Opinion
17 Civ. 3689 (PAE)
2018-12-04
Angela MONTGOMERY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER
Before the Court is the September 11, 2018 Report and Recommendation of Magistrate Judge Robert W. Lehrburger, recommending that the Court deny the Commissioner of Social Security's motion to dismiss this action as untimely. Dkt. 22 (the "Report"). For the following reasons, the Court adopts the Report in full.
I. Background
The Court incorporates by reference the summary of the facts and procedural history provided in the Report. See Report at 1–7. The Court also notes that, the day before Judge Lehrburger filed his Report, the Commissioner of Social Security filed a letter motion seeking leave to withdraw the motion to dismiss, effectively achieving the same result as recommended by the Report. See Dkt. 21.
II. Discussion
In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Ruiz v. Citibank, N.A. , No. 10 Civ. 5950 (KPF) (RLE), 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014) (quoting King v. Greiner , No. 02 Civ. 5810 (DLC) (AJP), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009), aff'd 453 Fed. App'x 88 (2d Cir. 2011) ); see also, e.g., Mims v. Walsh , No. 04 Civ. 6133 (BSJ) (FM), 2012 WL 6699070, at *2 (S.D.N.Y. Dec. 23, 2012) (quoting Edwards v. Fischer , 414 F. Supp. 2d 342, 346–47 (S.D.N.Y. 2006) ).
Because neither party has submitted objections to the Report, review for clear error is appropriate. Careful review of Judge Lehrburger's thorough and well-reasoned Report reveals no facial error in its conclusions. The Court, therefore, adopts the Report in its entirety.
In addition, the Report expressly states that "failure to file timely objections will preclude appellate review." Report at 19. Accordingly, each party's failure to object to the Report operates as a waiver of appellate review. See Monroe v. Hyundai of Manhattan & Westchester , 372 F. App'x 147, 147–48 (2d Cir. 2010) (summary order) (quoting Caidor v. Onondaga Cnty. , 517 F.3d 601, 604 (2d Cir. 2008) ; Frank v. Johnson , 968 F.2d 298, 300 (2d Cir. 1992) ).
CONCLUSION
For the reasons stated herein, the Court adopts the Report in full. Defendant's motion to dismiss is hereby denied, and the case shall proceed on the merits. To that end, the Court directs defendant to file the certified administrative record in this case by December 11, 2018.
The Court respectfully directs the Clerk of Court to terminate the motion pending at docket 21.
SO ORDERED.
REPORT AND RECOMMENDATION
ROBERT W. LEHRBURGER, United States Magistrate Judge. TO THE HONORABLE PAUL A. ENGELMAYER, United States District Judge:
Plaintiff Angela Montgomery, proceeding pro se , filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a decision of the Commissioner of Social Security (the "Commissioner") denying her applications for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act") and for supplemental security income ("SSI") under Title XVI of the Act. The Commissioner has moved to dismiss the action, or, alternatively, for summary judgment, on the basis that Montgomery filed this action one day too late. For the following reasons, I recommend that the Commissioner's motion be DENIED.
On September 10, 2018, in the wake of the evidentiary hearing described below, the Commissioner requested leave to withdraw its motion to dismiss and permission to proceed on the merits. Because of the public interest in issuance of this opinion, the request to withdraw the motion is denied. And because of the resolution of the motion to dismiss is in favor of Montgomery, the request to proceed on the merits should be granted.
Background
A. Procedural Background
Montgomery filed an application for DIB and SSI on September 25, 2015, based on a variety of alleged impairments. (Social Security Administration Decision ("Decision"), attached as Ex. 1 to Declaration of Nancy Chung dated June 27, 2017 ("Chung Decl."), at 1. ) Montgomery requested and received an administrative hearing at which she was represented by counsel. (Decision at 1.) On February 3, 2017, the Administrative Law Judge ("ALJ") reviewing the matter issued an unfavorable decision denying Montgomery's applications for DIB and SSI. (Chung Decl. ¶ 3(a); Decision at 1.) Montgomery then requested review of the decision by the Appeals Council. (Chung Decl. ¶ 3(a).)
