C.L. TURNER, Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Appellee

862 F.2d 708, 1988 U.S. App. LEXIS 16604, 1988 WL 130213

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 9, 1988
• Docket: 87-2688
• Status: Published

Opinions

PER CURIAM.

C.L. Turner appeals from the District Court’s¹ amended order dismissing his complaint against the Secretary of Health and Human Services (Secretary) as not timely filed under 42 U.S.C. § 405(g). We affirm.

I.

On March 27,1984, Turner filed an application for disability insurance benefits. After his application was denied initially and upon reconsideration, Turner requested and received a hearing before an Administrative Law Judge (ALJ). At the hearing, Turner was represented by a state representative, who apparently is not an attorney.

On April 11, 1986, the ALJ issued a decision denying benefits and Turner requested review of the decision by the Appeals Council. On July 16, 1986, the Appeals Council denied review and informed Turner that he had sixty days to commence a civil action to obtain judicial review of the ALJ’s decision. A copy of this letter was mailed to Turner and to his representative. Turner sent the letter to the offices of Senator Dale Bumpers, who by letter dated August 29, 1986, informed Turner that the next step would be to file a complaint in federal district court.

Turner did not contact an attorney until January 9,1987, at which time the attorney requested the Appeals Council to reverse the agency’s decision denying benefits, or to extend the time, pursuant to 20 C.F.R. § 422.210(c), for filing a civil action on the grounds that Turner was illiterate and not represented by an attorney at the hearing. The Appeals Council denied the requested extension on April'8, 1987. The Appeals Council noted that although Turner was illiterate, he had been represented by a state legislator at the hearing and had proceeded through the administrative process in a timely manner. Thereafter, Turner filed a complaint in federal district court seeking review of the Appeals Council’s decisions. In response to the Secretary’s motion to dismiss, Turner argued that the court should toll the sixty-day statute of limitations of 42 U.S.C. § 405(g).

The District Court dismissed Turner’s complaint, concluding that there was no basis for tolling the statute of limitations because Turner had not proved to be a person “unusually disadvantaged in protecting his own interests.” This appeal followed.

II.

Judicial review is limited to review of “any final decision of the Secretary made after a hearing.” 42 U.S.C. § 405(g). A petition to reopen a claim for benefits can be ruled on without a hearing, and as such, it is not a “final decision of the Secretary made after a hearing.” Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, , 51 L.Ed.2d 192 (1977). See also Smith v. Heckler, 761 F.2d 516 (8th Cir.1985); Sheehan v. Secretary of Health, Educ. & Welfare, 593 F.2d 323 (8th Cir.1979). Accordingly, the District Court was without subject matter jurisdiction to review the Appeals Council’s decision not to reopen Turner’s claim for benefits. The same analysis applies to the Appeals Council’s decision to deny an extension of time for filing a civil action in federal district court. See McCall v. Bowen, 832 F.2d 862, 863 (5th Cir.1987); Stone v. Heckler, 778 F.2d 645, 648-49 (11th Cir.1985); Peterson v. Califano, 631 F.2d 628, 629-31 (9th Cir.1980).

We agree with the District Court that, viewing Turner’s complaint as an untimely action for judicial review of the underlying denial of benefits, the circumstances here do not justify tolling the sixty-day statute of limitations. Generally, equitable circumstances that might toll a limitations period involve conduct (by someone other than the claimant) that is misleading or fraudulent. Smith v. McClammy, 740 F.2d 925, 927 (11th Cir.1984) (Title VII case). “Equitable tolling thus far has been allowed only in those cases where the government has hindered a claimant’s attempts to exercise her rights by acting in a misleading or clandestine way.”' Wong v. Bowen, 854 F.2d 630, 631 (2d Cir.1988) (equitable tolling denied even though claimant for social security disability benefits asserted that illness prevented her from timely filing an action in federal district court). And this court has recognized the principle that “ignorance of legal rights does not toll a statute of limitations.” Larson v. American Wheel & Brake, Inc., 610 F.2d 506, 510 (8th Cir.1979).

Succinctly stated, this is not a case “where the equities in favor of tolling the limitations period are ‘so great that deference to the agency’s judgment is inappropriate.’ ” Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 2030, 90 L.Ed. 2d 462 (1986) (quoting Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1976)). See Lively v. Bowen, 827 F.2d 268, 269 (8th Cir.1987) (no tolling where challenge was not to the procedures employed by Secretary but to the merits of Secretary’s decision). Cf. Bowen v. City of New York, 476 U.S. at 478-82, 106 S.Ct. at 2029-31 (statute tolled in class action suit where Secretary maintained an unpublished policy that prevented claimants from learning of their rights); Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir.1987) (case remanded for Secretary to determine if good cause existed for tolling where Social Security Administration employee told claimant not to worry about filing appeal on time because “they’ll give you an extension”); Hyatt v. Heckler, 807 F.2d 376, 380-81 (4th Cir.1986) (statute tolled in class action challenge to Secretary’s secretive policy of noncompliance with law of circuit), cert. denied, — U.S. -, 108 S.Ct. 79, 98 L.Ed.2d 41 (1987).

The decision of the District Court is affirmed.

1 . The Honorable Henry Woods, United States ■ District Judge for the Eastern District of Arkansas.