Opinion
C.A. No. 03-11276-MLW.
December 27, 2006
MEMORANDUM AND ORDER
Plaintiff Janet Romani filed this action seeking judicial review of the denial of her claim for disability benefits. Defendant Commissioner of Social Security Jo Anne B. Barnhart has moved to dismiss the case as time-barred. The affidavits filed in opposition to this motion, and related documents in the court file, raise serious legal issues that neither party has addressed and that, on reflection, defendant may not feel it is necessary or appropriate to have decided in this case. Therefore, the motion to dismiss is being denied without prejudice to provide the defendant the option of either renewing the motion to dismiss or addressing the merits of Romani's claim.
42 U.S.C. § 405(g) provides that "[a]ny 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." The relevant regulations provide another five days for mailing. See 20 C.F.R. §§ 422.210(c), 404.981, 404.901. An Administrative Law Judge denied Romani's request for benefits and the Appeals Council denied his request for review on March 14, 2003. Therefore, Romani was required to commence this case by May 18, 2003.
A motion to proceed in forma pauperis was filed on June 30, 2003. The complaint was docketed on August 1, 2003, the day that motion was allowed. Therefore, the defendant contends that this case is time-barred.
However, Romani's local counsel, Elliot Weinstein, asserts that the complaint was delivered to the court on May 13, 2003, and the original complaint in the case file is stamped as received by the court on May 13, 2003. The delay in docketing until August 1, 2003 apparently resulted from the failure of Romani to submit on May 13, 2003 either the $350 filing fee required by 28 U.S.C. § 1914(a) or a motion to proceed in forma pauperis. Rule 4.5(a) of the Local Rules of the United States District Court for the District of Massachusetts states that "the clerk and other officers and employees of the court shall not be required to perform any service for a party . . . unless the amount of the fee, if it is known, or an amount sufficient to cover the fee reasonably expected by the officer to come due for performance of the service has been deposited with the court." This rule represents an exercise of the authority granted by 28 U.S.C. § 1914(c), which provides that "[e]ach district court by rule or standing order may require advance payment of fees." The court employee who received the complaint on May 13, 2003 evidently acted pursuant to Local Rule 4.5(a) in declining to docket the complaint on that date.
If the motion to proceed in forma pauperis which proved to be meritorious had been filed by May 18, 2003, the court would deem the complaint to have been constructively filed on May 13, 2003 and, therefore, timely. See Jarrett v. US Sprint Communications Company, 22 F.3d 256, 259 (10th Cir. 1994). However, that motion was not filed until June 30, 2003, well after the limitations period had expired. In similar circumstances, some courts have used the date of delivery of the complaint to the court and found the case to have been commenced within the limitations period.See Rodgers v. Bowen, 790 F.2d 1550, 1551-52 (11th Cir. 1986) (Social Security Act appeal not time-barred when filing fee not paid until after limitations period expired); Bolduc v. United States, 189 F. Supp. 640 (D. Me. 1960) (Federal Tort Claims Act case timely commenced when complaint was delivered within the limitations period and filing fee paid after it expired) (citingParissi v. Telechron Inc., 349 U.S. 46, 47 (1955)). On comparable facts, other courts have reached the contrary conclusion and held the action to be time-barred. See Keith v. Heckler, 603 F. Supp. 150, 154-57 (E.D. Va. 1985) (deciding a Social Security Act appeal was time-barred and criticizing Bolduc); Wanamaker v. Columbia Rope Company, 713 F. Supp. 533, 537-39 (N.D.N.Y. 1989) (ADEA claim time-barred). The First Circuit has not decided this issue.
In any event, the limitations period established by § 405(g) is not jurisdictional. See Bowen v. City of New York, 476 U.S. 467, 478 (1986); Rodgers, 790 F.2d at 1551-52. Rather, it is comparable to the period for filing a complaint alleging discrimination pursuant to 42 U.S.C. § 2000-e-5(f)(1) and is, therefore, "a requirement that, like a statute of limitation, is subject to waiver, estoppel, and equitable tolling." Jarrett, 22 F.3d at 259-60. This court is inclined to find that the complaint in this case is not time-barred if it has the legitimate discretion to do so, in part because the importance of Social Security benefits to an individual make a decision on the merits of an appeal particularly desirable.
The parties have not addressed the implications of the facts as the court has stated them in this Memorandum or the relevant, conflicting case law. Therefore, it is appropriate to give the government the opportunity to consider whether it wishes to continue to assert that this case should be dismissed as time-barred and, if necessary, give the parties the opportunity to brief this issue properly.
Accordingly, it is hereby ORDERED that:
1. The Defendant's Motion to Dismiss Complaint (Docket No. 8) is DENIED without prejudice.
2. Counsel shall confer and the defendant shall, by January 12, 2007, either:
(a) File a new motion to dismiss and supporting memorandum; or
(b) A statement that the defendant will instead address the merits of Romani's appeal.
3. If a new motion to dismiss is filed, Romani shall respond to it by January 26, 2007, and any reply shall be filed by February 2, 2007.
4. If a new motion to dismiss is not filed:
(a) Romani shall file a memorandum addressing the merits of her appeal by January 26, 2007.
(b) The defendant shall respond by February 28, 2007.