Nancy Chung is the Acting Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations, Office of Disability and Review, Social Security Administration. (Chung Decl. at 1.)
The Appeals Council denied Montgomery's request for review and mailed Montgomery a notice of its decision on March 10, 2017. (Chung Decl. ¶ 3(a); Notice of Appeals Council Action ("Appeals Council Notice"), attached as Ex. 2 to Chung Decl., at 1.) The notice advised Montgomery of her time to file a civil action challenging the decision. (Chung Decl. ¶ 3(a); Appeals Council Notice at 2.) The notice stated that Montgomery had the right to commence a civil court action within sixty days of receipt of the notice and that the date of receipt by Montgomery would be presumed to be five days after the date of the notice unless she could show that she did not receive the notice within the five-day period. (Appeals Council Notice at 2.) The notice also informed Montgomery that if she could not file a civil action within sixty days, she could ask the Appeals Council to extend her time to file if she had a good reason for needing more time. (Appeals Council Notice at 3.) The notice further advised that she must make the request for an extension in writing. (Appeals Council Notice at 3.) The Social Security Administration sent the notice by mail to Montgomery at her home address and sent a copy to her attorney. (Chung Decl. ¶ 3(a); Appeals Council Notice at 1, 3.) Montgomery never requested an extension of time to file a civil action. (Chung Decl. ¶ 3(b).) By letter dated March 20, 2017, Montgomery's attorney informed her that he was ending his representation of Montgomery and would not file an appeal to the United States District Court. (Complaint at 37. ) The attorney's letter informed Montgomery that she had 65 days to file a civil action and that "[t]his means that the time you will have to file a Summons and Complaint to appeal the denial of benefits will expire on May 14, 2017." (Complaint at 37.) The letter also explained that if Montgomery did not retain another attorney, she could instead appeal the denial of benefits herself and that the Pro Se Intake Unit of the Southern District of New York "will be happy to help you." (Complaint at 37.)
Because the exhibits in Montgomery's Complaint are not numbered, the Court refers to the page numbers generated by the Court's Electronic Files System.
According to Montgomery, she received the "denial of disability documents" from her attorney on March 20, 2017, the same day the attorney's letter is dated. (Declaration of Angela Montgomery dated Oct. 30, 2017 ("Montgomery Decl."), at 1. ) According to Montgomery, she later went to the Southern District Pro Se Office on Friday May 12, 2017, to file the papers for this action. (Montgomery Decl. at 1-2; Email.) Montgomery asserts that when she tried to file the papers, the clerk told her the papers were missing a page and that because it was Friday afternoon and May 14 fell on a Sunday, Montgomery could return "the following week" with the complete set of papers. (Montgomery Decl. at 1-2.) The clerk further told Montgomery that Montgomery's "count" started on the date that she received her documents from her lawyer on March 20, 2017. (Montgomery Decl. at 2.) Montgomery returned to the Court the next week and filed this action on Tuesday May 16, 2017. (Montgomery Decl. at 2.)
Montgomery filed her declaration in opposition to the Commissioner's motion to dismiss on October 30, 2017. Prior to that, on October 8, 2017, Montgomery sent an email received by the Southern District's Pro Se Office and filed on the docket of this case. (Email of Angela Montgomery ("Email"), Dkt. 15.) The email is unsworn. The statements in the email, however, are largely consistent with the statements in Montgomery's declaration, and the Court does not find any material inconsistency between the two.
On August 31, 2017, the Commissioner moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, alternatively, for summary judgment pursuant to Rule 56, arguing that Montgomery filed her action one day too late. Montgomery submitted an opposing declaration on October 30, 2017, and the Commissioner submitted a reply on November 13, 2017. This Court then issued an Order directing Montgomery to submit an additional response setting forth why she did not timely receive the notice mailed directly to her by the Commissioner and to attach and provide any evidence demonstrating that the notice was late. (Order dated May 24, 2018.) The Order explained that courts have held that a plaintiff's bare assertion in a declaration that the notice was received late is insufficient. The Order provided examples of instances where plaintiffs presented evidence to overcome the presumption of receipt in five days. On June 12, 2018, Montgomery responded with a one-paragraph letter saying that she "subtracted weekends," that "my count began the day that I received the papers in the mail," and that "I have no way to predict how long the mail sat in the mail box or post office." (Letter of Angela Montgomery dated June 12, 2018.) Montgomery did not submit any supporting evidence with her letter. In light of the factual dispute surrounding the timing of Montgomery's filing, the Court set an evidentiary hearing to address the events and actions relevant to when she filed this action. (Order dated July 30, 2018.)
