Opinion
C. A. 6:21-cv-2281-SAL-KFM
01-18-2023
Opal Boatley, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on a motion to dismiss filed by the Commissioner of Social Security (“the Commissioner”), arguing that the plaintiff's complaint is untimely (doc. 39). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint in this action was entered on the docket on July 26, 2021 (doc. 1). After the plaintiff brought the case into proper form, because it appeared that the plaintiff's complaint was not timely filed, on October 14, 2021, the undersigned issued an order to show cause, instructing the plaintiff to file a factual explanation to show cause why her complaint should not be dismissed based upon the sixty-day statute of limitations (doc. 25). More than two weeks after the deadline to respond expired, the plaintiff filed a two-page letter in response to the order (doc. 28). On December 7, 2021, the undersigned issued a report and recommendation, recommending that this action be dismissed as untimely based upon the statute of limitations (doc. 30). On July 29, 2022, the Honorable Sherri A. Lydon, United States District Judge, issued an order finding that the plaintiff did not timely file this action or satisfy the requirements for equitable tolling, but declining to adopt the report and recommendation because the statute of limitations is an affirmative defense that had not yet been raised by the Commissioner (doc. 36). On August 29, 2022, the Commissioner filed a motion to dismiss based upon the statute of limitations (doc. 39). On August 30, 2022, the undersigned issued an order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the plaintiff of the summary judgment/dismissal procedure and of the possible consequences if she failed to adequately respond to the motion (doc. 40). On September 8, 2022, the plaintiff submitted a letter to the court, but it did not address the Commissioner's motion (doc. 42). Because the plaintiff failed to respond to the motion, the undersigned issued an order on October 5, 2022, providing the plaintiff with additional time to respond to the Commissioner's motion (doc. 43). The order reminded the plaintiff that if she failed to file a response to the Commissioner's motion, the undersigned would consider the Commissioner's motion without the benefit of her response (id. at 1-2). The plaintiff filed a response to the Commissioner's motion on October 20, 2022 (doc. 45). As such, the motion is now ripe for review.
APPLICABLE LAW AND ANALYSIS
A motion to dismiss a complaint as untimely is generally brought under Federal Rule of Civil Procedure 12(b)(6). See Moseke v. Miller & Smith, Inc., 202 F.Supp.2d 492, 496 n.5 (E.D. Va. 2002) (“An expiration of the statute of limitations is properly analyzed under a [Rule 12(b)(6)] standard.”); see also Veith v. United States, C/A No. 98-0074-R, 1998 WL 920398, at *2 n.3 (W.D. Va. Nov. 16, 1998) (noting that “where the statute of limitations is not a jurisdictional issue, the statute of limitations is normally raised in a motion to dismiss under rule 12(b)(6) rather than 12(b)(1)”). Judicial review of final decisions made by the Commissioner of Social Security on claims arising under Titles II or XVI of the Social Security Act is prescribed in 42 U.S.C. § 405(g), which provides in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which [she] 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 [her] of notice of such decision or within such further time as the Commissioner of Social Security may allow.42 U.S.C. § 405(g). The regulations further provide that a civil action “must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual . . ., except that this time may be extended by the Appeals Council upon a showing of good cause.” 20 C.F.R. § 422.210(c). The date of receipt of the notice is presumed to be five days after the date of such notice, unless the plaintiff makes a reasonable showing to the contrary. See 20 C.F.R. §§ 404.901, 422.210(c), 416.1401. The sixty-day statute of limitations, however, is not jurisdictional and is subject to equitable tolling. See Bowen v. City of New York, 476 U.S. 467, 479-80 (1986). Equitable tolling is only appropriate, however, when exceptional circumstances have been demonstrated. See Hyatt v. Heckler, 807 F.2d 376, 378, 380-81 (4th Cir. 1986), cert. denied 484 U.S. 820 (1987). A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that she has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
As noted, the Commissioner argues that the plaintiff's filing is untimely and that she does not qualify for equitable tolling (doc. 39). The undersigned agrees. In the instant matter, the Notice of Appeals Council is dated December 18, 2020 (doc. 1-1). The notice specifically informed the plaintiff of her right to commence a civil action within sixty (60) days from the date of the receipt (which was presumed five days after the date of the notice) (id.). The notice also set out that, should the plaintiff need an extension of the deadline, she was required to request it in writing from the Commissioner (id.). Allowing five days for mailing pursuant to the applicable regulations, the plaintiff is presumed to have received the notice on December 23, 2020. The time period within which the plaintiff could file a civil action began on that day and expired sixty days later on February 22, 2021, because the plaintiff did not receive an extension of time to file her request for court review (doc. 20 at 2). As such, when the plaintiff filed the instant action on July 26, 2021, it was several months after the expiration of the deadline (doc. 1). In her complaint, the plaintiff indicated that she received the decision from the Appeals Council in May 2021 (id. at 3). However, as noted above, notice is presumed to be five days after the date of such notice, unless the plaintiff makes a reasonable showing to the contrary. See 20 C.F.R. §§ 404.901, 422.210(c), 416.1401. Here, the plaintiff's submissions to the court have not done so. As such, the plaintiff's filing appears untimely and subject to dismissal, unless the plaintiff can provide exceptional circumstances necessary to justify equitable tolling. See Hyatt, 807 F.2d at 378 (citing Bowen, 476 U.S. at 481-85); Gibbs v. Barnhart, C/A No. 2:04-cv-0056, 2005 WL 283205, at *2 (W.D. Va. Feb. 7, 2005).
Here, although the plaintiff filed a response to the Commissioner's motion, she did not address the Commissioner's motion or the timeliness of her filing (doc. 45). Nevertheless, the plaintiff did previously file a response that did address the timeliness of her filing (doc. 28). The plaintiff's prior response indicated that she was aware of the sixtyday deadline to respond, but she asserts that she was waiting to hear from a lawyer about taking her case (id.). The plaintiff's response also noted, however, that she reached out to the lawyer for an update regarding taking her case because she knew the deadline was approaching (id.). Moreover, as recognized by Judge Lydon, the plaintiff's previous response did not meet the standard for equitable tolling (doc. 36 at 8-9). In light of the plaintiff's failure to provide any additional explanation for delaying the initiation of this matter, this does not appear to be one of those “rare cases” in which the application of equitable tolling is appropriate. Indeed, the plaintiff may not seek equitable tolling based upon waiting for an attorney to review her case because an attorney's mistake (i.e. not reviewing the file prior to expiration of the deadline) is not “one of the rare circumstances in which equitable tolling is permissible.” Gibbs, 2005 WL 283205, at *1 (emphasis added and quotation marks omitted) (citing Davila v. Barnhart, 225 F.Supp.2d 337, 339 (S.D.N.Y. 2002)). Instead, the plaintiff's assertions make it clear that she was aware that she had a limited time to file her civil action in this court, but inexplicably waited an additional five months before filing this action (docs. 1; 28). As noted above, the plaintiff filed a response in opposition to the Commissioner's motion; however, her response does not contain any information to support equitable tolling in this matter (see doc. 45). As such, the circumstances leading to the plaintiff's late filing were not extraordinary; rather, they were entirely within her control and evince a lack of diligence. As the plaintiff's conduct “is at best a garden variety claim of excusable neglect,” she appears ineligible for equitable tolling. See e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Gibbs, 2005 WL 283205, at *2. Accordingly, the Commissioner's motion should be granted.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS HEREBY RECOMMENDED that the Commissioner's motion to dismiss (doc. 39) be granted.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).