Opinion
01 Civ. 2656 (GBD) (GWG)
December 21, 2001
REPORT AND RECOMMENDATION To the Honorable George B. Daniels
Plaintiff pro se Donald Schoon seeks to challenge a determination by the Social Security Administration that he is not entitled to disability benefits. For the reasons stated below, the Government's motion to dismiss the complaint should be granted.
Background
For purposes of deciding this motion, all allegations in the complaint are assumed to be true.
Schoon made an application for Social Security disability benefits, which was denied. Complaint, ¶ 6. On October 23, 1997, following a hearing before an Administrative Law Judge, Schoon's claim was again denied. Id., ¶ 7; see Letter dated December 8, 1999 (attached to Complaint) (hereafter, "December 8 Letter") at 1. Schoon sought review by the Social Security Administration's Appeals Council and on December 8, 1999, the Appeals Council affirmed the Administrative Law Judge's decision denying benefits. Complaint ¶ 8; December 8 Letter at 1. Schoon received the letter denying his benefits on December 10, 1999. Complaint ¶ 8. The letter informed Schoon that to obtain judicial review he was required to file a complaint within 60 days. See December 8 Letter at 1.
Schoon's complaint is dated December 21, 2000, and was submitted to the Pro Se Office on January 22, 2001. It was filed with the District Court on March 28, 2001. On July 27, 2001, Schoon filed a motion seeking interim benefits, which was denied by Order dated August 20, 2001.
On October 16, 2001, the Government filed a notice of motion seeking an order "dismissing this action." The memorandum of law filed therewith sought dismissal based on a "lack of jurisdiction," citing to Fed.R.Civ.P. 12(b)(1). As of November 6, 2001, Schoon had not filed any opposition to the motion. Accordingly, on that date, the Court issued an order directing Schoon to file a response on or before December 6, 2001. It warned Schoon that if he failed to do so, the motion to dismiss could be granted on default. As of the instant date, no opposition has been filed with the Court. Discussion Claims arising under the Social Security Act for Supplemental Security Income Benefits are governed by 42 U.S.C. § 405(g) and 405(h), as incorporated by 42 U.S.C. § 1383(c)(3). Section 405(g) provides that an "individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . 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 may allow." Section 405(g) is the exclusive remedy for seeking review of a final decision of the Commissioner. See 42 U.S.C. § 405(h) ("No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided.").
As stated in the Complaint, ¶ 8, Schoon received the Appeals Council decision on December 10, 1999. This decision constituted the "final decision" of the agency, which gave him 60 days from the date of his receipt of the decision to seek judicial review by filing an action in district court. See 20 C.F.R. § 422.210(c). The complaint does not allege that Schoon sought or received an extension of this deadline. As a result, Schoon had until February 9, 2000, to file his complaint. Schoon's complaint, however, was not presented to the Pro Se Office of this Court until January 22, 2001, more than a year following his receipt of the final decision of the agency.
The Government too is unaware of any extension. See Declaration of Michael J. Riley, filed October 16, 2001, ¶ 3(b).
Thus, the complaint on its face indicates that Schoon's complaint was filed long after the 60-day time limit contained in section 405(g). Because the statute of limitations has expired, and Schoon has provided no reason why it could be tolled, see Bowen v. City of New York, 476 U.S. 467, 479-80 (1986), his complaint must be dismissed as time-barred. See, e.g., Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988) (complaint filed 20 days after expiration of deadline deemed time-barred).
While Schoon does not allege in his complaint that any activity occurred with respect to his application following the December 8, 1999, Appeals Council decision, Schoon has attached papers to his complaint reflecting that he made a new request for benefits in the year 2000. As there is no documentation or even allegation that any new application for benefits was appealed to the Appeals Council, any efforts by Schoon to seek benefits from the agency following the issuance of the December 8 letter are irrelevant to this motion.
The Government argues that the failure to abide by the statute of limitations means that Schoon's complaint "must be dismissed for lack of jurisdiction," presumably a reference to subject matter jurisdiction. See Defendant's Memorandum of Law In Support of His Motion to Dismiss for Lack of Jurisdiction, filed October 16, 2001, at 4. The Government's brief cites Wong v. Bowen for this proposition. Wong, however, does not even mention subject matter jurisdiction let alone hold (as the Government's brief contends) that a time-barred complaint under section 405(g) must be dismissed for lack of subject matter jurisdiction. Indeed, the Supreme Court stated precisely the opposite in Bowen v. City of New York when it held that "[t]he 60-day requirement [of 42 U.S.C. § 405(g)] is not jurisdictional but rather constitutes a statute of limitations." 476 U.S. at 478 (emphasis added). Strangely, the Government's brief does not discuss this aspect of City of New York and this Court is unaware of its having been overruled. Thus, the Court rejects the Government's argument that Schoon's failure to timely file means that the complaint should be dismissed under Fed.R.Civ.P. 12(b)(1).
The complaint must be dismissed, however, under Fed.R.Civ.P. 12(b)(6). See, e.g., Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25-26 (3d Cir. 1989) (action properly dismissed under Fed.R.Civ.P. 12(b)(6) where the allegations of the complaint show it is time-barred). Accordingly, the Court will treat the Government's motion as having been brought under Fed.R.Civ.P. 12(b)(6) rather than Fed.R.Civ.P. 12(b)(1). There is obviously no prejudice to Schoon in the Court's converting the instant motion to one brought under 12(b)(6) as Schoon was explicitly on notice of the Government's argument that he had failed to timely file the complaint. Cf. In re G. A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985) (appropriate to treat motion to dismiss as motion for summary judgment where losing party had reasonable opportunity to oppose the motion), cert. denied, 475 U.S. 1015 (1986).
Conclusion
For the foregoing reasons, the complaint should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, New York, New York 10007, and the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Daniels. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985).