Evidentiary hearings are commonly held to determine equitable tolling issues. See, e.g., Torres v. Barnhart , 417 F.3d 276, 277, 280 (2d Cir. 2005) (holding that district court's failure to hold evidentiary hearing was abuse of discretion where alleged facts, if true, would have established grounds for equitable tolling of filing deadline for SSI action); Wen Liu v. Mount Sinai School of Medicine , No. 09 Civ. 9663, 2013 WL 950761, at *2-4 (S.D.N.Y. March 12, 2013) (district court held evidentiary hearing to probe plaintiff's assertions that she was misinformed by pro se clerk about 90-day deadline for filing civil action after receiving right-to-sue letter from Equal Employment Opportunity Commission); Rodriguez v. Barnhart , No. 01 Civ. 3411, 2002 WL 31875406, at *7 (S.D.N.Y. Dec. 24, 2002) (directing that evidentiary hearing be held to determine, among other things, SSI claimant's efforts to comply with procedural requirements for filing complaint and the content and consequence of her interactions with the Pro Se office).
B. The Evidentiary Hearing
The hearing was held on August 28, 2018. Montgomery was the only witness to testify on her behalf. The government questioned Montgomery but presented no witnesses. Montgomery's testimony was largely consistent with the explanations previously given in her declaration in opposition to the motion to dismiss and in her letter to the Court. The hearing, however, did reveal some additional facts.
Montgomery is 55 and lives on Nicholas Avenue in New York, New York. Among other ailments, she has sarcoidosis and neuropathy, for which she takes medication. (Transcript dated August 28, 2018 ("Tr."), at 21-22.)
Sarcoidosis is "the growth of tiny collections of inflammatory cells (granulomas ) in different parts of your body – most commonly the lungs, lymph nodes, eyes and skin." Sarcoidosis , Mayo Clinic (March 23, 2018), https://www.mayoclinic.org/diseases-conditions/sarcoidosis /symptoms-causes/syc-20350358.
With respect to whether and when Montgomery received notice of the Appeals Council decision, Montgomery testified that she could not remember whether or not she received a copy of the notice sent directly to her from the Social Security Administration in addition to the copy provided to her by her attorney. (Tr. at 12.) Montgomery confirmed that the address on the Appeals Council notice is her address (indeed, she has lived there all her life). (Tr. at 12.) She also confirmed that she had previously received mailings to that address from the Social Security Administration, including in 2017, and that she checks her mailbox "about twice a week." (Tr. at 20, 24.)
As for her actions following her receipt of notice, Montgomery testified that she took no steps toward filing an action until May. (Tr. at 13-14.) She testified that there were days during the period between March 20 and May 2017 when she could have gone to the Courthouse to ask questions of the Pro Se office or complete papers for filing, although there were more days during that period when she was too sick to do so. (Tr. at 21-24.) Eventually, in May, Montgomery had a phone discussion with the Pro Se office about what she needed to do to file her action. (Tr. at 14.) Montgomery then collected what she believed were the necessary papers and on Friday May 12, 2017, went to the Courthouse with the intent to file her action. (Tr. at 13-15.) Consistent with her prior written statements, Montgomery testified that the person she spoke with at the Pro Se office told Montgomery she needed an additional document and that Montgomery could go home to get it and return "next week" to file the action. (Tr. at 16-17.) The Pro Se clerk did not specify a date or day by which Montgomery had to return the following week. (Tr. at 17.) Rather, the Pro Se clerk told Montgomery that her deadline to file was sixty days from the date Montgomery received the March 20, 2018 letter from her attorney. (Tr. at 16.) Montgomery did not know the name of the Pro Se clerk but recalled that she was an African American woman. (Tr. at 16.)
