United States District Court, E.D. Texas, Beaumont Division
ORDER DISMISSING CASE
Hawthorn, United States Magistrate Judge
Plaintiff, Stephanie Robison, requests judicial review of a
final decision of the Commissioner of Social Security
Administration with respect to her application for
disability-based benefits. This action is before the
undersigned United States Magistrate Judge by consent of the
parties for review, hearing if necessary, and a decision on
appeal. (Doc. Nos. 3, 14, 15, 16.)
March 11, 2019, Robison filed this pro se action
pursuant to 42 U.S.C. § 405(g) appealing the
Commissioner's decision to deny social security
disability benefits and motion to proceed in forma
pauperis. (Doc. Nos. 1, 2.) The Commissioner filed a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on May
15, 2019, claiming that Robinson missed the deadline to file
her appeal. (Doc. No. 11.) On May 15, 2019, the court issued
an order requiring Robison to file a response to the
Commissioner's motion to dismiss on or before June 21,
2019. (Doc. No. 12.) To date, Robison has failed to comply with
the court's order requiring her to respond to the
Commissioner's motion to dismiss or answer the questions
presented in the May 15, 2019 court order.
205(g) and (h), and 405 (g) and (h), expressly limit judicial
review of the Social Security Act. Under these provisions, a
plaintiff must present her claims in the district court
within sixty days after the mailing of the notice of a final
decision, or within such further time as the Commissioner may
allow. 42 U.S.C. § 405(g).
sixty-day time limit to file a civil action is a waiver of
sovereign immunity. Bowen v. City of N.Y., 476 U.S.
467, 479 (1986) (“Petitioners next contend that if the
60-day limit is a statute of limitations, it is a condition
on the waiver of sovereign immunity and thus must be strictly
construed. We have no difficulty agreeing with that
statement”). Therefore, the “60-day requirement
is not jurisdictional, but rather constitutes a period of
limitations.” Bowen, 476 U.S. at 478
(citations omitted). Because the expiration of the statute of
limitations is an affirmative defense, Rule 12(b)(6) is the
best avenue for resolution. Rodriguez ex rel. J.J.T. v.
Astrue, 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011)
(“[A] motion to dismiss on statute of limitations
grounds . . . ‘generally is treated as a motion to
dismiss for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6)' ”) (quoting
Nghiem v. U.S. Dep't of Veterans Affairs, 451
F.Supp.2d 599, 603 (S.D.N.Y. 2006), aff'd, 323
Fed.Appx. 16 (2d Cir. 2009)).
the Commissioner properly filed a Motion to Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). When reviewing a
complaint under Federal Rule of Civil Procedure 12(b)(6), the
court takes all factual allegations in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“With respect to the statute of limitations defense,
dismissal at the 12(b)(6) stage is proper only ‘where
it is evident from the [petition/complaint] that the action
is barred and the [petition/complaint] fail[s] to raise some
basis for tolling.'” Jaso v. The Coca Cola
Co., 435 Fed.Appx. 346, 351 (5th Cir. 2011) (quoting
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.
sole issue presented to the court is whether Robison timely
filed her civil action appealing the denial of her social
security benefits at the administrative level. Robison had
sixty days from the date on which the Commissioner mailed the
notice of denial to file her appeal in federal
court. The date of receipt of notice of denial of
request for review of the presiding officer's decision or
notice of the decision by the Appeals Council shall be
presumed to be 5 days after the date of such notice, unless
there is a reasonable showing to the contrary. 20 C.F.R.
§ 422.210 (2018). Therefore, a plaintiff effectively has
sixty-five days after the date of the notice. The
Commissioner mailed its notice of unfavorable decision on
December 14, 2018, which makes February 17, 2019, her
deadline to file an appeal in federal court. Robison filed
her complaint on March 11, 2019. (Doc. No. 1.)
to timely file a civil action for judicial review constitutes
grounds for dismissal, and the Fifth Circuit has dismissed
social security appeals under similar circumstances.
Fletcher v. Apfel, 210 F.3d 510, 513 (5th Cir. 2000)
(suit filed one day late is properly dismissed);
Thibodeaux es rel. Thibodaux v. Bowen, 819 F.2d 76,
79 (5th Cir. 1987) (per curium) (complaint filed two days
late is time barred). However, the 60-day limitations period
can be subject to equitable tolling. Bowen, 476 U.S.
doctrine of equitable tolling permits courts to deem filings
timely where a litigant can show that ‘he has been
pursuing his rights diligently' and that ‘some
extraordinary circumstance stood in his way.'”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). To
determine whether an extension is warranted, the Commissioner
considers whether circumstances prevented a timely appeal,
whether agency actions misled the claimant, whether the
claimant misunderstood the appeal process because of
amendments, other legislation, or court decisions, or whether
physical, mental, educational, or linguistic limitations
caused the delay. 20 C.F.R. § 404.911(a).
courts may apply the doctrine of equitable tolling to extend
the statute of limitations where the claimant (i) was unaware
that there had been a violation giving rise to a claim, (ii)
rebutted the presumption that notice of the Appeals Council
denial was received within five days, (iii) received
conflicting information about the filing deadline, or (iv)
was unable to comprehend the appeal process because of an
impediment.” Cole-Hill ex rel. T.W. v. Colvin,
110 F.Supp.3d 480, 484-85 (W.D.N.Y. 2015) (quoting
Sindrewicz v. Chater, No. 96-CV-139, 1997 WL 166564,
at *2 (W.D.N.Y. Jan. 30, 1997).
complaining party has the burden of demonstrating facts that
justify equitable tolling. Wilson v. Secretary, Dep't
of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995).
Thus, it is Robison's burden to establish entitlement to
equitable tolling. To date, Robison has failed to comply with
the court's order instructing her to respond to the
Commissioner's Motion to Dismiss or explain why she
missed her deadline to file her social security appeal in
federal court. Therefore, there is nothing before the court
that would warrant application of the doctrine of equitable
tolling to excuse Robison's late filing.