Opinion
SA-23-CV-863-OLG (HJB)
07-24-2024
KENNITA MCGARITY, on Behalf of C.R., a Minor, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security Administration,[1] Defendant.
To the Honorable Orlando L. Garcia, United States District Judge:.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge.
This Report and Recommendation concerns the Motion to Dismiss (Docket Entry 6) filed by Defendant Commissioner of the Social Security Administration (“SSA”). Plaintiff filed this civil action seeking judicial review under 42 U.S.C. § 405(g) of the Commissioner's denial of her application for supplemental security income (“SSI”). (See Docket Entry 3, at 1.) The Commissioner moved to dismiss Plaintiff's complaint as time-barred, and Plaintiff responded. (See Docket Entries 6 and 7.) The Court converted the motion to dismiss to a motion for summary judgment and gave the parties an opportunity to provide additional argument and evidence. (See Docket Entry 8.) For the reasons that follow, I recommend that the Commissioner's converted motion (Docket Entry 6) be GRANTED.
I. Jurisdiction.
The Court has original jurisdiction over this case pursuant to 42 U.S.C. § 405(g). The undersigned has authority to issue this report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
On January 28, 2021, Plaintiff filed an application for SSI, alleging a disability. (Docket Entry 10-2, at 11.) Upon finding that Plaintiff was not disabled, an administrative law judge (“ALJ”) denied her application on December 2, 2022. (Docket Entry 6-2, at 5, 23.) Plaintiff sought review of the ALJ's decision by the SSA's Appeals Council. (Docket Entry 6-2, at 30.) On March 27, 2023, the Appeals Council sent notice to Plaintiff that it had denied her request for review. (Docket Entry 6-2, at 30.) In it, the Appeals Council warned Plaintiff that her only remaining recourse would be to file a civil action, within 60 days of receipt of the notice. (Docket Entry 6-2, at 31.) The Appeals Council also explained that, absent a showing to the contrary, Plaintiff would be presumed to have received the notice five days after the date it was sent: viz., April 1, 2023. (Docket Entry 6-2, at 31.) Applying the five-day presumption, Plaintiff's deadline to file suit was 60 days from April 1, 2023: viz., May 31, 2023.
On March 31, 2023, Plaintiff's counsel filed a written request with the Appeals Council for an additional 60 days to file a civil action. (Docket Entry 6-2, at 37.) That same day, counsel contacted Plaintiff, informing her that the Appeals Council had denied her request for review, and explaining that counsel had requested a 60-day extension to her deadline to file suit. (Docket Entry 6-2, at 40.) Trial counsel also warned Plaintiff-albeit inaccurately-that, absent the extension, her deadline to file suit would be May 26, 2023. (Docket Entry 6-2, at 40.)
On May 23, 2023-eight days before Plaintiff's deadline to file suit-the Appeals Council sent notice of its deadline extension decision to counsel. (Docket Entry 6-2, at 43.) The Appeals Council explained that it was extending Plaintiff's deadline-but only by “30 days from the date you receive this letter.” (Id.) The Appeals Council again explained that, absent a showing to the contrary, Plaintiff would be presumed to have received notice of the deadline extension five days from the date on the notice: viz., May 28, 2023. (Id.) Accordingly, absent some basis for equitably tolling the deadline Plaintiff was required to file a civil action by June 27, 2023. However, Plaintiff did not file her complaint until July 12, 2023. (See Docket Entry 1-2; Docket Entry 3-1.)
The Commissioner moved to dismiss the complaint as barred by the statute of limitations. (See Docket Entry 6.) To support its motion, the Commissioner attached a declaration from Lesha Cowell, Chief of Court Case Preparation and Review in the SSA's Office of Appellate Operations, as well as copies of the ALJ decision, the Appeals Council's denial, correspondence from counsel, and the Appeals Council's deadline extension decision. (See Docket Entry 6-1-2.) Plaintiff filed a response to the motion (Docket Entry 7), to which she attached an affidavit from counsel disputing receipt of notice of the Appeals Council's deadline extension decision (Docket Entry 71).