Overall, the Court found Montgomery to be credible. As noted, her testimony was generally consistent with prior statements, and her testimony largely was internally consistent. At the same time, Montgomery could not recall a number of details, and on a few occasions, she seemed not to understand questions being asked until repeated or clarified.
Legal Standards
A. Statute of Limitations
The exclusive remedy for a plaintiff who seeks judicial review of the Commissioner's final decision is provided for by 42 U.S.C. §§ 405(g) - (h) (DIB), 1383(c)(3) (SSI). See Wong v. Bowen , 854 F.2d 630, 631 (2d Cir. 1988). The provisions set forth that a plaintiff must commence his or her civil action within a sixty-day period or "within such further time as the Commissioner of Social Security may allow." 42 U.S.C. § 405(g). The Commissioner's regulations set forth that the sixty-day period begins on the date the Appeals Council notice is received, and, absent a "reasonable showing to the contrary," a plaintiff is presumed to have received the notice five days after the date of the notice. 20 C.F.R. § 422.210(c) ; see Wong , 854 F.2d at 631 ; Borrero v. Colvin , No. 14 Civ. 5304, 2015 WL 1262276, at *3 (S.D.N.Y. March 19, 2015) (collecting cases). A plaintiff's complaint must be received by the court clerk's office within the sixty-day period. See Zerilli-Edelglass v. New York City Transit Authority , 333 F.3d 74, 78 (2d Cir. 2003).
Section 1383(c)(3), covering SSI, provides that a final determination of the Commissioner as to SSI is "subject to judicial review as provided in [42 U.S.C. § 405(g) ] to the same extent as the Commissioner's final determinations under [42 U.S.C. § 405 ]."
Because the limitations period "defines the terms on which the United States waives its sovereign immunity and consents to be sued, it is strictly construed" even where the delay is minor and the plaintiff is pro se. Davila v. Barnhart , 225 F. Supp. 2d 337, 338 (S.D.N.Y. 2002) ; see also Randell v. United States , 64 F.3d 101, 106 (2d Cir. 1995) ; Borrero , 2015 WL 1262276, at *3 (collecting cases). Therefore, "[f]ailure to file a complaint within the statutory limitation most often requires dismissal of the case...." Borrero , 2015 WL 1262276, at *3. And while a plaintiff's pro se status generally merits a degree of leniency, it does not excuse non-compliance with statutory deadlines. See Hakala v. J.P. Morgan Securities, Inc. , 186 F. App'x 131, 134 (2d Cir. 2006).
B. Equitable Tolling
The "60-day requirement is not jurisdictional but rather constitutes a period of limitations," and, as such, the limitations period set forth in 42 U.S.C. § 405(g) is subject to traditional equitable tolling principles. Bowen v. City of New York , 476 U.S. 467, 478, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). To qualify for equitable tolling, a plaintiff must "show that ‘[s]he has been pursuing his rights diligently’ and that ‘some extraordinary circumstance stood in h[er] way.’ " Torres , 417 F.3d at 279 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). As this formulation suggests, there must be a causal connection between the extraordinary circumstances and the plaintiff's failure to file on time. Valverde v. Stinson , 224 F.3d 129, 134 (2d Cir. 2000). The plaintiff bears the burden of establishing the exceptional circumstances warranting equitable tolling, Davila , 225 F. Supp. 2d at 339, and it should only be applied in the "rare case," Bowen , 476 U.S. at 481, 106 S.Ct. 2022.
For example, in Torres , following receipt of a sixty-day notice, plaintiff Torres immediately contacted the court's Pro Se office to obtain the paper work necessary to file a court action. Torres filled out the papers the same day he received them and contacted an attorney to make sure he was not making a mistake. The attorney agreed to assist Torres, provided Torres with a retention agreement, and asked Torres to send him the court papers, which he did. The attorney, however, never filed the court action. When, after the passage of the statute of limitations, Torres discovered this, he immediately took steps attempting to remedy the situation by calling the Pro Se office. A representative of the Pro Se office told Torres that he could still file his lawsuit and would have to send a notarized statement explaining why his complaint was late. The next day, Torres filled out a Pro Se complaint, appended a notarized statement, and mailed the package to the court for filing. Torres , 417 F.3d at 277-78. Summing up the situation, the court explained, "a legally-ignorant, linguistically challenged pro se claimant ... did everything possible to try to assert his claim in timely fashion and was only stymied from so doing by being seriously misled by an attorney in whom he placed his trust." Id. at 280. The court stated that if proven, these facts would be "at least enough to warrant an evidentiary hearing into whether equitable tolling should be invoked." Id.
