1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Deena Marie Lydy Vines, No. CV-19-05796-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is the Commissioner of the Social Security 16 Administration’s (“the Commissioner”) motion to dismiss Deena Marie Lydy Vines’s 17 (“Claimant”) amended complaint for failure to state a claim under Federal Rule of Civil 18 Procedure 12(b)(6). (Doc. 21). Claimant has not responded to the Commissioner’s motion, 19 and the Court now rules. 20 I. MOTION TO DISMISS 21 The Court previously dismissed Claimant’s original complaint because it was filed 22 the day after the sixty-day statute of limitations for filing a civil action to review the final 23 decision of the Commissioner expired. (See Doc. 17). The Court explained: 24 By statute, a claimant seeking review of a final decision of the Commissioner must commence a civil action “within 25 sixty days after the mailing to [her] of notice of such decision or within such further time as the Commissioner . . . may 26 allow.” 42 U.S.C. § 405(g). This sixty-day statute of limitations “is a condition on the waiver of sovereign immunity 27 and thus must be strictly construed.” Bowen v. City of New York, 476 U.S. 467, 479 (1986). Therefore, a court must 28 generally dismiss a plaintiff’s untimely complaint, even when only one day late, because such a suit would fall outside 1 Congress’s express consent to suit. See Kaiser v. Blue Cross, 347 F.3d 1107, 1117 (9th Cir. 2003); see also United States v. 2 Sherwood, 312 U.S. 584, 586 (1941) (explaining that “the terms of [Congress’s] consent to be sued in any court define 3 that court’s jurisdiction to entertain the suit”). 4 A court may allow an untimely complaint to proceed, however, for one of several reasons. First, the Social Security 5 Administration’s regulations “start the clock” on the sixty-day limitations period on the date an individual receives notice of 6 the Commissioner’s decision. 20 C.F.R. § 422.210(c). “[U]nless there is a reasonable showing to the contrary,” the 7 presumption is that an individual received the notice five days after the date on the letter. Id. Thus, courts have allowed 8 claimants to file beyond the sixty-day limitations period when they can show that the notice did not arrive within five days’ 9 time because of another party’s actions. For example, the claimant may show the Social Security Administration waited 10 more than five days to mail the notice. See, e.g., Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984); Chiappa v. 11 Califano, 480 F. Supp. 856, 857 (S.D.N.Y. 1979). On the other hand, a claimant cannot rebut the presumption with only 12 unsupported allegations of “non-receipt within five days.” McLaughlin v. Astrue, 443 F. App’x 571, 574 (1st Cir. 2011) 13 (per curiam); see also McCall v. Bowen, 832 F.2d 862, 864–65 (5th Cir. 1987) (holding that affidavits of claimant and counsel 14 claiming they did not receive notice until after the five-day period were insufficient to rebut the presumption). 15 Second, equitable estoppel and equitable tolling may 16 apply to stop the running of the sixty-day statute of limitations. Bowen, 476 U.S. at 480 (equitable tolling); Vernon v. Heckler, 17 811 F.2d 1274, 1278 (9th Cir. 1987) (equitable estoppel). “[W]hile tolling ‘focuses on the plaintiff’s excusable ignorance 18 of the limitations period and on lack of prejudice to the defendant,’ estoppel ‘focuses on the actions of the defendant.’” 19 Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc) (quoting Naton v. Bank of Cal., 649 F.2d 691, 696 20 (9th Cir. 1981)). Equitable estoppel will not lie in this context unless the party sought to be estopped engaged in “affirmative 21 misconduct.” Id. Although tolling does not require a showing of such misconduct, a plaintiff must generally still show “(1) 22 that [s]he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.” Okafor 23 v. United States, 846 F.3d 337, 340 (9th Cir. 2017) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 24 Extraordinary circumstances generally exist where a complainant was tricked (whether by a defendant’s affirmative 25 misconduct or by misleading information from a court) into letting the deadline pass. See Baldwin Cty. Welcome Ctr. v. 26 Brown, 466 U.S. 147, 151 (1984). 27 (Id. at 3–4) (footnote omitted). 28 1 The Court ruled that Claimant’s complaint did not allege facts demonstrating that 2 she received the notice of the Commissioner’s decision later than the presumptive five days 3 after mailing, nor did she allege facts that could support equitable estoppel or equitable 4 tolling. (Id. at 4–6). The Court, however, dismissed Claimant’s complaint without 5 prejudice to allow her to “affirmatively plead facts that, if proven, would entitle her to 6 equitable tolling or rebut the five-day presumption.” (Id. at 6). 7 Claimant’s amended complaint does not reference the specific date she received the 8 notice of the Commissioner’s decision, but Claimant continues to acknowledge that she 9 did not file this action within the statutory sixty-day window. (See Doc. 20 at 4). Claimant’s 10 amended complaint instead states that she filed her complaint “late due to [her] issues going 11 on at that time with [her] health and the stress of Judge Cates Jr.’s decision” and that she 12 had “not been given the full length of time to respond as it would seem due to ongoing 13 issues with mail service that has been experienced in [her] neighborhood.” (Doc. 20 at 4, 14 5). 15 The Commissioner argues that the Court should dismiss Claimant’s amended 16 complaint because these vague allegations are insufficient to warrant equitable tolling. 