United States District Court, E.D. North Carolina, Western Division
John R. Carter, Plaintiff,
Andrew Saul, Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
John Carter instituted this action in March 2019 to challenge
the denial of his application for social security income.
Carter claims that Administrative Law Judge
(“ALJ”) Gary Brockington erred in failing to
consider a disability rating by the Veterans Administration
(“VA”), as this court directed. See Carter v.
Berryhill, No. 5:16-CV-00762-FL, D.E. 22.
Andrew Saul, Commissioner of Social Security, has moved to
dismiss Carter's complaint asserting that it is untimely.
D.E. 15. The undersigned conducted a telephonic hearing in
September 2019. After reviewing the parties' arguments,
the undersigned recommends that the court deny Saul's
motion to dismiss without prejudice.
first sought disability benefits in 2009. After his claim was
denied at the initial level and upon reconsideration, Carter
appeared at a hearing before an ALJ to determine whether he
was entitled to benefits. The ALJ determined that Carter had
no right to benefits because he was not disabled. Tr. at
filed an unsuccessful appeal to the Appeals Council and then
filed a complaint in this court, which remanded the action by
Order dated January 21, 2014. See Carter v. Colvin,
No. 5:12-CV-736-FL (E.D. N.C. 2014), D.E. 28.
remand, Carter appeared for a second hearing before an ALJ,
who again determined Carter had no right to benefits because
he was not disabled. Carter filed an unsuccessful request for
review to the Appeals Council before filing a complaint in
this court in August 2016. See Carter v. Berryhill,
No. 5:16-CV-762-FL. This court remanded the action again
finding that the ALJ had failed to explain sufficiently why a
disability finding by the Veterans Administration
(“VA”) received little to no weight. See
Id. at D.E. 22. The court also directed the ALJ to
consider Carter's more-recent 2016 VA disability
remand, a different ALJ held a third hearing on Carter's
claim. In August 2018, the ALJ determined that Carter had no
right to benefits because he was not disabled.
then commenced this action in March 2018. D.E.
Saul moved to dismiss Carter's action because the court
lacked subject-matter jurisdiction over it. D.E. 15. Saul
submitted an affidavit in support of his motion explaining,
among other things, that the ALJ issued an unfavorable
opinion in August 2018, that the SSA notified Carter and his
attorney of the decision and the 60-day period to file a
civil action, and that Carter has not requested an extension
of time to file a civil action. This information, Saul
claims, establishes that Carter's action, filed about six
months after the ALJ's opinion, is untimely.
claims that his action is not untimely. He argues that he
filed not one, but two appeals with the Appeals Counsel
seeking review of the ALJ's decision. According to
Carter, the Appeals Counsel appears to have lost his first
notice of appeal. And based on information he claims to have
received from the SSA, the second appeal is still pending
before the agency.
brings his motion under “Rule 12(b)(1) of the Federal
Rules of Criminal Procedure” and “requests that
the Plaintiff's complaint be dismissed for lack of
subject-matter jurisdiction as it is untimely.” Mot. to
Dismiss at 1, D.E. 15. He then explains that Carter's
complaint is untimely because “it was not filed within
sixty days after the presumptive receipt of notice by
Plaintiff of the Commissioner's final decision or within
further time allowed by the Commissioner through the Appeals
Council.” Mem. in Supp. at 4, D.E. 16.
problem with Saul's argument is that the Supreme Court
has held “that the 60-day requirement is not
jurisdictional, but rather constitutes a period of
limitations.” Bowen v. City of New York, 476
U.S. 467, 478 (1986). The Supreme Court reiterate this point
in a case presenting similar factual circumstances less than
six months ago. Smith v. Berryhill, 13 S.Ct. 1765,
1773- 74 (2019). Thus, even if Saul is correct that Carter
missed the 60-day filing period, it would not deprive this
court of subject-matter jurisdiction to address his claim. As
a result, the undersigned recommends that the district court
deny the motion without prejudice.