In contrast, in the absence of demonstrated diligence or extraordinary circumstances, courts have declined to find equitable tolling, even where plaintiffs missed the sixty-day filing date by as little as one day. See, e.g., Natale v. Commissioner of Social Security , No. 17 Civ. 908, 2017 WL 3309734, at *2 (S.D.N.Y. Aug. 2, 2017) ; Thomas v. Commissioner of Social Security , No. 16 Civ. 9247, 2017 WL 3475435, at *3 (S.D.N.Y. June 22, 2017), report and recommendation adopted , 2017 WL 3475064 (S.D.N.Y. Aug. 11, 2017) ; see also Wen Liu v. Mount Sinai School of Medicine , No. 09 Civ. 9663, 2012 WL 4561003, at *4 (S.D.N.Y. Sept. 24, 2012) (" Liu I ") ("Under longstanding Second Circuit authority, ‘in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.’ " (quoting Johnson v. Al Tech Specialties Steel Corp. , 731 F.2d 143, 146 (2d Cir. 1984) )). Circumstances that have not justified equitable tolling include, for example, where the claimant asserted poor health; where the claimant asserted that she was "stressed," "in pain," and "gave the motion to [her] former attorney to respond;" where the claimant asserted illness, theft of identity, and change of address without any proof that these prevented him from complying with the deadline; and where the claimant made "bare assertion[s]" of mental incapacity and receipt of the sixty-day notice later than five days after mailing.
Wong , 854 F.2d at 631.
Twumwaa v. Colvin , No. 13 Civ. 5858, 2014 WL 1928381, at *4 (S.D.N.Y. May 14, 2014).
Courtney v. Colvin , No. 13 Civ. 2884, 2014 WL 129051, at *2-3 (S.D.N.Y. Jan. 14, 2014).
Guinyard v. Apfel , No. 99 Civ. 4242, 2000 WL 297165, at *3-4 (S.D.N.Y. March 22, 2000).
C. Evidentiary Standard
A statute of limitations defense may be asserted on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), provided that it is based exclusively on dates contained in the complaint or appended materials. Rodriguez ex rel. J.J.T. v. Astrue, No. 10 Civ. 9644, 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011), report and recommendation adopted , 2012 WL 292382, at *1-2 (S.D.N.Y. Jan. 31, 2012). On a motion to dismiss, the court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Department of Education , 131 F.3d 326, 329 (2d Cir. 1997).
But where, as here, the court has held an evidentiary hearing and considered material beyond the documents referenced in or attached to the pleadings, the court may determine the facts and decide whether to equitably toll a limitations period. See Wen Liu v. Mount Sinai School of Medicine , No. 09 Civ. 9663, 2013 WL 950761, at *6-8 (S.D.N.Y. March 12, 2013) (" Liu II ") (finding facts and rendering decision on plaintiff's equitable tolling claim following evidentiary hearing); Vincent v. Wal-Mart Store 3420 , No. 10 CV 5536, 2012 WL 3800833, at *5 (E.D.N.Y. Sept. 4, 2012) ("[D]istrict courts within the Second Circuit have held that, where there is an issue of fact regarding the receipt of an agency letter which triggers a statutory filing period, the Court may conduct an evidentiary hearing on that limited issue prior to any trial on the merits."); Upadhyay v. Sethi , 848 F. Supp. 2d 439, 445-46 (S.D.N.Y. 2012) ("Questions pertaining to matters of equity, including the applicability of equitable tolling to statute of limitations, are well within the ambit of the Court's authority to resolve."); see also Dorchester Financial Securities, Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 85 (2d Cir. 2013) (recognizing different burdens associated with determining personal jurisdiction on motion to dismiss, at summary judgment, and after an evidentiary hearing). When there is a factual dispute and the court holds an evidentiary hearing, "the plaintiff must prove the existence of jurisdiction by a preponderance of the evidence." Ball v. Metallurgie Hoboken-Overpelt, S.A. , 902 F.2d 194, 197 (2d Cir. 1990).