17 (Doc. 21 at 7–8). The Court agrees. Claimant’s original complaint suggested that the notice 18 of the Commissioner’s decision may have arrived late due to a holiday, and the Court ruled 19 that “such an unsupported assertion does not suffice to rebut the presumptive date of 20 delivery.” (Doc. 17 at 5). The current unsupported and speculative assertion in the amended 21 complaint that it “seem[s]” her neighborhood had been experiencing unspecified mail 22 service issues is equally insufficient. The amended complaint does not describe, for 23 example, what these mail service issues are or how they affected the receipt of the notice 24 of the Commissioner’s decision. Absent specific factual allegations that, if proven, would 25 demonstrate the notice arrived after the presumptive five-day period or specific allegations 26 that permit such an inference, the amended complaint does not demonstrate a potential 27 entitlement to relief. See Fed. R. Civ. P.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Deena Marie Lydy Vines, No. CV-19-05796-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is the Commissioner of the Social Security 16 Administration’s (“the Commissioner”) motion to dismiss Deena Marie Lydy Vines’s 17 (“Claimant”) amended complaint for failure to state a claim under Federal Rule of Civil 18 Procedure 12(b)(6). (Doc. 21). Claimant has not responded to the Commissioner’s motion, 19 and the Court now rules. 20 I. MOTION TO DISMISS 21 The Court previously dismissed Claimant’s original complaint because it was filed 22 the day after the sixty-day statute of limitations for filing a civil action to review the final 23 decision of the Commissioner expired. (See Doc. 17). The Court explained: 24 By statute, a claimant seeking review of a final decision of the Commissioner must commence a civil action “within 25 sixty days after the mailing to [her] of notice of such decision or within such further time as the Commissioner . . . may 26 allow.” 42 U.S.C. § 405(g). This sixty-day statute of limitations “is a condition on the waiver of sovereign immunity 27 and thus must be strictly construed.” Bowen v. City of New York, 476 U.S. 467, 479 (1986). Therefore, a court must 28 generally dismiss a plaintiff’s untimely complaint, even when only one day late, because such a suit would fall outside 1 Congress’s express consent to suit. See Kaiser v. Blue Cross, 347 F.3d 1107, 1117 (9th Cir. 2003); see also United States v. 2 Sherwood, 312 U.S. 584, 586 (1941) (explaining that “the terms of [Congress’s] consent to be sued in any court define 3 that court’s jurisdiction to entertain the suit”). 4 A court may allow an untimely complaint to proceed, however, for one of several reasons. First, the Social Security 5 Administration’s regulations “start the clock” on the sixty-day limitations period on the date an individual receives notice of 6 the Commissioner’s decision. 20 C.F.R. § 422.210(c). “[U]nless there is a reasonable showing to the contrary,” the 7 presumption is that an individual received the notice five days after the date on the letter. Id. Thus, courts have allowed 8 claimants to file beyond the sixty-day limitations period when they can show that the notice did not arrive within five days’ 9 time because of another party’s actions. For example, the claimant may show the Social Security Administration waited 10 more than five days to mail the notice. See, e.g., Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984); Chiappa v. 11 Califano, 480 F. Supp. 856, 857 (S.D.N.Y. 1979). On the other hand, a claimant cannot rebut the presumption with only 12 unsupported allegations of “non-receipt within five days.” McLaughlin v. Astrue, 443 F. App’x 571, 574 (1st Cir. 2011) 13 (per curiam); see also McCall v. Bowen, 832 F.2d 862, 864–65 (5th Cir. 1987) (holding that affidavits of claimant and counsel 14 claiming they did not receive notice until after the five-day period were insufficient to rebut the presumption). 15 Second, equitable estoppel and equitable tolling may 16 apply to stop the running of the sixty-day statute of limitations. Bowen, 476 U.S. at 480 (equitable tolling); Vernon v. Heckler, 17 811 F.2d 1274, 1278 (9th Cir. 1987) (equitable estoppel). “[W]hile tolling ‘focuses on the plaintiff’s excusable ignorance 18 of the limitations period and on lack of prejudice to the defendant,’ estoppel ‘focuses on the actions of the defendant.’” 19 Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc) (quoting Naton v. Bank of Cal., 649 F.2d 691, 696 20 (9th Cir. 1981)). Equitable estoppel will not lie in this context unless the party sought to be estopped engaged in “affirmative 21 misconduct.” Id. Although tolling does not require a showing of such misconduct, a plaintiff must generally still show “(1) 22 that [s]he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.” Okafor 23 v. United States, 846 F.3d 337, 340 (9th Cir. 2017) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 24 Extraordinary circumstances generally exist where a complainant was tricked (whether by a defendant’s affirmative 25 misconduct or by misleading information from a court) into letting the deadline pass. See Baldwin Cty. Welcome Ctr. v. 26 Brown, 466 U.S. 147, 151 (1984). 27 (Id. at 3–4) (footnote omitted). 