Because the motion and response relied on facts beyond the pleadings, the Court converted the motion to dismiss into a motion for summary judgment and ordered the parties “to present any additional argument or other material on the issues in the motion along with the filing of briefs in this matter.” (Docket Entry 8, at 2.) See Miller v. Bexar Cty., No. SA-23-CV-00085-OLG, 2024 U.S. Dist. LEXIS 54419, at *4-5 (W.D. Tex. Mar. 25, 2024) (delimiting permissible factual inquiry at 12(b)(6) stage); see also Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (“If a court considers materials outside of the pleadings, the motion to dismiss must be treated as a motion for summary judgment.”). In its brief, the Commissioner re-urged its position that Plaintiff's complaint is time-barred. (See Docket Entry 16, at 4, 15.) Plaintiff's brief presented no additional arguments or evidence against Defenant's statute-of-limitations defense or in support of equitable tolling. (See generally Docket Entry 15.)
III. Applicable Legal Standards.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact,” and that they are “entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. U.S. Postal Serv., 63 F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A disputed fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 447 U.S. at 248). When considering a motion for summary judgment, a court “must view all facts and evidence in the light most favorable to the non-moving party.” Feist v. La., Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)
The Federal Rules of Civil Procedure generally apply to Social Security appeals like this one. See SUPP. R. SOC. SEC. 1(b).
“A statute of limitations defense is an affirmative defense.” F.T.C. v. Nat'l Bus. Consultants, Inc., 376 F.3d 317, 322 (5th Cir. 2004) (citing FED. R. CIV. P. 8(c)). “An affirmative defense places the burden on the party pleading it.” Id. (citation omitted). “When the movant also carries the burden of proof at trial, as when he asserts an affirmative defense, . . . he must ‘establish beyond peradventure all of the essential elements of the . . . defense.” Guzman v. Allstate Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021) (citation and emphasis omitted). “[B]eyond peradventure” is a “heavy” standard. Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 924 (N.D. Tex. 2009) (citation omitted).
If the moving party carries its burden, “the nonmovant must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.” Mary Kay, Inc. v. Weber, 601 F.Supp.2d 839, 851 (N.D. Tex. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). In particular here, this means “facts that justify equitable tolling.” Robison v. Comm'r of Soc. Sec. Admin., No. 9:19-CV-0037, 2019 WL 2745644, at *2 (E.D. Tex. July 1, 2019) (citing Wilson v. Sec'y, Dep't of Veterans Affs., on Behalf of Veterans Canteen Servcs, 65 F.3d 402, 404 (5th Cir. 1995)); see Trinity Marine Prods., Inc. v. United States, 812 F.3d 481, 489 (5th Cir. 2016) (“[T]he claimant . . . bears the burden of justifying equitable tolling.”) (citation and internal quotations omitted). While evidence must be construed in the nonmovant's favor, “neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden.” Mary Kay, Inc., 601 F.Supp.2d at 851 (citing Anderson, 477 U.S. at 255; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
“The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence.” Arthur v. Liberty Mut. Pers. Ins. Co., No. SA-21-CV-00602-FB, 2022 WL 17824520, at *1 (W.D. Tex. Dec. 20, 2022) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)), report and recommendation adopted, No. SA-21-CA-602-FB, 2023 WL 2557392 (W.D. Tex. Feb. 3, 2023). In ruling on motions for summary judgment, the Court is required to consider only cited materials. FED. R. CIV. P. 56(c)(3); see Am. Fam. Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013) (“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence ....”) (citation omitted).
IV. Discussion.
The Commissioner argues that Plaintiff's complaint is barred by the statute of limitations because the deadline to file it was June 27, 2023, and Plaintiff waited until July 12, 2023 to do so. The undersigned agrees.
