United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
MATTER is before the Court on the Plaintiff's Motion for
Summary Judgment [Doc. 10] and the Defendant's Motion for
Summary Judgment [Doc. 11].
Plaintiff Lisa Harkey filed an application for supplemental
security income (“SSI”) benefits on July 26,
2012, alleging an onset date of March 4, 2011. [See
Transcript (“T.”) 12, 179-87]. The
Plaintiff's claim was denied initially and on
reconsideration. [T. 77-93, 95-111]. At the request of the
Plaintiff, an administrative law judge (“ALJ”)
held a hearing to review the Plaintiff's claim on August
13, 2014. [T. 28-76]. On November 10, 2014, the ALJ issued a
decision denying the Plaintiff benefits under the Act. [T.
12- 23]. On April 7, 2016, the Appeals Council denied the
Plaintiff's request for review, thereby making the
ALJ's decision the final decision of the Commissioner.
1, 2016, the Plaintiff, through counsel, filed a complaint
for judicial review of the Commissioner's final decision
in this Court. [Harkey v. Colvin, No.
3:16-cv-00277-FDW (“Harkey I”), Doc. 1]. On June
8, 2016, the Honorable Frank D. Whitney, Chief United States
District Judge, granted the Plaintiff's motion to proceed
in forma pauperis. [Harkey I, Doc. 4]. The Plaintiff,
however, did not provide a summons to the Clerk's office
within 90 days of filing of the Complaint, did not request an
extension of time to do so, and did not otherwise take any
measures to effect service of her Complaint. [Harkey I, Doc.
5]. As a result, on October 6, 2016, Judge Whitney sua sponte
dismissed the Plaintiff's Complaint without prejudice.
[Harkey I, Docs. 5, 6].
Plaintiff refiled her action on October 11, 2016, and this
case was assigned to the undersigned. [Harkey v.
Colvin, No. 3:16-cv-00709-MR (“Harkey II”),
Doc. 1]. On December 2, 2016, the Plaintiff filed proof of
service on the Defendant. [Harkey II, Docs. 3-5]. The
Defendant filed an Answer to the Plaintiff's Complaint on
December 22, 2016 [Harkey II, Doc. 7], and a scheduling order
issued thereafter. The Plaintiff filed her motion for summary
judgment on March 13, 2017 [Harkey II, Doc. 10], and the
Defendant filed her motion for summary judgment on May 8,
2017 [Harkey II, Doc. 11].
claimant seeking judicial review of the Commissioner's
final decision denying SSI benefits must file a civil action
within 60 days of receiving notice of such decision “or
within such further time as the Commissioner of Social
Security may allow.” See 42 U.S.C. §§ 405(g),
1383(c)(3); 20 C.F.R. § 422.210(c). Absent “a
reasonable showing to the contrary, ” it is presumed
that such notice is received five (5) days after the date of
such notice. 20 C.F.R. §§ 416.1401; 422.210(c).
60-day filing requirement, however, is a period of limitation
rather than a jurisdictional limit. As such, it may be
subject to equitable tolling under the appropriate
circumstances. See Hyatt v. Heckler, 807 F.2d 376,
378 (4th Cir. 1986). Equitable tolling applies only where
“‘extraordinary circumstances beyond
plaintiffs' control [make] it impossible to file the
claims on time.'” Chao v. Virginia Dep't of
Transp., 291 F.3d 276, 283 (4th Cir. 2002) (quoting
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000)); see also Rouse v. Lee, 339 F.3d 238, 246
(4th Cir. 2003) (allowing equitable tolling only in
“extraordinary” cases where circumstances beyond
a claimant's control cause her to miss a deadline).
Equitable tolling should not be employed to aid claimants who
“failed to exercise due diligence in preserving [their]
legal rights.” Chao, 291 F.3d at 283. Further, as this
Court recently explained, the Supreme Court has held that
traditional equitable principles “do not extend to what
is at best a garden variety claim of excusable
neglect.” Peeler v. Colvin, No.
3:16-CV-545-MOC-DLH, 2017 WL 64747, at *2 (W.D. N.C. Jan. 5,
2017) (quoting Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 96 (1990)).
the Plaintiff's first civil action was filed within the
60-day period. That case, however, was dismissed without
prejudice due to the Plaintiff's failure to prosecute the
action. The Plaintiff did not appeal that dismissal, and she
did not seek an extension of time to re-file her action.
Instead, the Plaintiff commenced the present action on
October 11, 2016, more than 180 days after the final decision
of the Commissioner. The Plaintiff's present action is
subject to dismissal as being untimely unless the principles
of equitable tolling can be applied.
Plaintiff has not responded to the Commissioner's
arguments of untimeliness and thus has made no attempt to
demonstrate any extraordinary facts which would warrant the
application of equitable tolling in this case. Upon review of
the case, the Court does not find that equitable tolling is
applicable. The Plaintiffs first action, while timely, was
dismissed for failure to prosecute. The fact that the
Plaintiffs first, timely action was dismissed without
prejudice does not warrant the application of equitable
tolling. Christides v. Comm'r of Soc. Sec, 478
Fed.Appx. 581, 584 (11th Cir. 2012) (declining to apply
equitable tolling, noting that “the mere fact that her
complaint was dismissed without prejudice does not permit her
to file a later complaint outside the statute of
limitations.”). As the Plaintiff has failed to
demonstrate any extraordinary circumstances to excuse her
late filing, the Court concludes that equitable tolling is
not available to her.
of these reasons, the Court concludes that the Plaintiffs
complaint was not timely filed and therefore should be
IT IS, THEREFORE, ORDERED that the
Plaintiffs Motion for Summary Judgment [Doc. 10] is
DENIED; the Defendant's Motion for
Summary Judgment [Doc. ...