28 1 The Court ruled that Claimant’s complaint did not allege facts demonstrating that 2 she received the notice of the Commissioner’s decision later than the presumptive five days 3 after mailing, nor did she allege facts that could support equitable estoppel or equitable 4 tolling. (Id. at 4–6). The Court, however, dismissed Claimant’s complaint without 5 prejudice to allow her to “affirmatively plead facts that, if proven, would entitle her to 6 equitable tolling or rebut the five-day presumption.” (Id. at 6). 7 Claimant’s amended complaint does not reference the specific date she received the 8 notice of the Commissioner’s decision, but Claimant continues to acknowledge that she 9 did not file this action within the statutory sixty-day window. (See Doc. 20 at 4). Claimant’s 10 amended complaint instead states that she filed her complaint “late due to [her] issues going 11 on at that time with [her] health and the stress of Judge Cates Jr.’s decision” and that she 12 had “not been given the full length of time to respond as it would seem due to ongoing 13 issues with mail service that has been experienced in [her] neighborhood.” (Doc. 20 at 4, 14 5). 15 The Commissioner argues that the Court should dismiss Claimant’s amended 16 complaint because these vague allegations are insufficient to warrant equitable tolling. 17 (Doc. 21 at 7–8). The Court agrees. Claimant’s original complaint suggested that the notice 18 of the Commissioner’s decision may have arrived late due to a holiday, and the Court ruled 19 that “such an unsupported assertion does not suffice to rebut the presumptive date of 20 delivery.” (Doc. 17 at 5). The current unsupported and speculative assertion in the amended 21 complaint that it “seem[s]” her neighborhood had been experiencing unspecified mail 22 service issues is equally insufficient. The amended complaint does not describe, for 23 example, what these mail service issues are or how they affected the receipt of the notice 24 of the Commissioner’s decision. Absent specific factual allegations that, if proven, would 25 demonstrate the notice arrived after the presumptive five-day period or specific allegations 26 that permit such an inference, the amended complaint does not demonstrate a potential 27 entitlement to relief. See Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief 28 must contain . . . a short and plain statement of the claim showing that the pleader is entitled 1 to relief.”). 2 Claimant’s allegation that health issues and stress prevented her from filing her 3 claim on time is similarly insufficient. Claimant does not state what specific health issues 4 or symptoms prevented her from timely filing her claim or why. Also, to the extent this 5 allegation relates to the distress that resulted from the Commissioner’s denial of her claim 6 that Claimant alleged in her original complaint, the Court’s prior dismissal ruled that this 7 is insufficient to show an extraordinary circumstance. (See Doc. 17 at 6 (“Perhaps even 8 more fundamentally, though, her emotional reaction simply has nothing to do with whether, 9 in the exercise of reasonable diligence, she could not have discovered essential information 10 bearing on her claim. In fact, it only goes to show that she was well aware of the decision 11 against her.” (citation omitted))). 12 Claimant also cites the Social Security Commission’s Program Operations Manual 13 System, which provides that good cause for late filing may include that “[C]laimant’s 14 physical, mental, educational, or linguistic limitations (including any lack of facility with 15 the English language) prevented him or her from timely filing an appeal request.” See 16 Social Security Administration, Program Operations Manual System (POMS), GN 17 03101.020(B). As the Court stated in its prior order, however, “this standard applies to the 18 Commissioner’s decision to extend the time to file rather than to a judicial determination 19 of equitable tolling.” (Doc. 17 at 5). Claimant’s amended complaint does not allege that 20 she requested an extension of the time to file with the Commissioner or that the 21 Commissioner committed any legal error. 22 In sum, the Court acknowledges that Claimant is trying to challenge the factual basis 23 for the Commissioner’s decision. However, the Court cannot consider this challenge unless 24 Claimant filed her complaint within sixty days after receiving the notice of the 25 Commissioner’s decision or she pleads facts that could support equitable tolling or 26 equitable estoppel. Claimant’s amended complaint does not do so. It fails to state a claim 27 upon which relief can be granted because it is not apparent from the face of the complaint 28 that Claimant timely filed the claim, and the amended complaint does not allege facts that 1 || could support equitable estoppel or equitable tolling. Accordingly, the Court grants the 2 || Commissioner’s motion to dismiss. 3 Having given Claimant leave to amend to cure these specific deficiencies, and Claimant having failed to do so, the Court finds giving Claimant another opportunity to 5 || amend on the exact same deficiency would be futile. Moreover, Claimant failed to contest 6|| the Commissioner’s second motion to dismiss, which would have been yet another || opportunity to inform the Court of any facts she had to cure this deficiency, and she again 8 || failed to do so. 9|| II CONCLUSION 10 For the foregoing reasons, 11 IT IS ORDERED that the Commissioner’s motion to dismiss (Doc. 21) is 12 || GRANTED. Claimant’s amended complaint (Doc. 20) is dismissed without prejudice. The 13 || Clerk of the Court shall enter judgment accordingly. 14 Dated this 25th day of November, 2020. 15 16 i C 17 James A. Teilborg 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 28
_5-