United States District Court, W.D. Washington, Tacoma
DONALD R. BUTLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER GRANTING MOTION TO DISMISS
W. Christel United States Magistrate Judge
appeals from the final decision of the Administrative Law
Judge (“ALJ”) denying his applications for Social
Security Disability Insurance benefits. Defendant filed a
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (“Motion”) based upon
Plaintiff's failure to file a timely appeal of the
ALJ's final decision. Dkt. 10. Plaintiff did not file an
opposition to the Motion. See generally Dkt.
Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil
Procedure 73, and Local Rule MJR 13, the parties have
consented to have this matter heard by the undersigned
Magistrate Judge. See Dkt. 8.
Complaint was not filed within the sixty-day limitations
period articulated in 42 U.S.C. § 405(g), and Plaintiff
has not demonstrated extraordinary circumstances warranting
equitable tolling. Thus, the Court grants Defendant's
Motion and dismisses this case with prejudice.
AND PROCEDURAL HISTORY
February 6, 2016, an ALJ issued an unfavorable decision
denying Plaintiff's claim for benefits under Titles II
and XVI of the Social Security Act (Act). Dkt. 10-1, Exhibit
1, Declaration of Nancy Chung ¶ (3)(a). Plaintiff
requested review of the decision by the Appeals Council.
Id. On June 1, 2017, the Appeals Council mailed a
notice to Plaintiff, with a copy to Plaintiff's attorney,
denying his request for review of the ALJ's decision,
thus making the ALJ's decision the Commissioner's
final decision. Dkt. 10-1, Exhibit 2 at 1-3. The notice from
the Appeals Council informed Plaintiff if he wished to
commence a civil action, he must do so within sixty days of
the letter's receipt, which was assumed to be five days
after the date of the denial of the request for review. Dkt.
10-1, Exhibit 2 at 3-4. The notice also informed Plaintiff he
could request more time to file for judicial review. Dkt.
10-2 at 4.
August 11, 2017, Plaintiff filed a Motion for Leave to
Proceed In Forma Pauperis (“Motion for
IFP”), which the Court granted, along with his
Complaint. Dkts. 1, 3. The Court now considers
Defendant's Rule 12(b)(6) Motion. Dkt. 10.
STANDARD AND CONSIDERATION OF EVIDENCE
to Federal Rule of Civil Procedure 12(b)(6), a party may move
to dismiss a complaint on the grounds it “fails to
state a claim upon which relief can be granted.” To
state a claim for which relief may be granted, a complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
attached the following exhibits to support the Motion:
Declaration of Nancy Chung,  Exhibit 1: ALJ Decision; Exhibit
2: Appeals Council Denial of Review (“Exhibits”).
See Dkt. 10-1. In ruling on a motion to dismiss,
“a court may generally consider only allegations
contained in the pleadings, exhibits attached to the
complaint, and matters properly subject to judicial
notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763
(9th Cir. 2007). If, on a motion to dismiss under Rule 12,
matters outside the pleading are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given
reasonable opportunity to present all the material that is
pertinent to the motion.
Fed. R. Civ. P. 12(d).
the Court may consider documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint. See
Lee v. City of Los Angeles, 250 F.3d 668,
688 (9th Cir. 2001). The Ninth Circuit has “extended
the ‘incorporation by reference' doctrine to
situations in which the plaintiff's claim depends on the
contents of a document, the defendant attaches the document
to its motion to dismiss, and the parties do not dispute the
authenticity of the document, even though the plaintiff does
not explicitly allege the contents of that document in the
complaint.” Knievel v. ESPN, 393 F.3d 1068,
1076 (9th Cir. 2005); see Marder v. Lopez, 450 F.3d
445, 448 (9th Cir. 2006); Wheat v. Comm'r of Soc.
Sec., 2017 WL 469311, at *3 (E.D. Cal. Feb. 3, 2017)
(granting motion to dismiss for failure to file complaint
within the sixty-day statute of limitations based on
documents attached to defendant's motion to dismiss
pursuant to Rule 12(b)(6)). Here, the Exhibits are ones upon
which Plaintiff's Complaint depends, thus, the Court will
consider them as incorporated by reference.
Defendant contends dismissal is required because Plaintiff
failed to file his Complaint within the sixty-day statute of
limitations provided by 42 U.S.C. § 405(g). Although the
statute-of-limitations defense is usually raised in an answer
to a complaint, “it may be raised in a motion to
dismiss when the running of the statute is apparent from the
face of the complaint.” See Vernon v. Heckler,
811 F.2d 1274, 1278 (9th Cir. 1987) (citing Conerly v.
Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir.
1980)). “Such a motion to dismiss should be granted
only if the assertions of ...