Tessier v. Saul, Case No. 2:19-cv-00401-DBP
| Decision Date | 18 November 2019 |
| Docket Number | Case No. 2:19-cv-00401-DBP |
| Parties | HEIDI M. TESSIER, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Utah |
The parties in this case consented to United States Magistrate Judge Dustin B. Pead conducting all proceedings, including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit. (ECF No. 13); see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Currently pending is Defendant Andrew Saul's ("Defendant" or "Commissioner"), Motion to Dismiss Plaintiff Heidi Tessier's ("Plaintiff" or "Ms. Tessier") federal action. (ECF No. 11.)
On October 30, 2019, the Court requested additional information on discrete issues raised in the parties' briefing. (ECF No. 16.) As requested, that briefing was submitted and upon review the court now rules as follows. (ECF No. 17, ECF No. 18.)
On January 12, 2018, United States District Court Judge Dale Kimball remanded Ms. Tessier's case, seeking disability insurance benefits under Title II of the Social Security Act, to the Commissioner for further administrative proceedings. See Civil Action Number, 2:17-cv- 00143; (ECF No. 11-1, Declaration of Janay Podraza; Exhibit 1 "Notice Of Order Of Appeals Council Remanding Case To Administrative Law Judge"). On remand, Administrative Law Judge ("ALJ") Gilbert A. Martinez issued a decision on December 3, 2018, denying Ms. Tessier's claim for benefits. (ECF No. 11-1, Exhibit 2.)
On June 11, 2019, Ms. Tessier filed a federal civil action seeking review of the ALJ's decision. (ECF No. 1); see 42 U.S.C. § 405(g). On September 10, 2019, Defendant moved to dismiss Plaintiff's action for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6).1(ECF No. 11.)
Plaintiff's Complaint Is Untimely and Therefore It Must Be Dismissed.
In order to pursue a timely appeal of the ALJ's December 3, 2018 decision, Ms. Tessier had two options, either: (1) file timely exceptions with the agency's Appeals Council within thirty (30) days from the date of notice of the ALJ's decision; or (2) commence a timely civil action, within one hundred twenty-one (121) days from the date of notice of the ALJ's decision. See 20 C.F.R. § 404.984(b); 20 C.F.R.§ 404.984(d). Ms. Tessier did neither and as a result her action is untimely and subject to dismissal.
Under the first option, Ms. Tessier was entitled to file exceptions with the Appeals Council within thirty (30) days from the date of notice of the ALJ's decision. See 20 C.F.R. § 404.984(b).
As part of the December 3, 2018 Notice of an Unfavorable Decision, the ALJ advised Ms. Tessier that if she disagreed she could submit written exceptions to the Appeals Council, or a request additional time to do so, within "30 days of the date you get this notice." (ECF No. 11-1, Exhibit 2 "Notice of Decision-Unfavorable".) The notice further explained that the date of receipt is presumed to be "5 days after the date of the notice unless you show that you did not get it within the 5-day period." Id., see also 20 C.F.R. § 404.981, 20 C.F.R. § 404.982. As a result, Ms. Tessier's exceptions, or her request for additional time to file exceptions, were due by January 7, 2019—thirty (30) days from the date of notice plus five (5) days for mailing. Plaintiff exceptions, however, were not received by the Appeals Council until February 2, 2019. (ECF No. 11-1, Exhibit 1 Declaration of Janay Podraza, ¶(4)(b); Exhibit 3 "Request For Review Of Hearing Decision/Order".)
In a letter dated March 25, 2019, the Appeals Council informed Ms. Tessier that her exceptions were untimely, but granted her an additional twenty (20) days to submit proof of timeliness. (ECF No. 11-1, Exhibit 1 Declaration of Janay Podraza, ¶(4)(b); Exhibit 4.) On April 8, 2019, Ms. Tessier filed her response seeking a "good cause" waiver of the applicable time limits. (ECF No. 11-1, Exhibit 5.) In doing so, Plaintiff did not submit proof of timeliness, but sought an exception based on her inability to remember tasks and instructions. Id.
On May 24, 2019, Administrative Appeals Judge David E. Clark rejected Plaintiff's request for waiver and affirmed the ALJ's decision as the final decision of the Commissioner. Specifically, Judge Clark concluded:
(ECF No. 11-1, Exhibit 6 "Letter to Ms. Tessier".)
