United States District Court, W.D. North Carolina, Statesville Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Defendant's
Motion to Dismiss (Doc. No. 5) for lack of subject matter
jurisdiction. Plaintiff filed its Response (Doc. No. 6), and
the matter is fully briefed. Having carefully considered such
motion and memoranda, the Court enters the following
findings, conclusions, and Order.
February 11, 2015, Plaintiff filed a Title XVI application
for supplemental security income and a Title II application
for a period of disability and disability insurance benefits.
(Doc. No. 5-2, at 8). Plaintiff's Title XVI application
was granted. (Doc. No. 5-2, at 8). Plaintiff's Title II
application was initially denied on June 18, 2015 and then
denied upon reconsideration on November 3, 2015. (Doc. No.
5-2, at 8). Plaintiff then filed a written request for a
hearing on March 17, 2016. (Doc. No. 5-2, at 8). The hearing
was held on June 28, 2017 (Doc. No. 5-2, at 8), and
Plaintiff's application was denied by the Administrative
Law Judge on September 11, 2017. (Doc. No. 5-2, at 20).
Plaintiff requested review of that decision by the Appeals
Council, and the Appeals Council denied his request as
memorialized in a Notice of Appeals Council Action dated
March 15, 2018. (Doc. No. 5-2, at 24). The Appeals Council
also informed him that he had “60 days to file a civil
action” and that the 60-day count would start 5 days
after the date on the Notice of Appeals Council Action. (Doc.
No. 5-2, at 22). On March 29, 2018, Plaintiff sent additional
information for consideration to the Appeals Council (Doc.
No. 6-1). On March 15, 2018, the Appeals Council declined to
reopen and change its decision. (Doc. No. 5-2, at 25).
Standard of Review
party moves for dismissal under Fed.R.Civ.P. 12(b)(1)
challenging the Court's subject matter jurisdiction, the
burden is on the plaintiff to show that federal jurisdiction
is proper. McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982). Further, where a party challenges
a court's “‘very power to hear the case,
'” a court is free to weigh evidence to determine
the existence of jurisdiction, and no presumptive
truthfulness attaches to a plaintiff's allegations.
Int'l Longshoremen's Ass'n v. Virginia
Int'l Terminals, 914 F.Supp. 1335, 1338 (quoting
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)).
argues that (1) Plaintiff's Complaint should be dismissed
because he did not comply with the requirement that he file
his claim within 60 days of receiving the final decision of
the commissioner and (2) there are no circumstances
justifying equitable tolling of that 60-day requirement.
(Doc. No. 5-1, at 2-5).
Timeliness of Plaintiff's Claim
first argues that Plaintiff's Complaint was untimely and
that, consequently, the Court lacks subject matter
jurisdiction over the Complaint. (Doc. No. 5-1, at 2). It is
well settled that "[t]he United States, as sovereign,
‘is immune from suit save as it consents to be sued, .
. . and the terms of its consent to be sued in any court
define that court's jurisdiction to entertain the
suit.'” Lehman v. Nakshian, 453 U.S. 156,
160 (1981) (quoting United States v. Testan, 424
U.S. 392, 399 (1976)). Judicial review of claims arising
under Title II of the Social Security Act is governed by 42
U.S.C. § 205(g). Section 205(g) explains that
individuals may obtain review of such claims only if the
civil action is “commenced within sixty days after the
mailing to him of notice of such decision.”
“Mailing” has been interpreted to be the day that
the individual receives the Appeals Council's notice of
denial of request for review, and the date of receipt is
“presumed to be five days after the date of such
notice.” 20 C.F.R. § 422.210(c).
Notice of Appeals Council Action (denying his request for
review) was dated March 15, 2018. (Doc. No. 5-2, at 24).
After accounting for the presumptive 5-day window for
receipt, Plaintiff was required to file his claim by May 19,
2018. See 20 C.F.R. § 422.210(c). Because
Plaintiff filed his claim June 6, 2018, it was untimely.
See 42 U.S.C. § 205(g). Plaintiff seeks to
circumvent his untimely filing by arguing that “the
case was under consideration at the Appeals Council until
April 9, 2018.” (Doc. No. 6, at 3). Plaintiff appears
to be referring to his request that the Appeals Council
reopen its determination to review the Administrative Law
Judge's decision, which was denied April 9, 2018. (Doc.
No. 5-2, at 25). However, Plaintiff has cited no authority
indicating that by asking the Appeals Council to reopen his
appeal, he can reset the 60-day clock (which, per 42 U.S.C.
§ 205(g), explicitly begins upon receipt of the Appeals
Council's denial). The Court declines to accept
Plaintiff's invitation to modify the plain language of 20
C.F.R. § 422.210(c). Instead, the Court finds that
Plaintiff's claim was untimely.
further argues that the Court should not toll the 60-day
requirement. (Doc. No. 5-1, at 5). In Califano v.
Sanders, 430 U.S. 99, 108 (1977), the Supreme Court
stated that "the congressional purpose, plainly
evidenced in section 205(g), [was to] impose a 60-day
limitation upon judicial review of the Commissioner's
final decision . . . .” While the 60-day period
specified in section 205(g) of the Act can be tolled by
courts, courts should extend the period only “where the
equities in favor of tolling the limitations period are so
great that deference to the agency's judgment is
inappropriate.” Bowen v. City of New York, 476
U.S. 467, 479, 480 (1986) (citation omitted). For example, in
Bowen, the Supreme Court determined that tolling was
appropriate because secretive conduct, by the government,
prevented the plaintiffs from knowing that a violation of
their rights had occurred. Id. at 481. This is not
such a case, and Plaintiff cites no authority showing that
the Appeals Council's decision not to reopen the case
justifies equitable tolling of the 60-day period.