United States District Court, W.D. Washington
ORDER DENYING DEFENDANT'S MOTION TO
P. DONOHUE Chief United States Magistrate Judge
matter comes before the Court on the Commissioner of Social
Security's motion to dismiss. Dkt. 10. Specifically, the
Commissioner asserts that plaintiff, who is proceeding in
forma pauperis (“IFP”), failed to timely
initiate this action challenging the denial of
plaintiff's claim for disability benefits under Titles II
and XVI of the Social Security Act (“SSA”).
Id. at 2; Dkt. 10-2 at ¶ 1 (Chung Decl.).
Plaintiff contends that due to delayed receipt of the Notice
of Appeals Council Action (“the Notice”), the
applicable mailing presumption does not apply, and the
Commissioner's motion to dismiss should be denied because
plaintiff's case has been timely filed within the statute
of limitations. Dkt. 12. After careful consideration of the
Commissioner's motion to dismiss, plaintiff's
response, the parties' declarations, the governing law,
and the balance of the record, the Court DENIES the
Commissioner's motion to dismiss, Dkt. 10, and finds that
plaintiff's action may proceed as filed.
October 2013, plaintiff filed applications for disability
insurance benefits and supplemental security income with the
Social Security Administration. Dkt. 10-2 at 8 (Chung Decl.).
Plaintiff's claims were denied initially and upon
reconsideration, so plaintiff requested a hearing before an
administrative law judge (“ALJ”). Id.
She appeared and testified at a hearing held in April 2015,
and submitted supplemental evidence after the hearing, which
was admitted and considered upon review. Id. On July
31, 2015, an ALJ issued a final decision denying
plaintiff's claims for benefits. Id. at 5.
Thereafter, plaintiff sought to review the ALJ's
unfavorable final decision. Id. at 20. The Appeals
Council found no applicable reason under its rules to
reexamine the ALJ's final decision and denied
plaintiff's request, issuing the Notice dated January 27,
2017. Id. at 20-21; Dkt. 7 at ¶ 9.
maintains that she “never received the Notice of the
Appeals Council decision, ” which denied her benefits
and outlined the requirements of seeking review in federal
court. Dkt. 7 at ¶ 9; Dkt. 13 at ¶ 5 (Jacobson
Decl.). However, although plaintiff did not personally
receive a copy, her administrative attorney, Vickie Brewer,
received the Notice on February 4, 2017. Dkt. 7 at
¶¶ 9-10; Dkt. 7-1 at ¶ 2 (Brewer Decl.)
(“I received the Notice of the Appeals Council decision
on February 4, 2017.”). At that time, Ms. Brewer
contacted Christopher Dellert, plaintiff's counsel in the
instant action, about pursuing an appeal in federal court.
Dkt. 7-1 at ¶ 3 (Brewer Decl.); Dkt. 7-2 at ¶ 2
(Dellert Decl.) (“Vickie Brewer… contacted me
about the Appeals Council denial via email on February 4,
2017.”).Mr. Dellert received plaintiff's signed fee
agreement and IFP application on March 31, 2017 and filed
plaintiff's complaint on April 4, 2017, without having
ever obtained a copy of the Notice from Ms. Brewer,
plaintiff, or the Appeals Council. Dkt. 7-2 at ¶¶
5, 6, 9 (Dellert Decl.). A copy of the Notice was finally
sent to Mr. Dellert on April 10, 2017, at which point he
“determined that the 65-day limit to file (60 days,
plus five for mailing) [presumed from the date on the Notice]
had expired.” Id. at ¶ 10. To verify the
statute of limitations deadline, he “contacted Ms.
Brewer and determined that she had not received the notice
until February 4, 2017.” Id. at ¶ 11.
Plaintiff filed an amended complaint on April 12, 2017,
supported by declarations from both attorneys explaining
plaintiff's failure to receive the Notice and Ms.
Brewer's delayed receipt of the Notice beyond the typical
five-day presumption. Dkt. 7; Dkt. 7-1 (Brewer Decl.); Dkt.
7-2 (Dellert Decl.).
Commissioner moves to dismiss plaintiff's amended
complaint, arguing that “Plaintiff failed to bring this
action within 60 days of receiving notice of the
Commissioner's final decision. . .” Dkt. 10 at 1.
