.
J. Patrick Powers, Nadine Deluca Elder, Holly G. Grimes, Mary Ann Sloan, Susan Kelm Story, Dennis R. Williams, Office of the General Counsel, Christopher Gene Harris, Social Security Administration, Office of General Counsel, Atlanta, GA, Hugh Randolph Aderhold, Jr., Macon, GA, George F. Peterman, III, U.S. Attorney Office, Columbus, GA, for Defendant-Appellee.
Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 4:08-cv-00032-CDLGMF.
Before BARKETT, MARCUS and FAY, Circuit Judges.
Sandra Collier-Fluellen appeals from the district court's dismissal of her complaint seeking review of the Social Security Commissioner's denial of her application for disability insurance benefits. The district court dismissed her complaint on the ground that it was not timely filed within the 60-day statute of limitations under 42 U.S.C. § 405(g), and that she was not entitled to equitable tolling. On appeal, she contends that the district court erred in determining that she failed to show extraordinary circumstances warranting equitable tolling.
"The question of whether equitable tolling applies is a legal one subject to de novo review." Jackson v. Astrue, 506 F.3d 1349, 1352 (11th Cir. 2007) (citation omitted).
We have held that while "equitable tolling may apply to § 405(g)'s statute of limitations, before a court may do so it must apply `traditional equitable tolling principles.' And traditional equitable tolling principles require that the claimant demonstrate extraordinary circumstances, such as fraud, misinformation, or deliberate concealment." Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir. 2007). Thus, more than a showing of good cause is required to meet this standard, and we accordingly held in Jackson that the claimant was not entitled to equitable tolling because she failed to show that extraordinary circumstances contributed to her mistakenly filing her complaint in state rather than federal court. Id. at 1355-57.
On appeal, Collier-Fluellen emphasizes that the Social Security Administration took nearly seven years to adjudicate her claim, and that this undue delay has the effect of precluding her from filing a new administrative claim. She further points out that allowing her claim to proceed on the merits would not prejudice the Commissioner. However, it is undisputed that the reason why Collier-Fluellen's complaint was not timely filed was because her attorney miscalculated the filing deadline. Unfortunately, such negligence on the part of her attorney does not constitute an extraordinary circumstance. See id. at 1355-56 (citing Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999)). Accordingly, we must affirm.