Summary
In Velazquez, the plaintiff did submit an affidavit from her attorney, but it was truly a bare assertion: "the Plaintiff did not receive his copy of the Notice from the Appeals Council until October 2, 2000."
Summary of this case from Tribby v. ColvinOpinion
4:00CV3320
February 21, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff filed a complaint seeking review of the Commissioner of Social Security's decision denying the plaintiff's application for disability benefits. See filing 1. The defendant moved to dismiss the complaint, arguing that it was untimely. See filing 9. Both parties submitted evidence outside the pleadings in connection with this motion. I therefore converted the motion into one for summary judgment and afforded the parties an opportunity to submit additional evidence and argument. See filing 11 at 4. The plaintiff has now filed a second affidavit from his attorney with supporting exhibits. See filing 15. The plaintiff has also submitted a second brief. The Commissioner has not submitted any additional evidence or argument. After reviewing the materials before me, I find that the defendant's converted motion for summary judgment will be denied.
I. Standard of Review
A motion for summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In this case, it does not appear that there are any disputed factual issues regarding the timeliness of the plaintiff's complaint. Thus, I need only determine whether the defendant is entitled to judgment as a matter of law.
II. Analysis
The procedure for obtaining judicial review of the Commissioner's decision is governed by 42 U.S.C. § 405(g), which 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). According to the applicable regulation, notice of the decision is presumed to be received five days after the date of the notice, "unless there is a reasonable showing to the contrary." 20 C.F.R. § 422.210(c). In this case, the notice of the Appeals Council's decision denying the plaintiff's request for review is dated September 22, 2000. See filing 10 at Ex. 2; see also filing 10 ¶ 3(a) (Declaration of Bill Cho) (stating that the decision was mailed on September 22, 2000). The plaintiff's complaint is file-stamped December 6, 2000. There is no indication that the Commissioner has allowed the plaintiff any additional time to seek judicial review. Thus, the defendant argues, the plaintiff's complaint is untimely, as it should have been filed on or before Monday, November 27, 2000, to satisfy the requirements of § 405(g).
In response, the plaintiff raises two arguments. First, the plaintiff attempts to rebut the presumption that he received the Appeals Council's notice within five days of the date of the notice. See 20 C.F.R. § 422.210(c). According to the plaintiff, he did not actually receive the notice until October 2, 2000. The only evidence that the plaintiff submits to support this claim is the affidavit of his attorney, who simply states that "[t]he Plaintiff did not receive his copy of the Notice from the Appeals Council until October 2, 2000." Filing 15 ¶ 1. This bare assertion however, is not the type of "reasonable showing" contemplated by the applicable regulation. 20 C.F.R. § 422.210(c); see, e.g., McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987) (agreeing that the plaintiff failed to rebut the five-day presumption where his only evidence consisted of statements by himself and his attorney denying that they received notice within the five-day period); Roberts v. Shalala, 848 F. Supp. 1008, 1012 (M.D.Ga. 1994) (concluding that the plaintiff failed to rebut the presumption where the plaintiff testified in court that she did not know when she received the notice and the affidavits she submitted "deal[t] only with possibilities and speculations as to dates and actions . . ."); Leslie v. Bowen, 695 F. Supp. 504, 506 (D.Kan. 1988) ("This court agrees the rebuttable presumption would serve little purpose if an affidavit stating a later date of notice constituted a reasonable showing to the contrary."); Rouse v. Harris, 482 F. Supp. 766, 769 (D.N.J. 1980) ("Although the court presumes that these statements, like all statements made or offered by an officer of the court, are made in good faith, they cannot provide a substitute for a more concrete showing that the plaintiff or her attorney actually did not receive the Secretary's notice within five days of the date of mailing. Otherwise this court would be creating an exception to the Act by which a tardy claimant could avoid the jurisdictional requirements by merely asserting a late delivery of the notice of the Secretary's decision."); Marte v. Apfel, 1998 WL 292358, at *2 (S.D.N.Y. June 3, 1998) ("[A] plaintiff must do more than merely assert that he did not receive the notice within five days. . . . Rather, a plaintiff must present some affirmative evidence indicating that actual receipt occurred more than five days after issuance." (citations omitted)); see also Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984) (finding that the plaintiff rebutted the five-day presumption where the evidence indicated that the notice was not even mailed until seven days after the date of the notice); Gibbs v. Harris, 501 F. Supp. 124, 125 (D.Md. 1980), aff'd, 665 F.2d 1039 (4th Cir. 1981) (concluding that the plaintiff made a "reasonable showing to the contrary" where the agency's files indicated that the plaintiff had never received the notice); Chiappa v. Califano, 480 F. Supp. 856, 857 (S.D.N.Y. 1979) (finding that the plaintiff overcame the presumption where the plaintiff had sold the house to which the notice was sent, the notice itself was marked with the date it was received, and the letter carrier who personally delivered the notice confirmed the plaintiff's assertion as to when the notice was received). Accordingly, I agree with the defendant that the sixty-day limitations period began running on September 27, 2000.
