Opinion
02 CIV. 194 (DLC)
April 1, 2002
Christopher James Bowes, Center for Disability Advocacy Rights, Inc., New York, NY, For plaintiff.
Lorraine S. Novinski, Assistant United States Attorney, United States Attorney's Office, New York, NY, For defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Juanita Davila ("Davila") commenced this action pursuant to 42 U.S.C. § 405(g), for judicial review of the decision of the Commissioner of Social Security (the "Commissioner") that she is not disabled. The Commissioner moves to dismiss the complaint as time barred. For the reasons that follow, briefing is requested on whether the mistaken belief of plaintiff's attorney that the complaint was filed on a timely basis is a ground for equitable estoppel.
BACKGROUND
On December 20, 2000, an administrative law judge issued a decision finding that the plaintiff was not disabled and was not entitled to supplemental security income benefits. Plaintiff sought review of this decision, and the Appeals Council denied that request by letter dated October 31, 2001 (the "Notice"). The Notice advised the plaintiff of her right to appeal the Commissioner's decision by commencing a civil action in the appropriate court within sixty days after receipt of the Notice. The Notice also notified plaintiff that, absent a reasonable showing to the contrary, it would be presumed that the Notice was received within five days after the date appearing on its face. Based on the date of October 31, 2001, the plaintiff is presumed to have received the Notice on November 5, 2001. Adding sixty days to the presumed date of receipt, a timely complaint would have been filed by January 4, 2002. Plaintiff's complaint was filed on January 7, 2002, a Monday.
Plaintiff contends that her complaint should be deemed timely because, although she cannot recall when she received the Notice, the postmark on the envelope that contained it demonstrates that the Notice was actually mailed on November 1, 2001. Davila argues that the five day presumption for receipt of the Notice should be calculated from the date of mailing, not the date printed on the Notice. The Appeals Council also sent a copy of the Notice to Davila's attorney, who received the Notice but has been unable to locate the Notice despite his office's "normal practice" of indicating the date of receipt on the envelope, stapling the envelope to the notice, and placing it in the claimant's file. Davila explains that her complaint was filed on the "last possible day" because she has been unable to keep appointments with her attorney due to illness.
Calculating the five days from November 1, Davila would be presumed to have received the Notice by November 6, 2001. Adding sixty days for the timely commencement of an action yields January 5, 2002. Because January 5 was a Saturday, under the regulations, Davila's complaint would be timely if filed by January 7, 2002, the next business day. See 42 U.S.C. § 416(j).
DISCUSSION
The Social Security Act provides in relevant part as follows:
Any 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.42 U.S.C. § 405(g) (emphasis supplied). The applicable regulations construe this section as providing that the sixty-day period commences when the notice is received by the claimant, and that the date of receipt is "presumed" to be five days after the date of the notice absent a "reasonable showing" to the contrary. 20 C.F.R. § 422.210(c); Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984) (emphasizing that period begins upon receipt, rather than mailing of notice). To rebut the presumption, "a plaintiff must present some affirmative evidence indicating that actual receipt occurred more than five days after issuance." Marte v. Apfel, No. 96 Civ. 9024 (LAP), 1998 WL 292358, at *2 (S.D.N.Y. June 3, 1998) (collecting cases). The sixty-day time limit is strictly construed because it defines the terms on which the United States waives its sovereign immunity and consents to be sued. Bowen v. City of New York, 476 U.S. 467, 479 (1986); Randell v. United States, 64 F.3d 101, 106 (2d Cir. 1995).
Davila has not rebutted the presumption of receipt within five days from the date of the Notice. She has not made a reasonable showing that she did not receive the Notice within five days of its issuance. While the Notice was sent out on November 1, one day after its date of issuance, neither Davila nor her attorney remembers when they received the Notice. It is entirely reasonable to presume that they received it within four days of its mailing.
In Matsibekker, the claimant successfully rebutted the presumption of receipt within five days by showing that the notice in that case was not actually mailed until seven days after its date. Matsibekker, 738 F.2d at 81. No such showing has been made by the plaintiff here. While at least one court has measured the five-day period within which receipt is presumed from the date of mailing, McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987), in McCall it was unreasonable to presume that the notice was received within five days of its issuance since it was not mailed until seven days after its issuance.
Davila has not expressly argued that equitable tolling permits an extension of the sixty-day period in which a claimant may bring suit under Section 405(g). She has, however, explained that her complaint was filed on the "last possible day" because her illness prevented her from meeting with her attorney. While the doctrine of equitable tolling may be applied to Section 405(g), see City of New York, 476 U.S. at 480 (citation omitted), it should be done so only in rare cases. For example, the doctrine is applied where the Government has engaged in clandestine or otherwise misleading conduct, see id., where the claimant fails to seek judicial review in a timely manner because of a mental impairment, Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991), or in other appropriate circumstances, Hernandez v. Sullivan, No. 91 Civ. 1836 (LBS), 1991 WL 243451, at *2 (S.D.N.Y. Nov. 8, 1991) (pro se claimant followed incorrect advice of counsel) (collecting cases).
Davila's illness is not a proper ground on which to equitably toll in this case. Davila explains the delay solely on the ground that her ill health prevented her from keeping her appointment with her attorney. Allowing disability claimants who have been denied benefits "to toll the sixty-day period on grounds of poor health would thoroughly undermine Section [405(g)'s] sixty-day limitation period." Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988) (per curiam).
The plaintiff's attorney explains what happened here in the following way. He "can only surmise" that he was certain that the sixty-day period ended on Saturday, January 5, and therefore that a complaint filed on January 7 would be timely. When computing the date for the filing of the complaint, he was not relying on the date the Notice was mailed. The parties are instructed to brief the issue of whether the miscalculation by one day of the relevant statutory period by the plaintiff's attorney, constitutes a proper basis for the application of equitable estoppel.
CONCLUSION
The additional briefing required for this motion shall be governed by a Scheduling Order issued in conjunction with this Opinion.
SO ORDERED: