Opinion
Case No. A4-04-117.
May 4, 2005
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Before the Court is the Defendant's Motion to Dismiss filed on March 18, 2005. The Plaintiff did not file a response. For the following reasons, the motion is granted.
Under Local Rule 7.1, failure to file a brief by the adverse party may be deemed an admission that the motion is well taken.
I. BACKGROUND
On September 18, 2001, the plaintiff, Charles Paige, filed applications for Disability Insurance Benefits and Supplemental Security Income Benefits under Titles II and XVI of the Social Security Act. The claim was denied initially and on reconsideration. Thereafter, a timely request for a hearing was filed. On October 21, 2003, a hearing was held in Minot, North Dakota, before Administrative Law Judge Donald Holloway. On December 11, 2003, Holloway issued a decision denying Paige's claim benefits. See Defendant's Ex. 1. Subsequently, Paige's request for review was denied by the Appeals Council on July 16, 2004. See Plaintiff's Ex. 2. The denial letter included the caption " How to File a Civil Action" under which the following appeared:
You may file a civil action (ask for court review) by filing a complaint in the United States District Court for the judicial district in which you live. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of the letter.
Id. Further, the letter included the caption " Time to File a Civil Action" explaining as follows:
• You have 60 days to file a civil action (ask for court review).
• The 60 days start the day after your receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.
• If you cannot filed for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request.Id.
On September 24, 2004, after the 60-day time period had expired, Paige filed an action in the United States District Court for the District of North Dakota. Thereafter, the Defendant filed a motion to dismiss predicated upon the untimely nature of the action.
II. LEGAL DISCUSSION
"The Social Security Act establishes a mechanism for judicial review of final administrative decisions." Bess v. Barnhart, 337 F.3d 988, 989 (8th Cir. 2003). Section 405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.42 U.S.C. § 405(g). With regard to the sixty-day time limitation, the Eighth Circuit explained:
The promulgated regulations, however, are more lenient and provide that a civil action must be commenced within sixty days after notice of the Appeals Council decision "is received by the individual." See 20 C.F.R. § 422.210(c); 20 C.F.R. §§ 404.981, 416.1481 ("You may file an action in a Federal district court within 60 days after the date you receive notice of the Appeals Council's decision."); Caran v. Bowen, 834 F.2d 720, 721 (8th Cir. 1987) (per curiam). The regulations further provide that receipt of notice of the Appeals Council decision is presumed five days after the date of notice, unless there is a reasonable showing to the contrary; and that notice sent to the individual's representative has the same force and effect as notice sent to the individual. See 20 C.F.R. § 422.210(c); 20 C.F.R. §§ 404.901, 416.1401 ("Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period."); 20 C.F.R. §§ 404.1715(b), 416.1515(b) ("A notice or request sent to your representative, will have the same force and effect as if it had been sent to you.").
. . .
We conclude that notice received by either the individual or the individual's attorney, whichever occurs first, triggers the sixty-day limitations period.Bess, 337 F.3d 988, 989-90.
The United States Supreme Court has established that the sixty-day time period is not jurisdictional, but rather constitutes a statute of limitation. Bowen v. City of New York, 476 U.S. 478 (1986) (citing Mathews v. Eldridge, 424 U.S. 319, 328 n. 9 (1976); Weinberger v. Salfi, 422 U.S. 749, 764 (1975)). "[T]he statute of limitations embodied in § 405(g) is a mechanism by which Congress was able to move cases to speedy resolution in a bureaucracy that processes millions of claims annually." Id. at 481. It is well-established that failure to comply with the sixty-day limitation warrants dismissal. See Bess v. Barnhart, 337 F.3d 988 (8th Cir. 2003); Turner v. Bowen, 862 F.2d 708 (8th Cir. 1988).
In the present case, Paige's action was filed beyond the sixty-day time period, albeit only a few days. Paige's request for review was denied by the Appeals Council in a letter dated July 16, 2004. As explained, the law presumes that Paige received notice within five days of the posted date, unless there is a reasonable showing to the contrary. By the Court's calculation, the sixty-day time period would have run on September 19, 2004. As such, Paige's action is untimely.
The Court's calculation accounts for the additional five days.
As the Defendant correctly recognizes, the United State Supreme Court has allowed for equitable tolling of the sixty-day limitation in rare instances. See Bowen v. City of New York, 476 U.S. 478, 480 (1986). Tolling is permitted in cases "where the equities in favor of tolling the limitations period are `so great that deference to the agency's judgment is inappropriate.'"Id. The Eighth Circuit stated, "[g]enerally, equitable circumstances that might toll a limitations period involve conduct (by someone other than the claimant) that is misleading or fraudulent." Turner v. Bowen, 862 F.2d 708, 710 (8th Cir. 1988) (citing Smith v. McClammy, 740 F.2d 925, 927 (11th Cir. 1984)). Whereas, "ignorance of legal rights does not toll a statute of limitations." Id. (quoting Larson v. American Wheel Brake, Inc., 610 F.3d 506, 510 (8th Cir. 1979)). It is clear, in the present case, no facts exist to warrant the tolling of the sixty-day limitation.
III. CONCLUSION
For the reasons set forth above, as well as the failure on the part of Charles Paige to file a brief in response to the pending motion, the Court GRANTS the Defendant's Motion to Dismiss (Docket No. 9).