Next, the plaintiff argues that the complaint should be deemed filed on November 22, 2000, or, alternatively, that the doctrine of equitable tolling saves his complaint from the limitations bar. In my prior memorandum and order, I rejected the plaintiff's former argument. See filing 11 at 2-3. Compare Bishop v. Apfel, 91 F. Supp.2d 893, 894 (W.D.Va. 2000) (concluding that where the plaintiff's complaint and in forma pauperis application were submitted within the sixty-day limitations period, but the application was denied after the limitations period had expired, "the best rule is that . . . the relevant period of limitations is suspended until the court rules on the application"), with Hatchell v. Heckler, 708 F.2d 578, 579 (11th Cir. 1983) (concluding that the prisoner plaintiff had "sufficiently complied with the filing requirement" by submitting his complaint and motion to proceed in forma pauperis within the limitations period), and Wells v. Apfel, 103 F. Supp.2d 893, 896 (W.D.Va. 2000) (concluding that "the better rule would be to find that, for purposes of determining whether [the plaintiff's] civil action was commenced within the limitations period, her complaint was `filed' as of . . . the date on which it was first received by the clerk's office," even though the complaint was not file-stamped until several months later, after the plaintiff's motion to proceed in forma pauperis was denied and the plaintiff paid the $150.00 filing fee). I shall therefore focus my analysis on whether equitable tolling is appropriate in this case.
Both the United States Supreme Court and the Eighth Circuit have recognized that § 405(g)'s limitations period may be equitably tolled under certain circumstances. See Bowen v. City of New York, 476 U.S. 467, 480 (1986); Turner v. Bowen, 862 F.2d 708, 710 (8th Cir. 1988). According to the circuit court:
Generally, equitable circumstances that might toll a limitations period involve conduct (by someone other than the claimant) that is misleading or fraudulent. . . . "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." . . . And this court has recognized the principle that "ignorance of legal rights does not toll a statute of limitations."Turner, 862 F.2d at 710 (citations omitted). The Supreme Court has also explained that while tolling may be appropriate in situations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period," the Court has generally been "much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (note and citations omitted).
In opposing the defendant's motion, the plaintiff's attorney, Mary Stoughton Wenzl, has submitted an affidavit with supporting exhibits. See filing 15. In her affidavit, Wenzl states that on November 22, 2000, a complaint, a civil cover sheet, a motion for leave to proceed in forma pauperis, and an unsigned affidavit in support of the motion were submitted to the clerk's office. See id. ¶¶ 2, 4. A review of the file shows that the backs of the complaint, the cover sheet, and the motion are marked as received in the clerk's office on November 22. See filings 1, 2; see also filing 15 at Ex. C, D. According to Wenzl, she requested that United States Judge Magistrate Judge David Piester allow additional time for the plaintiff to provide a signed affidavit in support of his motion. See filing 15 ¶ 4; see also Affidavit by Plaintiff's Attorney ¶ 3 (attached to the plaintiff's Response to the Defendant's Motion to Dismiss). Wenzl states that after the clerk contacted the magistrate judge's chambers and learned that Magistrate Judge Piester would not be returning to the office until November 27, she submitted a check in the amount of $150.00 to the clerk. See filing 15 ¶¶ 4, 5. Wenzl asserts that "[i]t was [her] understanding that should Magistrate [Judge] Piester not grant the request upon his return that the $150.00 check would be used for the filing fee and November 22, 2000[,] be the date of filing." Id. ¶ 5; see also id. ¶ 10 ("Plaintiff and his Attorney assumed that, since the Clerk had the filing fee check in hand with the Complaint, that the matter would be treated as filed the date the Complaint was presented to the Clerk's office, and not the date that the Magistrate [Judge] actually signed the Order Granting in Forma Pauperis Status.").
According to Wenzl, she received a phone message on November 27, 2000, from the magistrate judge's office indicating that Magistrate Judge Piester would sign the order granting in forma pauperis status when the signed affidavit was received. See id. ¶ 6; id. at Ex. E. The plaintiff signed the affidavit on November 28. See filing 2. The back of the affidavit is marked as received by the clerk's office on November 30. See id.; see also filing 15 at Ex. G. Magistrate Judge Piester then granted the plaintiff's motion for leave to proceed in forma pauperis in an order dated and filed on December 6. See filing 3. Both the plaintiff's motion and his complaint are also file-stamped December 6. See filing 2, 1. Wenzl states that the $150.00 check was later returned to her. See filing 11 ¶ 9. As noted above, the defendant has not submitted any evidence challenging the plaintiff's version of events.
Based on facts outlined above, I am persuaded that the circumstances here justify tolling the sixty-day statute of limitations. This is simply not a case where the claimant "failed to exercise due diligence in preserving his legal rights." Irwin, 498 U.S. at 96 (citation omitted); see also Chiappa, 480 F. Supp. at 857 (noting that the facts indicated that the plaintiff "was not sleeping on his rights"). To the contrary, it appears that as of November 22, 2000, five days before the expiration of the limitations period, plaintiff's counsel had submitted the documents necessary to commence a civil action, as well as the requisite $150.00 filing fee to protect her client in the event that his motion for leave to proceed in forma pauperis was denied. While the evidence before me does not demonstrate that the clerk's office acted in a manner designed to mislead or deceive plaintiff's counsel as to when the complaint would be file-stamped, counsel's understanding of the situation was certainly reasonable. See Turner, 862 F.2d at 710; see also Medellin v. Shalala, 23 F.3d 199, 204 (8th Cir. 1994) ("[A]lthough a secret, internal policy is probably not a prerequisite to equitable tolling, some type of misconduct on the part of the agency or gross, but good-faith, error on the part of the claimant should justify this extraordinary remedy."). In short, the circumstances outlined by plaintiff's counsel are more analogous to those cases "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period," than those involving "a garden variety claim of excusable neglect." See Irwin, 498 U.S. at 96 (note omitted). Accordingly, I find that in this case, the equities lie in favor of tolling the statute of limitations for the interval between November 22, 2000, and December 6, 2000. I also find that the plaintiff's complaint, filed on December 6, 2000, was timely filed. The defendant's motion for summary judgment will therefore be denied.
IT IS ORDERED that the defendant's converted motion for summary judgment will be denied. The defendant is directed to answer the plaintiff's complaint by March 20, 2002. A briefing schedule will be entered thereafter.