The evidence in the record confirms that the Appeals Council sent notice of its denial on March 27, 2023, which the Court presumes Plaintiff received on April 1, 2023. See 20 C.F.R. § 422.210(c) (2020) (“[T]he date of receipt of notice of denial of request for review . . . by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.”) Plaintiff's deadline to file suit was therefore May 31, 2023- 60 days after Plaintiff presumptively received notice on April 1, 2023. Indeed, the record clearly reveals that Plaintiff and counsel were aware of the original 60-day deadline. (See Docket Entry 6-2, at 37, 40.)
Counsel requested the May 31, 2023, deadline be extended by an additional 60 days-i.e., to July 30, 2023. (Docket Entry 6-2, at 37.) However, as is also clear from the record, the Appeals Council only granted a partial deadline extension-namely, 30 days from the receipt of notice of the Appeals Council's decision as to the extension request. (Docket Entry 6-2, at 43.) The Appeals Council gave notice of its extension decision on May 23, 2023 (id.)-which Plaintiff is presumed to have received five days later, on May 28, 2023. See 20 C.F.R. § 422.10(c) (2020). Thus, Plaintiff's deadline to file this lawsuit was June 27, 2023. Yet, Plaintiff waited until July 12, 2023, to file it-more than two weeks after the extended deadline. (See Docket Entry 1-2; Docket Entry 3-1.) Based on the foregoing, the Commissioner has demonstrated beyond peradventure that Plaintiff's suit is untimely under the applicable statute of limitations.
Failure to timely file a civil action for judicial review can be grounds for dismissal. Indeed, the Fifth Circuit has affirmed dismissals on limitations grounds of complaints filed far closer to the deadline than the complaint at issue here. See Fletcher v. Apfel, 210 F.3d 510, 513 (5th Cir. 2000) (one day); Thibodeaux by Thibodaux v. Bowen, 819 F.2d 76, 79 (5th Cir. 1987) (two days). That being said, the 60-day limitations period is not a jurisdictional requirement and, as such, may be equitably tolled. See Bowen v. City of N.Y., 476 U.S. 467 at 480 (1986) (“Congress . . . express[ed] its clear intention to allow tolling in some cases.”); see Harrow v. Dep't of Defense, 601 U.S. __, 2024 WL 2193874, at *3-5 (2024) (clarifying that, with the exception of “deadlines to appeal ‘from one Article III court to another,'” . . . all statutory “time bars are nonjurisdictional,” even when “framed in mandatory terms,” unless “Congress ‘clearly state[d]'” otherwise).
Because the deadline for filing is nonjurisdictional, the burden now shifts to Plaintiff to demonstrate facts that justify equitable tolling of the limitations period. See Trinity Marine Prods., Inc., 812 F.3d at 489. This is a heavy burden, as “[f]ederal courts have typically extended equitable relief only sparingly.” Michael P v. Kijakazi, No. 1:21-CV-00224-BU, 2022 WL 4939577, at *7 (N.D. Tex. Sept. 19, 2022) (quoting Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 96 (1990)). This is particularly true in Social Security cases, as the Commissioner himself has the authority to “make the determination whether it is proper to extend the period within which review must be sought.” Reed v. Berryhill, No. SA-18-CV-00237-XR, 2018 WL 5269377, at *3 (W.D. Tex. Oct. 23, 2018) (quoting Bowen 476 U.S. at480), report and recommendation adopted, No. SA-18-CV-00237-XR, 2018 WL 6790644 (W.D. Tex. Dec. 3, 2018); see 42 U.S.C. § 405(g) (setting deadline to file suit within 60 days of notice of the Commissioner's decision “or within such further time as the Commissioner . . . may allow”); 20 C.F.R. § 422.210 (2020) (reiterating 60 day deadline, “except that this time may be extended by the Appeals Council upon a showing of good cause”).
