United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
brought this action pursuant to 42 U.S.C. § 405(g) to
obtain judicial review of an administrative decision of the
Commissioner of Social Security. Defendant, the Acting
Commissioner of Social Security, moves to dismiss this action
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim as to which relief can be granted,
asserting that it was filed beyond the time limit permitted
by 42 U.S.C. § 405(g) (Doc. # 10). Plaintiff having
filed his response to the motion, seeking application of
equitable principles (Doc. # 11), and Defendant having filed
her reply (Doc. # 12), the motion is ripe for review. For the
reasons that follow, Defendant's motion to dismiss will
Factual and Procedural Background
August 20, 2014, an administrative law judge (ALJ) issued a
decision denying Plaintiff's claim for benefits under
Titles II and XVI. Plaintiff appealed to the SSA Appeals
Council, which, on December 21, 2015, sent him a notice
stating that it would not review the decision. This action by
the Appeals Council rendered the ALJ's decision the
“final decision” of the Commissioner.
notice was mailed to the Plaintiff at P.O. Box 143, Yeaddiss,
KY 41777-0143, and explained both that the decision was now
final, and that Coots had sixty days to contest it in court,
unless he could show that he did not receive the notice
within the five day grace period. If so, then he could
“ask the Appeals Council to extend his time to
file.” If not, then he would have to file his suit
within sixty-five days-or, by February 24, 2016. Plaintiff
did not request any extension to file a civil action as
explained in the notice. Rather, he thereafter filed his
complaint on April 19, 2016, almost two months late.
response to the Commissioner's motion, Plaintiff's
counsel infers that Plaintiff must have moved which explains
why he did not receive the Appeals Council's decision and
no appeal was taken by the deadline. Counsel submitted a
letter dated December 28, 2015, addressed to Coots' P.O.
Box in Yeaddiss, Kentucky, advising him of the decision. (See
Doc. # 11-1). Having heard no response from Coots, counsel
reached out to Coots' mother on April 7, 2016 and was
eventually able to reach Coots himself.
federal government “is immune from suit save as it
consents to be sued.” United States v.
Sherwood, 312 U.S. 584, 586 (1941). Therefore, Congress
decides how, and where, individuals may sue federal agencies.
See City of Tacoma v. Taxpayers of Tacoma, 357 U.S.
320, 336 (1958). When a person wants to sue the SSA, he must
follow the rules that Congress set out in the Social Security
Act. That Act includes a statute of limitations. 42 U.S.C.
§ 405(g). So if someone wants a federal court to review
a final SSA decision, he must seek review “within sixty
days after the mailing to him” of a notice of the
decision, or otherwise “within such further time as the
[SSA] may allow.” Id. This time limit helps
“move cases to a speedy resolution in a bureaucracy
[the SSA] that processes millions of claims annually.”
Bowen v. City of New York, 476 U.S. 467, 481 (1986).
two entities have the power to toll Section 405(g)'s time
limit. The first is the SSA, which may choose to give an
unsuccessful applicant more time to file his complaint in
federal court. 42 U.S.C. § 405(g). Here, the SSA has not
given Coots such an extension, a point that Coots does not
contest. However, even if the SSA does not use its statutory
power to toll the statute, the Court may use its equitable
powers to do so. Bowen, 476 U.S. at 480 (finding
such tolling “fully ‘consistent with the overall
congressional purpose'” of Section 405(g)). This is
the doctrine of equitable tolling. Where the “equities
in favor of tolling” are “great” enough,
the Court can toll the statute itself. Id.
question here is whether equitable tolling is warranted, and
before the Court can properly answer that, it must find the
right test. In Cook v. Comm'r of Soc. Sec., 480
F.3d 432, 437 (6th Cir. 2007), the Sixth Circuit opted for a
five-factor balancing test when deciding whether to toll
Section 405(g). However, that test was taken from its prior
habeas precedents. See Andrews v. Orr, 851 F.2d 146,
151 (6th Cir. 1988). More recently, the Supreme Court made a
new test the law-for habeas tolling cases, at least. This
test has two elements, both of which a tardy litigant must
satisfy before a court will use its equitable-tolling power.
See Holland v. Florida, 560 U.S. 631, 649 (2010).
The Court must consider, first, whether the litigant has
“been pursuing his rights diligently, ” and,
second, whether “some extraordinary circumstance”
prevented him from filing on time. Menominee Indian Tribe
of Wis. v. United States, 136 S.Ct. 750, 755 (2016)
(quoting Holland, 560 U.S. at 649). And not just any
old extraordinary circumstance, either. The circumstance must
have been “both extraordinary and beyond [the
litigant's] control.” Id. at 756. Although
neither Menominee nor Cook specifically
involved whether the two-part tolling test applies to Section
405(g), Judge Amul Thapar of our Court recently found that it
does. See Salyer v. Colvin, 2016 WL 6990765 (ED KY
Nov. 28, 2016). The Court agrees with Judge Thapar, and will
apply the two part test set forth in Menominee to
the facts here.
is therefore entitled to equitable tolling if he has
“been pursuing his rights diligently” but
“some extraordinary circumstance stood in his way and
prevented timely filing.” Menominee, 136 S.Ct.
at 755. A litigant satisfies the second part of the tolling
test “only where the circumstances that caused [his]
delay are both extraordinary and beyond [his] control.”
Id. at 756. Coots has failed to satisfy either
not keeping your attorney appraised of your mailing address,
which is what counsel infers, falls far short of conduct
evidencing someone who is pursuing their rights diligently.
To the contrary, it shows someone who really isn't
interested in continuing his legal battle with the SSA. If
appealing the case was so important to Coots, one would
expect him to keep in contact with his attorney. Second, the
circumstances which lead him to not receive the notice of the
Appeals Council's decision were neither extraordinary nor
most definitely beyond his control. Simply keeping his
attorney appraised of his address or other contact
information would have ameliorated the situation. Both ...