Discussion
A. Timeliness of Montgomery's Filing
The first question is on what date Montgomery is deemed to have received the sixty-day notice from the Appeals Council denying her claim. If Montgomery filed her action within the sixty-day period, then she will have complied with the statute of limitations and there will be no need to address equitable tolling. The Court finds that Montgomery received the notice as of March 15, 2017, and that she did not timely file the action.
Montgomery is presumed to have received the Appeals Council notice five days from when it was dated. 20 C.F.R. § 422.210(c). The sixty-day notice is dated March 10, 2017, which means that Montgomery is presumed to have received it as of March 15, 2017. Sixty days from March 15, 2017, was May 14, 2017. May 14, 2017 was a Sunday, which meant that her action needed to be filed by Monday May 15, 2017, to be timely. As set forth above, Montgomery filed this action on May 16, 2017, one day beyond the presumptive deadline.
If the last day of a time period falls on a Saturday, Sunday, or legal holiday, "the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday." Fed. R. Civ. P. 6(a)(1)(C).
The five-day presumption of receipt is not, however, absolute. A claimant can overcome the presumption if she can make a reasonable showing that she received the notice at a later date. 20 C.F.R. § 422.210(c) ; Natale , 2017 WL 3309734, at *2. Montgomery claims that she received notice on March 20, 2017, when she received it from her attorney. But her written submissions nowhere expressly say that she did not also separately receive notice from the Social Security Administration. And as Montgomery testified at the hearing, she could not recall whether she did or did not receive the notice directly from the Social Security Administration separate from what she received from her attorney. (Tr. at 12.) Montgomery checks her mailbox for mail "about twice a week," and she has previously received mailings there from the Social Security Administration. (Tr. at 20, 24.) In short, there is nothing to support a "reasonable showing" that Montgomery never received the Appeals Council notice or did not receive it within five days from the day it is dated.
In her pre-hearing letter to the Court on this issue, Montgomery merely said that she has "no way to predict how long the mail sat in the mail box or post office." (Letter of Angela Montgomery dated June 12, 2018.)
Accordingly, the Court must apply the presumption that Montgomery received notice on March 15, 2017. See Velez v. Apfel , 229 F.3d 1136 (table), 2000 WL 1506193, at *2 (2d Cir. 2000) (summary order) (claim of late receipt properly rejected where plaintiff "made no ‘reasonable showing’ beyond her conclusory allegation"); Natale , 2017 WL 3309734, at *2 (rejecting claim of late receipt because plaintiff produced no evidence to support her claim); Marquez v. Commissioner of Social Security , No. 12 Civ. 8151, 2013 WL 3344320, at *4 (S.D.N.Y. July 2, 2013) (plaintiff's statement that she received notice on a date more than five days from date of notice, "standing alone, does not constitute a ‘reasonable showing to the contrary’ "); see also Matsibekker v. Heckler , 738 F.2d 79, 81 (2d Cir. 1984) (finding plaintiff rebutted presumption by demonstrating notice was not posted until seven days after the notice date); Duran ex rel. Canfield v. Barnhart , No. 03 Civ. 1089, 2003 WL 22176011, at *2 (S.D.N.Y. Sept. 22, 2003) (finding plaintiff rebutted presumption by providing collection of notices sent by defendant showing that average delay was eight days and that the mailing occurred at Christmas time).
Because Montgomery is deemed to have received the Appeals Council notice on March 15, 2017, the sixty-day limitations period ran out on May 15, 2017. Having filed this action on May 16, 2017, Montgomery's filing comes one day too late and is not timely.