Indeed, in this case the Appeals Council did extend Plaintiff's deadline-albeit not for the full 60 days Plaintiff requested. While cases may arise where the equities in favor of tolling are “so great that deference to the agency's judgment is inappropriate,” Bowen, 476 U.S. at 480, “it is only a rare social security case which will present equities strong enough to toll limitations.” Michael P, 2022 WL 4939577 (quoting Marse v. Dep't of Health & Hum. Servs., 999 F.2d 1579, at *1 (5th Cir. 1993)).
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin, 498 U.S. at 96). In Social Security cases, the Court “may apply the doctrine of equitable tolling to extend the statute of limitations where the claimant (i) was unaware that there had been a violation giving rise to a claim, (ii) rebutted the presumption that notice of the Appeals Council denial was received within five days, (iii) received conflicting information about the filing deadline, or (iv) was unable to comprehend the appeal process because of an impediment.” Robison, 2019 WL 2745644, at *2 (citations omitted).
Three of the listed grounds for equitable tolling are clearly irrelevant here. There is nothing in the record to support a claim that Plaintiff was “unaware” of any violation that would give rise to her claim-she indisputably received the ALJ's determination, given that she challenged it before the Appeals Council. Nor is there any basis to rebut the presumption of five-day receipt for notice of the Appeals Council's decision; to the contrary, Plaintiff ‘s counsel had actual notice no later than March 31, 2023-a full day before notice would have been presumed. (See Docket Entry 6-2, at 30, 37, 40.) And, as Plaintiff was represented throughout the proceedings, there is no reason to believe that she was unable to comprehend the appeal process because of any impediment.
As to the remaining possible basis for tolling-receipt of conflicting information about the filing deadline-Plaintiff fails to raise a genuine dispute. Plaintiff disputes whether she or her attorneys received notice of the Appeals Council's extension decision, based on statements in an affidavit from her previous attorney. (See Docket Entry 7-1.) In the affidavit, prior counsel states that after making the request for an extension, she “ascertained that it would be granted for a full sixty days.” (Id.) The affidavit provides no explanation of how counsel “ascertained” this fact; to the contrary, prior counsel states that received no correspondence from the Appeals Council, and that new counsel, when filing Plaintiff's complaint, simply proceeded on the assumption that the deadline had been extended 60 days. (Id.)Prior counsel also attests that she “never had an extension request to the Appeals Council shortened before.” (Id.)
Prior counsel suggests that she assumed the full 60-day extension was granted “in an abundance of caution.” (Id.) Had counsel acted in “an abundance of caution,” however, neither she nor new counsel would not have assumed that the full extension was granted-quite the opposite.
Even construing this evidence in Plaintiff's favor, Feist, 730 F.3d at 452, Plaintiff has not carried her burden of demonstrating facts that justify equitably tolling the statute of limitations. Counsel's mistaken assumption about the extended deadline, based on the silence of the Appeals Council, does not rise to the level of receiving “conflicting information about the filing deadline.” Robison. Moreover, to establish equitable tolling, Plaintiff has the burden of establishing that she “has been pursuing [her] rights diligently. Pace, 544 U.S. 418. It is not diligent to simply assume that a requested extension has been granted. Even if neither Plaintiff nor her counsel received notice as to the Appeals Council's extension decision, counsel would have known that notices from the Appeals Council are subject to a five-day presumption of receipt. If counsel received no notice, prudence would suggest that one of them, if not both, should seek an update directly from the Council as to the extension request. Nothing in the record shows that any such action was taken.
In sum, Plaintiff has demonstrated neither diligence nor the sorts of extraordinary circumstances necessary to justify equitable tolling of the limitations period. Pace, 544 U.S. at 418. And absent equitable tolling, her complaint is untimely.
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that the Court GRANT the Commissioner's motion (Docket Entry 6) and DISMISS Plaintiff's case.
VI. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).