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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 KIM LAUBE, CASE NO. 2:25-cv-02101-LK 11 Plaintiff, ORDER DENYING MOTION TO 12 v. ACCEPT LATE FILING OF COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15
16 This matter comes before the Court on Plaintiff Kim Laube’s motion asking the Court to 17 accept her late filed complaint. Dkt. No. 6. The Commissioner has not responded to the motion. 18 For the reasons set forth below, the Court denies the motion. 19 “Any individual, after any final decision of the Commissioner of Social Security, . . . may 20 obtain a review of such decision by a civil action commenced within sixty days after the mailing 21 to him of notice of such decision or within such further time as the Commissioner of Social 22 Security may allow.” 42 U.S.C. § 405(g). A claimant who does not file a civil action within the 23 prescribed 60-day time frame loses the right to judicial review “unless [the claimant] can show 24 1 [the Commissioner] that there was good cause for [her] failure to make a timely request for 2 review.” See 20 C.F.R. § 404.900(b). A statute of limitations “must be strictly construed” because 3 it “is a condition on the waiver of sovereign immunity[.]” Bowen v. City of New York, 476 U.S. 4 467, 479 (1986). Consequently, absent an applicable exception, a court must dismiss a claimant’s
5 untimely complaint if it falls outside Congress’s express consent to suit. See Kaiser v. Blue Cross, 6 347 F.3d 1107, 1117 (9th Cir. 2003); Smith v. Comm’r of Soc. Sec. Admin., No. CV-24-03014- 7 PHX-JAT, 2025 WL 1025026, at *2 (D. Ariz. Apr. 4, 2025). Equitable tolling, which “is consistent 8 with Congress’ intent in enacting § 405(g),” can excuse an untimely appeal, but it is only in “the 9 rare case” that tolling applies. Bowen, 476 U.S. at 480–81; see also Baldwin Cnty. Welcome Ctr. 10 v. Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements established by Congress for gaining 11 access to the federal courts are not to be disregarded by courts out of a vague sympathy for 12 particular litigants.”). 13 Here, the Appeals Council issued a final decision on July 28, 2025, Dkt. No. 5 at 1, but 14 Laube did not file this action until October 27, 2025, Dkt. No. 1, approximately 26 days past the
15 deadline.1 Laube’s motion provides the following explanation for the late filing: 16 Due to a change of staff in the office, this Complaint had not been properly calendared and therefore was not filed timely. Internal measures have been taken 17 in order to avoid such a situation happening again. As the late filing does not cause prejudice to the Defendant, the Plaintiff respectfully requests that the Court accept 18 the late filing of this Complaint. 19 Dkt. No. 6 at 1. In violation of Local Civil Rule 7(b)(1), Laube did not supply an affidavit 20 substantiating these factual assertions regarding the cause of the late filing. Laube also does not 21 22 1 Although the statute of limitations starts to run on the date the claimant received the Commissioner’s notice of denial 23 of the claimant’s request for review, see 20 C.F.R. § 422.210(c), neither the complaint nor the motion states when receipt occurred, see generally Dkt. Nos. 5, 6. The notice is presumed to have been received five days after the date on the notice, so “[a] civil action filed within 65 days of the notice is presumed timely.” Williams v. Comm’r of Soc. 24 Sec., No. 1:17-cv-0760-JLT, 2019 WL 1556659, at *2 (E.D. Cal. Apr. 10, 2019) (citing regulations). 1 provide any legal basis supporting acceptance of her late filing, and the Court finds that she has 2 not established that the deadline should be equitably tolled. 3 Equitable tolling requires that a plaintiff show “(1) that [s]he has been pursuing [her] rights 4 diligently, and (2) that some extraordinary circumstance stood in [her] way.” Okafor v. United
5 States, 846 F.3d 337, 340 (9th Cir. 2017) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 6 (2005)); see also Holland v. Florida, 560 U.S. 631, 649 (2010). “Equitable tolling is typically 7 denied in cases where a litigant’s own mistake clearly contributed to his predicament.” Harris v. 8 Carter, 515 F.3d 1051, 1055 (9th Cir. 2008). Laube may have pursued her rights diligently by 9 retaining counsel, appealing the Administrative Law Judge’s denial of her claim to the Appeals 10 Council, and then appealing the Appeals Council’s denial to this Court. See Dkt. No. 5 at 1.2 11 However, she has not identified any extraordinary circumstances that prevented her from filing a 12 timely complaint. Her counsel’s calendaring error constitutes negligence, not an extraordinary 13 circumstance. For example, a Court in this district recently found that equitable tolling did not 14 apply when the same counsel who represents Laube argued that plaintiff’s four-day complaint
15 filing delay was “due to a new secretary in the office which incorrectly calculated the statute of 16 limitations.” Evans J.S. v. Comm’r of Soc. Sec., No. C24-5315 RSM, 2024 WL 4202162, at *2 17 (W.D. Wash. Sept. 16, 2024) (“Plaintiff’s untimely filing due to a miscalculation of dates is neither 18 a showing of due diligence nor an extraordinary circumstance under which the statute of 19 limitations should be equitably tolled.”). In Evans J.S., the fact that the filing delay was relatively 20 short—as it was here—did not bolster the case for equitable tolling. See id. (collecting cases). 21 Evans J.S. is consistent with Ninth Circuit authority declining to “recognize run-of-the mill 22 mistakes as grounds for equitable tolling because doing so would essentially equitably toll 23
2 Laube could have, but apparently did not, seek an extension of the complaint filing deadline from the Commissioner. 24 See 20 C.F.R. § 404.982. 1 limitations periods for every person whose attorney missed a deadline.” Okafor, 846 F.3d at 340 2 (citation modified); see also Lazerson v. Colvin, No. 4:13-cv-02832-YGR, 2014 WL 967048, *6 3 (N.D. Cal. Mar. 6, 2014) (denying equitable tolling because “this appears to be a case of attorney 4 negligence that does not warrant this extraordinary remedy”).