Consistent with applicable regulations, plaintiff is presumed
to have received the Notice five days after the January 27,
2017 date of issuance (printed on the Notice), on February 1,
2017. Id. at 3. The Commissioner asserts that when
the sixty-day statute of limitations is calculated from the
February 1, 2017 presumed date of receipt, plaintiff had
until April 2, 2017 to timely file her civil complaint.
Id. The Commissioner further acknowledges that
because this deadline fell on a Sunday, under court rules,
plaintiff had until the following Monday, April 3, 2017 to
timely file. Id. Because plaintiff did not initiate this
civil suit until April 4, 2017, one day too late, defendant
argues the complaint is untimely. Dkt. 1.
Commissioner's motion to dismiss is supported by the
declaration of Nancy Chung, Chief of Court Case Preparation
and Review Branch 1 of the Office of Appellate Operations at
the Office of Disability Adjudication and Review
(“ODAR”), the individual responsible for
processing SSI and DIB claims whenever a civil action has
been filed in Washington. See Dkt. 10-2 at ¶ 3 (Chung
Decl.). In her declaration, Ms. Chung provides that “on
July 31, 2015, an Administrative Law Judge issued a decision
denying the plaintiff's claim for benefits under Titles
II and XVI, and mailed a copy thereof to the plaintiff
(Exhibit 1 [to Ms. Chung's Declaration]). Thereafter, the
plaintiff requested review of this decision.” Dkt. 10-2
at ¶ 3(a) (Chung Decl.). Ms. Chung states that in
response to plaintiff's request for review, “on
January 27, 2017, the Appeals Council sent, by mail addressed
to the plaintiff at [her home address], with a copy to his
[sic] representative, notice of its action on the
claimant's request for review and of the right to
commence a civil action within sixty (60) days from the date
of receipt (Exhibit 2).” Id.
Notice instructs the claimant: “[y]ou have 60 days to
file a civil action (ask for court review) . . . The 60 days
start the day after you receive this letter. We assume you
received this letter 5 days after the date on it unless you
show us that you did not receive it within the 5-day
period.” Id. at 22 (emphasis added). The
Notice also indicates that an extension of time to initiate
civil action may be requested if the claimant has “a
good reason for waiting more than 60 days to ask for court
review.” Id. Neither party claims that
plaintiff or her attorneys sought an extension of time.
See Dkt. 10-2 at ¶ 3(b) (Chung Decl.).
argues that even after defendant filed the instant motion to
dismiss, she had not yet received a copy of the Notice. Dkt.
12 at 2; Dkt. 13 at ¶ 5 (Jacobson Decl.). As a result,
she must rely on the sworn declarations of her counsel, both
of whom maintain that the Notice was first received by
plaintiff's administrative attorney, Ms. Brewer, on
February 4, 2017, three days later than the date of receipt
presumed by the Commissioner. Dkt. 7-1 at ¶ 2
Decl.); Dkt. 7-2 at ¶ 2 (Dellert Decl.). Plaintiff
contends that these declarations are sufficient to overcome
the mailing presumption which establishes a date of receipt
for purposes of appeal. Dkt. 12 at 2.
Civil Actions Challenging the Final Decision of the
Commissioner are Subject to a Sixty-Day Statute of
Limitations Pursuant to 42 U.S.C. § 405(g)
Social Security claimant may obtain review of a final
decision of the Commissioner by commencing a civil action in
the district court “within sixty days after the mailing
to him of notice of such decision or within such further time
as the Commissioner of Social Security may allow.” 42
U.S.C. § 405(g). In relevant part, 42 U.S.C. §
405(h) provides that “[n]o findings of facts or
decision of the Commissioner of Social Security shall be
reviewed by any person, tribunal, or governmental agency
except as herein provided.” Sections 405(g) and (h) act
as a statute of limitations establishing the sixty-day time
period in which a claimant may appeal a final decision of the
Commissioner. Vernon v. Heckler, 811 F.2d 1274, 1277
(9th Cir. 1987). Thus, the sixty-day period is not
jurisdictional; the only jurisdictional requirement of
Section 405(g) is that there be a final decision of the
Commissioner after the claim for benefits has been presented
to the Administration. See id.; see also Mathews
v. Eldridge, 424 U.S. 319, 328 n.9 (1976). As a statute
of limitations, and because the SSA was designed to be