B. Equitable Tolling
Because Montgomery filed this action out of time, the question becomes whether this is one of those rare cases where equitable tolling applies and saves plaintiff's case from dismissal. As set forth above, equitable tolling requires a showing of both diligence in pursuing one's rights and extraordinary circumstances causing the late filing. Torres , 417 F.3d at 279 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ); Zerilli-Edelglass , 333 F.3d at 80. Here, Montgomery's potential basis for equitable tolling is grounded in her interactions with the Pro Se office, and specifically that the Pro Se clerk told Montgomery that she could come back "next week" and that her time to file began to run from the day she received her attorney's letter enclosing the Appeals Council notice, that is, on March 20, 2017. The Court finds that, in this particular case, grounds for equitable tolling exist.
Several court decisions in this circuit have addressed the question of whether misleading statements from a Pro Se clerk or others gave rise to equitable tolling, particularly in the context of employment discrimination cases. One example is Brissett v. New York City Transit Authority , No. 09 CV 874, 2010 WL 2134267, at *1 (E.D.N.Y. May 27, 2010). In Brissett , the plaintiff filed her action two days past the ninety-day notice period provided by a right to sue letter from the Equal Employment Opportunity Commission ("EEOC"). In circumstances very similar to those here, the plaintiff brought her complaint to the Pro Se office before the limitations period had expired, but the Pro Se clerk told plaintiff to add critical missing information from her complaint, and that plaintiff had up to and including February 24, 2009, to complete the complaint form. Id. Based on "some corroboration," consisting of a hand-written note, the court credited the plaintiff's story and found equitable tolling to be appropriate. Id.
In another EEOC notice case, the court found equitable tolling appropriate where a pro se plaintiff timely submitted his complaint to the Pro Se office within the ninety-day period, but the complaint was not officially filed by the clerk until after the ninety-day period. Massie v. Metropolitan Museum of Art , No. 06 Civ. 12950, 2007 WL 4292771, at *1 (S.D.N.Y. Dec. 6, 2007). Because any delay after the plaintiff had submitted his complaint "was the fault of the Pro Se Clerk's Office," equitable tolling was warranted. Id. ; see also Clark v. Commodity Futures Trading Commission , 126 F.3d 424, 425-26 (2d Cir. 1997) (denying motion to dismiss appeal where, among other contributing factors, the Pro Se office incorrectly informed plaintiff of the applicable time period for appeal); Nielsen v. Flower Hospital , 639 F. Supp. 738, 747-48 (S.D.N.Y. 1986) (applying equitable tolling in employment discrimination case where plaintiff relied on a defective form provided by the Pro Se office).
Another apt case is Liu I and II (collectively referred to as "Liu "). In Liu , the plaintiff received a ninety-day right-to-sue notice and attempted to file a court action on the last day of the period. The plaintiff claimed that she had trouble completing the forms and that the Pro Se clerk informed her that she could take home the forms to complete and bring them back later. Plaintiff returned with and filed the completed form nine days later, after the ninety-day period had lapsed. Liu I , 2012 WL 4561003, at *2-3. The court recognized that "Plaintiff's allegations that a clerk in the Court's Pro Se clerk office incorrectly advised her of the filing deadline may, if true, be a basis for equitably tolling the limitations period. A party appearing pro se could potentially be entitled to have a portion of the limitations period equitably tolled if he or she detrimentally relied on incorrect information provided by the representatives in a court's pro se office about filing deadlines." Id. at *6 (citing Clark , 126 F.3d at 425, and Brissett , 2010 WL 2134267, at *1 ). After holding an evidentiary hearing, however, the court found the plaintiff's story not credible due to a variety of inconsistencies in her testimony and explanations that "bordered on the preposterous," as well as contrary testimony from a representative of the Pro Se office. Liu II , 2013 WL 950761, at *7-8. Accordingly, the Court found no basis for equitable tolling. Id. at * 7.
Another court declined to apply equitable tolling for a complaint filed thirty-eight days after the ninety-day statutory filing period. Stephens v. Salvation Army , No. 04 Civ. 1697, 2006 WL 2788245 (S.D.N.Y. Sept. 26, 2006). There, the plaintiff claimed that he filed late because a Pro Se clerk told him that he should not include weekends and holidays in calculating the ninety-day period. Id. at *2. The court did not credit the plaintiff's "vague and uncorroborated" assertions, however, particularly in light of the fact that plaintiff had a copy of the EEOC letter clearly stating that an action had to be filed within ninety days of receipt as well as a copy of Federal Rule of Civil Procedure 6, which explains how weekends and holidays are treated when computing time periods applicable to federal civil litigation. Id. at *4.