5 The Court notes that this is only the latest example of many of plaintiff’s counsel failing to 6 conform to the standard of practice in this Court. See, e.g., Katarena C. v. Comm'r of Soc. Sec., 7 No. C24-1663-SKV, 2025 WL 2730668, at *3 n.4 (W.D. Wash. Sept. 25, 2025) (same counsel as 8 instant case) (noting that counsel exhibited a “lack of diligence” in his briefing and warning that 9 “similar inadequate briefing in the future may not be considered”); Inman v. Comm’r, 24-cv- 10 01448-LK, Dkt. No. 14 at 4–5 (W.D. Wash. Sept. 22, 2025) (same counsel as instant case) (noting 11 that counsel’s briefing was skeletal and inadequate); Dianna H. v. Comm’r, No. 3:24-cv-05630- 12 TL, 2025 WL 1355379, at *2 (W.D. Wash. May 9, 2025) (same counsel as instant case) 13 (“Plaintiff’s three-paragraph brief and two-paragraph reply are skeletal and inadequate in every 14 way”); Dennis T. v. Comm'r of Soc. Sec., No. C19-5500-RAJ, 2020 WL 91491, at *2 (W.D. Wash.
15 Jan.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 KIM LAUBE, CASE NO. 2:25-cv-02101-LK 11 Plaintiff, ORDER DENYING MOTION TO 12 v. ACCEPT LATE FILING OF COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15
16 This matter comes before the Court on Plaintiff Kim Laube’s motion asking the Court to 17 accept her late filed complaint. Dkt. No. 6. The Commissioner has not responded to the motion. 18 For the reasons set forth below, the Court denies the motion. 19 “Any individual, after any final decision of the Commissioner of Social Security, . . . may 20 obtain a review of such decision by a civil action commenced within sixty days after the mailing 21 to him of notice of such decision or within such further time as the Commissioner of Social 22 Security may allow.” 42 U.S.C. § 405(g). A claimant who does not file a civil action within the 23 prescribed 60-day time frame loses the right to judicial review “unless [the claimant] can show 24 1 [the Commissioner] that there was good cause for [her] failure to make a timely request for 2 review.” See 20 C.F.R. § 404.900(b). A statute of limitations “must be strictly construed” because 3 it “is a condition on the waiver of sovereign immunity[.]” Bowen v. City of New York, 476 U.S. 4 467, 479 (1986). Consequently, absent an applicable exception, a court must dismiss a claimant’s
5 untimely complaint if it falls outside Congress’s express consent to suit. See Kaiser v. Blue Cross, 6 347 F.3d 1107, 1117 (9th Cir. 2003); Smith v. Comm’r of Soc. Sec. Admin., No. CV-24-03014- 7 PHX-JAT, 2025 WL 1025026, at *2 (D. Ariz. Apr. 4, 2025). Equitable tolling, which “is consistent 8 with Congress’ intent in enacting § 405(g),” can excuse an untimely appeal, but it is only in “the 9 rare case” that tolling applies. Bowen, 476 U.S. at 480–81; see also Baldwin Cnty. Welcome Ctr. 10 v. Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements established by Congress for gaining 11 access to the federal courts are not to be disregarded by courts out of a vague sympathy for 12 particular litigants.”). 13 Here, the Appeals Council issued a final decision on July 28, 2025, Dkt. No. 5 at 1, but 14 Laube did not file this action until October 27, 2025, Dkt. No. 1, approximately 26 days past the
15 deadline.1 Laube’s motion provides the following explanation for the late filing: 16 Due to a change of staff in the office, this Complaint had not been properly calendared and therefore was not filed timely. Internal measures have been taken 17 in order to avoid such a situation happening again. As the late filing does not cause prejudice to the Defendant, the Plaintiff respectfully requests that the Court accept 18 the late filing of this Complaint. 19 Dkt. No. 6 at 1. In violation of Local Civil Rule 7(b)(1), Laube did not supply an affidavit 20 substantiating these factual assertions regarding the cause of the late filing. Laube also does not 21 22 1 Although the statute of limitations starts to run on the date the claimant received the Commissioner’s notice of denial 23 of the claimant’s request for review, see 20 C.F.R. § 422.210(c), neither the complaint nor the motion states when receipt occurred, see generally Dkt. Nos. 5, 6. The notice is presumed to have been received five days after the date on the notice, so “[a] civil action filed within 65 days of the notice is presumed timely.” Williams v. Comm’r of Soc. 24 Sec., No. 1:17-cv-0760-JLT, 2019 WL 1556659, at *2 (E.D. Cal. Apr. 10, 2019) (citing regulations). 1 provide any legal basis supporting acceptance of her late filing, and the Court finds that she has 2 not established that the deadline should be equitably tolled. 3 Equitable tolling requires that a plaintiff show “(1) that [s]he has been pursuing [her] rights 4 diligently, and (2) that some extraordinary circumstance stood in [her] way.” Okafor v. United