In sum, Ms. Tessier did not file exceptions within thirty (30) days from the date of notice of the ALJ's December 2018 decision, and therefore she did not comply with the requirements of her first appeal option.
Under the second option, once the ALJ's decision became final Ms. Tessier was entitled to file a timely action in federal court. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.984(d).
In the December 3, 2018 Notice of an Unfavorable Decision, the ALJ advised Ms. Tessier that if she disagreed with the decision, she could file a civil action in federal district court within sixty (60) days after the decision became final. (ECF No. 11-1, Exhibit 2 "Notice of Decision—Unfavorable".) The notice further explained that if the Appeals Council did not assume jurisdiction on its own and if no written exceptions were filed, the ALJ's decision would"become final on the 61st day following the date of this notice." Id. As a result, Ms. Tessier was required to file her federal action no later than April 3, 2019—one hundred twenty-one (121) days from the date of notice. (ECF No. 11-1, Exhibit 2 "Notice of Decision—Unfavorable"); see 42 U.S.C. § 205(g); 20 C.F.R. § 404.984(d). Plaintiff, however, did not file her federal civil action until June 11, 2019, sixty-nine (69) days after she was required to do so. (ECF No. 1.)
Lawsuits not commenced within the sixty-day period are properly subject to a motion to dismiss and federal courts strictly apply applicable time limitations. See e.g., Dozier v. Bowen, 891 F.2d 769, 770 (10th Cir. 1989); Leslie v. Bowen, 695 F. Supp. 504, 507 (D. Kan.1988) (); Leetch v. Sullivan, No. C90-1027J, 1991 WL 259261, at *2 (D. Wyo. Aug. 1, 1991) (unpublished) (); Lindsey v. Chater, No. 95-4203-SAC, 1996 WL 509635, at *1-2 (D. Kan. Aug. 30, 1996) (unpublished) (); Cleland v. Colvin, No. 2:12-cv-00684-DBP, 2013 WL 4854457, at *2 (D. Utah Sept. 11, 2013) (unpublished) (); Butler v. Colvin, No. 14-cv-0449-HE, 2014 WL 2896000, at *1-2 (W.D. Okla. June 26, 2014) (unpublished) (). While the result may be harsh, federal courts have even dismissed complaints "that have missed the filing deadline by as little as one day." Chiaradonna v. Schweiker, 569 F. Supp. 1471, 1474 (E.D. Pa. 1983) ().
Here, because Ms. Tessier did not file her federal civil action within sixty (60) days after the ALJ's decision became final, she did not comply with the requirements of her second appeal option.
There Is No Equitable Basis For Tolling.
The sixty (60) day period to file a civil action, as specified in section 205(g) of the Social Security Act, is a period of limitation which, in appropriate circumstances, may be equitably tolled by the Commissioner or the Court. See Bowen v. City of New York, 476 U.S. 467 (1986). A litigant may be entitled to equitable tolling "only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The second prong of the equitable tolling test is met "only where the circumstances that caused a litigant's delay are both extraordinary and beyond its control." Menominee Indian Tribe. v. United States, 136 S. Ct. 750, 756 (2016).
Ms. Tessier argues she is entitled to equitable tolling because she pursued her rights diligently despite suffering from severe psychological and neurocognitive impairments. While sympathetic to Ms. Tessier's challenges, the court concludes that Plaintiff does not present any extraordinary circumstances beyond her control that would trigger equitable tolling. Indeed, throughout this process Plaintiff has been represented by counsel who acknowledged the untimely exceptions and sought to establish "good cause" for the late filing. (ECF No. 11-1, Exhibit 5.) Further, even without knowing the outcome of her request with the Appeals Council, Ms. Tessier could have filed a timely complaint in federal court. Plaintiff does not address her failure to do so and equitable tolling does not apply.
The Appeals Council Letter Is Not A Final Decision.
Finally, relying upon Smith v. Berryhill, Ms. Tessier argues that the "Appeals Council Dismissal dated May 24, 2019, is the 'final decision' of the Social Security Administration" and consequently Plaintiff's June 11, 2019 federal action, filed eighteen (18) days later, was timely.139 S. Ct. 1765 (2019). Plaintiff's assertions, however, are incorrect as Smith is both...
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