Here, the extraordinary circumstances asserted are very similar to those present in Brissett and those in Liu , in which the court had been prepared to find equitable tolling had the plaintiff's story about the incorrect advice from the Pro Se office been credited. In this case, the Court credits Montgomery's testimony. Montgomery appeared at the Pro Se office to file her action on Friday May 12, 2017, the Friday before the Monday on which the period for filing came to a close. The Pro Se clerk told Montgomery that she could go home to obtain missing material, could return the following week, and that the sixty-day period began on March 20, 2017, when Montgomery received the notice from her attorney. The Pro Se clerk did not specify any particular day the following week for Montgomery to return. Montgomery returned early in the week, albeit not on Monday when the limitations period ran out, but several days before the period would have expired as calculated from the March 20 date that the Pro Se clerk told her started the count.
The Court finds Montgomery's explanation credible. Her testimony at the hearing was consistent with the explanation she provided previously in her declaration under oath. Although parts of her other testimony were vague, and at times Montgomery appeared confused about the questions being asked, Montgomery's testimony about her interactions with the Pro Se office was clear and internally consistent. Montgomery's demeanor and presentation as a witness did not suggest someone who was dissembling. She spoke directly to the Court and did not look away when questioned. She spoke naturally, and she did not pause in her answers in a way one might if they were trying to figure out the answer that would help her best.
As in Stephens , Montgomery had contrary information in her possession. Her attorney's letter explicitly said that she had to file by May 14, 2017. But her attorney did not represent her at all in connection with her pursuing her district court appeal. Moreover, Montgomery appeared at the Pro Se office to file her complaint on May 12, 2017, thus complying with the attorney's admonition. She then relied on the direction of an employee of the Court – the Pro Se "clerk" – that she could return home to complete the paperwork and file the following week. At that point, the date initially instructed by the attorney no longer representing Montgomery was moot. This case thus is not like Stephens , where there is no indication that an evidentiary hearing was held, the plaintiff's statements were "vague," and the issue was one of how to treat weekends and holidays – an issue for which the plaintiff had in hand the guiding Federal Rule. In support of its motion to dismiss, the Commissioner cites numerous social security benefit cases where courts found no equitable tolling to save a plaintiff's complaint filed later, even just one day later, than sixty days after receipt. (Memorandum of Law in Support of the Commissioner's Motion at 3-7.) None of these cases, however, involved any allegation of incorrect instruction received from a Pro Se office. For that reason alone, none of those cases warrant a different outcome.
In her unsworn June 12, 2018 letter sent in response to the Court's inquiry seeking explanation about whether and when she received the copy of the notice sent directly to her by the Social Security Administration, Montgomery did refer to excluding weekends. But that issue did not appear in her declaration and was not mentioned at the hearing. Moreover, nothing in the record indicates that Montgomery excluded weekends when seeking to comply with the sixty-day filing period.
The foregoing discussion primarily addresses the second component of equitable tolling. That leaves the question of whether Montgomery was diligent in pursuing her right to file this action. The Court finds that Montgomery was reasonably diligent. On the one hand, Montgomery did not attend to preparing material for her filing until May. She arguably could have done so earlier and tried to file earlier, which would have left more time to correct any deficiency. But Montgomery did not wait until the last day to find out what she needed to do to file the action and to pull material together for doing so. More importantly, reasonable diligence need not be shown throughout the entire sixty-day period, but rather only "throughout the period to be tolled." Harper v. Ercole , 648 F.3d 132, 136 (2d Cir. 2011). The tolling sought by Montgomery is only for the period between the time the Pro Se office clerk told her she could come back next week and her doing so. Montgomery did what she was told could be done, and did so diligently over the course of a weekend and days before the period that would apply if the Pro Se clerk were correct.
Conclusion
For the foregoing reasons, I recommend that the Commissioner's motion to dismiss be DENIED, that the Commissioner's motion to withdraw the motion to dismiss be DENIED, and that this action proceed on the merits. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.