5 States, 846 F.3d 337, 340 (9th Cir. 2017) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 6 (2005)); see also Holland v. Florida, 560 U.S. 631, 649 (2010). “Equitable tolling is typically 7 denied in cases where a litigant’s own mistake clearly contributed to his predicament.” Harris v. 8 Carter, 515 F.3d 1051, 1055 (9th Cir. 2008). Laube may have pursued her rights diligently by 9 retaining counsel, appealing the Administrative Law Judge’s denial of her claim to the Appeals 10 Council, and then appealing the Appeals Council’s denial to this Court. See Dkt. No. 5 at 1.2 11 However, she has not identified any extraordinary circumstances that prevented her from filing a 12 timely complaint. Her counsel’s calendaring error constitutes negligence, not an extraordinary 13 circumstance. For example, a Court in this district recently found that equitable tolling did not 14 apply when the same counsel who represents Laube argued that plaintiff’s four-day complaint
15 filing delay was “due to a new secretary in the office which incorrectly calculated the statute of 16 limitations.” Evans J.S. v. Comm’r of Soc. Sec., No. C24-5315 RSM, 2024 WL 4202162, at *2 17 (W.D. Wash. Sept. 16, 2024) (“Plaintiff’s untimely filing due to a miscalculation of dates is neither 18 a showing of due diligence nor an extraordinary circumstance under which the statute of 19 limitations should be equitably tolled.”). In Evans J.S., the fact that the filing delay was relatively 20 short—as it was here—did not bolster the case for equitable tolling. See id. (collecting cases). 21 Evans J.S. is consistent with Ninth Circuit authority declining to “recognize run-of-the mill 22 mistakes as grounds for equitable tolling because doing so would essentially equitably toll 23
2 Laube could have, but apparently did not, seek an extension of the complaint filing deadline from the Commissioner. 24 See 20 C.F.R. § 404.982. 1 limitations periods for every person whose attorney missed a deadline.” Okafor, 846 F.3d at 340 2 (citation modified); see also Lazerson v. Colvin, No. 4:13-cv-02832-YGR, 2014 WL 967048, *6 3 (N.D. Cal. Mar. 6, 2014) (denying equitable tolling because “this appears to be a case of attorney 4 negligence that does not warrant this extraordinary remedy”).
5 The Court notes that this is only the latest example of many of plaintiff’s counsel failing to 6 conform to the standard of practice in this Court. See, e.g., Katarena C. v. Comm'r of Soc. Sec., 7 No. C24-1663-SKV, 2025 WL 2730668, at *3 n.4 (W.D. Wash. Sept. 25, 2025) (same counsel as 8 instant case) (noting that counsel exhibited a “lack of diligence” in his briefing and warning that 9 “similar inadequate briefing in the future may not be considered”); Inman v. Comm’r, 24-cv- 10 01448-LK, Dkt. No. 14 at 4–5 (W.D. Wash. Sept. 22, 2025) (same counsel as instant case) (noting 11 that counsel’s briefing was skeletal and inadequate); Dianna H. v. Comm’r, No. 3:24-cv-05630- 12 TL, 2025 WL 1355379, at *2 (W.D. Wash. May 9, 2025) (same counsel as instant case) 13 (“Plaintiff’s three-paragraph brief and two-paragraph reply are skeletal and inadequate in every 14 way”); Dennis T. v. Comm'r of Soc. Sec., No. C19-5500-RAJ, 2020 WL 91491, at *2 (W.D. Wash.
15 Jan. 8, 2020) (same counsel as instant case) (“It is not enough merely to present an argument in 16 the skimpiest way, and leave the Court to do counsel’s work by framing the argument and putting 17 flesh on its bones through a discussion of the applicable law and facts.”). Counsel’s performance 18 not only reflects poorly on himself and his law firm; it has potentially irreparably harmed his 19 clients. The Court reminds counsel of his obligations under Local Civil Rule 83.3, and warns him 20 that it may initiate discipline if he violates the Standards of Professional Conduct or this court’s 21 Oath of Attorney in the future. LCR 83.3(c). The Court also ORDERS counsel to provide a copy 22 of this Order to his client and file an affidavit certifying that he has done so within 10 days of the 23 date of this Order.
24 1 Because Laube has failed to establish a basis to equitably toll the appeal deadline, the Court 2 DENIES her motion to accept the late filing of her complaint. Dkt. No. 6. 3 Dated this 1st day of December, 2025. 4 A
5 Lauren King United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23