Opinion
Case No. ED CV 20-254 JVS (MRW)
01-07-2021
MARY W., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
ORDER DISMISSING ACTION WITH PREJUDICE
The Court grants the government's unopposed motion to dismiss this action as untimely. Procedural History
1. This is a pro se appeal from a decision of the Social Security Administration denying disability benefits.
2. The government moved to dismiss the action as untimely. (Docket # 17.) According to the dismissal motion:
a. The agency's Appeals Council issued its final adverse decision in Plaintiff's case on September 11, 2019. (Docket # 17-1 at 26.)From this, the government argues that Plaintiff's action is untimely because it was filed three days (or one business day) late. (Docket # 17 at 2.)
b. The government calculates that the deadline by which Plaintiff was required to file her appeal in federal court was Friday, November 15, 2019.
c. Plaintiff signed and filed her complaint in federal court on Monday, November 18, 2019.
Plaintiff incorrectly filed her action in the federal court in the Southern District of California. However, because she lives in Riverside County, the action was transferred to the Central District. (Docket # 8.) --------
3. Magistrate Judge Wilner issued an order directing Plaintiff to respond to the government's motion. (Docket # 18.) Judge Wilner's order summarized the government's untimeliness argument. The order informed Plaintiff that she could: challenge the government's timeliness calculation; present a claim for equitable tolling of the statute of limitations; or seek assistance from the district court's Pro Se Clinic. (Id.) Judge Wilner specifically warned Plaintiff that failure to file an appropriate response to the motion could lead to the dismissal of the action under Local Rule 7-12.
4. Plaintiff filed a document that she described as her "opposition to the motion of the defense." (Docket # 19.) However, the substance of Plaintiff's submission addressed the merits of her claim for disability benefits and her health conditions. The materials did not respond to the government's contentions as to whether her federal appeal was timely. (Docket # 19-1.)
5. In the interests of justice, Judge Wilner gave Plaintiff another opportunity to respond to the government's dismissal motion. (Docket # 20.) Judge Wilner's order again informed Plaintiff of the consequences of failing to file a legitimate response to the government's motion.
6. Plaintiff was required to respond by December 21, 2020. (Id.) To date, Plaintiff has not filed a response to the government's dismissal motion on timeliness grounds. Relevant Law and Regulations
7. The Social Security Act provides for judicial review of agency decisions in disability benefits cases. The statute states that an individual, "after any final decision of the Commissioner of Social Security[,] may obtain a review of such decision by a civil action" filed in federal court in the district in which the person lives "commenced within sixty days after the mailing to him of notice of such decision." 42 U.S.C. § 405(g) (emphasis added).
8. Under agency regulations, the that 60-day period begins when the agency's adverse decision "is received by the individual." The date of a person's receipt of the agency notice "shall be presumed 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).
9. A plaintiff "bears the burden to rebut the presumption" as to when she received the agency's adverse decision. If she succeeds in rebutting the presumption, the burden shifts to the government to show proof of receipt at an earlier time and the commencement of the statutory 60-day filing period. Ashe v. Saul, ___ F.3d ___, 2020 WL 7690334 at *2 (9th Cir. Dec. 28, 2020) (citation omitted).
10. The timeliness provisions under the agency regulation and federal statute constitute a limited waiver of the federal government's sovereign immunity and "must be strictly construed." Bowen v. City of New York, 476 U.S. 467, 479 (1986). Traditional equitable tolling or estoppel principles can toll the limitation period under certain circumstances. Id. at 479-80; Burke v. Berryhill, 706 F. App'x 381, 382 (9th Cir. 2017). However, equitable tolling requires a considerable factual and evidentiary showing from a litigant.
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11. Local Rule 7-12 states that the "failure to file any required document [ ] may be deemed consent to the granting or denial of the motion." Analysis
12. The Court concludes that the government's unopposed dismissal motion must be granted. The assigned magistrate judge issued two orders informing Plaintiff of her obligation to respond to the government's motion. (Docket # 18, 20.) Judge Wilner also extended the deadline by which Plaintiff was to file her response, and gave her information about how pro se litigant could get help in advancing her action. Even so, though, she failed to file a recognizable opposition to the government's dismissal request. The motion is therefore unopposed under Local Rule 7-12.
13. On the merits, the government appears to be correct in asserting that the action is untimely. Plaintiff is presumed to have received notice of the agency's unfavorable decision on September 16, 2019 (five days after the September 11 date on the notice). 20 C.F.R. § 422.210(c). She then had 60 days - or until November 15 - to file her appeal in federal court. 42 U.S.C. § 405(g). It is uncontested that she actually filed this action on November 18, or after the statute of limitations expired.
14. Moreover, nothing in the record (or even in Plaintiffs purported opposition filing at Docket # 19) suggests that she is entitled to either a different date calculation or equitable tolling of the limitations period. Ashe, 2020 WL 7690334 at *2; Burke, 706 F. App'x at 382.
15. The government's dismissal motion must be granted. The action will be dismissed with prejudice as untimely under 42 U.S.C. § 405(g).
IT IS SO ORDERED. Dated: January 7, 2021
/s/_________
HON. JAMES V. SELNA
SENIOR U.S. DISTRICT JUDGE Presented by: /s/_________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE