noting 19 that the 60-day limit in § 405(g) “constitutes a statute of limitations”
How later courts described this case
- noting 19 that the 60-day limit in § 405(g) “constitutes a statute of limitations”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 FRANCISCO JAVIER GONZALEZ Case No. 1:23-cv-00886-CDB (SS)
12 Plaintiff, FIRST SCREENING ORDER DISMISSING
PLAINTIFF’S SOCIAL SECURITY
13 v. COMPLAINT WITH LEAVE TO FILE A
FIRST AMENDED COMPLAINT
14 COMMISSIONER OF SOCIAL SECURITY,
(Doc. 2)
15 Defendant.
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18 Plaintiff Francisco Javier Gonzalez (“Plaintiff”) seeks judicial review of an
19 administrative decision of the Commissioner of Social Security denying Plaintiff’s claim for
20 disability benefits under the Social Security Act. (Doc. 1). Pending before the Court is
21 Plaintiff’s application to proceed in forma pauperis. (Doc. 2). For the following reasons, the
22 Court finds the complaint as currently pleaded was untimely filed and will grant leave to file an
23 amended complaint.
24 I. Proceeding in forma pauperis
25 The Court may authorize the commencement of an action without prepayment of fees “by
26 a person who submits an affidavit that includes a statement of all assts such person…possesses
27 (and) that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a).
1 Here, the Court reviewed the financial status affidavit (Doc. 2) and finds the requirements of 28
2 U.S.C. § 1915(a) are satisfied.
3 II. Screening Requirement
4 When a party seeks to proceed in forma pauperis, the Court is required to review the
5 complaint and shall dismiss the complaint, or portion thereof, if it is “frivolous, malicious or
6 fails to state a claim upon which relief may be granted; or…seeks monetary relief from a
7 defendant who is immune from such relief.” 28 U.S.C. §§ 1915(b) & (e)(2). A plaintiff’s
8 claim is frivolous “when the facts alleged rise to the level of the irrational or the wholly
9 incredible, whether or not there are judicially noticeable facts available to contradict them.”
10 Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
11 III. Pleading Standards
12 A complaint must include a statement affirming the court’s jurisdiction, “a short and
13 plain statement of the claim showing the pleader is entitled to relief; and…a demand for the
14 relief sought, which may include relief in the alternative or different types of relief.” Fed. R.
15 Civ. P. 8(a). The purpose of the complaint is to give the defendant fair notice of the claims,
16 and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
17 512 (2002). As set forth by the Supreme Court, Rule 8:
18 … does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that
19 offers labels and conclusions or a formulaic recitation of the elements of a cause
of action will not do. Nor does a complaint suffice if it tenders naked assertions
20 devoid of further factual enhancement.
21 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted).
22 Vague and conclusory allegations do not support a cause of action. Ivey v. Board of Regents,
23 673 F.2 266, 268 (9th Cir. 1982). The Iqbal Court clarified further,
24 [A] complaint must contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
25 544, 570 (2009). A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
26 liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin
to a “probability requirement,” but it asks for more than a sheer possibility that a
27 defendant has acted unlawfully. Id. Where a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
1 Iqbal, 556 U.S. at 678. When factual allegations are well-pled, a court should assume their
2 truth and determine whether the facts would make the plaintiff entitled to relief; legal
3 conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to
4 amend a complaint to the extent deficiencies of the complaint can be cured by an amendment.
5 Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
6 IV. Discussion and Analysis
7 The Court may have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides:
8 Any individual after any final decision of the Commissioner made after a hearing
to which he was a party, irrespective of the amount in controversy, may obtain a
9 review of such decision by a civil action commenced within sixty days after the
mailing to him of such decision or within such further time as the Commissioner
10 may allow. Such action shall be brought in the district court of the United States
for the judicial district in which the plaintiff resides or has his principal place of
11 business…The court shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the
12 Commissioner of Social Security, with or without remanding the cause for a
rehearing.
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14 Id. Except as provided by statute, “[n]o findings of fact or decision of the Commissioner shall
15 be reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h).
16 Section 405(g) and (h) operate as statute of limitations setting the period in which a
17 claimant may appeal a final decision of the Commissioner. Bowen v. City of New York, 476
18 U.S. 467, 479 (1986). Accord Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (noting
19 that the 60-day limit in § 405(g) “constitutes a statute of limitations”). As the time limit set
20 forth in 42 U.S.C. § 405(g) is a condition on the waiver of sovereign immunity, it must be
21 strictly construed. Bowen, 476 U.S. at 479. “The limitations to final decisions and to a sixty-
22 day filing period serve to compress the time for judicial review and to limit judicial review to
23 the original decision denying benefits, thereby forestalling repetitive or belated litigation of
24 stale eligibility claims.” Anderson v. Astrue, No. 1:08-cv-00033-SMS, 2008 WL 4506606, *3
25 (E.D. Cal. Oct. 7, 2008) (citing Banta v. Sullivan, 925 F.2d 343, 345-46 (9th Cir. 1991)).
26 In this case, Plaintiff reports the Appeals Council issued a notice denying a request for
27 review of the decision on July 14, 2022. (Doc. 1 at 3). Plaintiff had sixty days from the date he
1 claims on May 19, 2023, past the applicable statute of limitations period, the Appeals Council
2 granted her an extension of time, for additional 30 days, plus five (5) days for delivery by mail,
3 to file a civil action. (Doc. 1 at 3). An extension of the sixty-day filing deadline may be
4 granted by the Commissioner where a request is made to the Appeals Council in writing and
5 with a showing that a claimant has good cause for missing the deadline. 20 C.F.R. § 404.982.
6 The Appeals Council’s grant of an extension fell outside of the applicable statute of
7 limitations period. Some district courts have found that it is appropriate to apply the doctrine
8 of equitable tolling for purposes of screening the complaint when a request for an extension of
9 time was made within the sixty-day time and the Appeals Council delayed action. E.g., Olvera
10 v. Colvin, No. 1:13-cv-00515-JLT, 2013 WL 2100567, *2 (E.D. Cal. May 14, 2013); Walsh v.
11 Colvin, No. 1:13-cv-00991-JLT, 2013 WL 3936905, *2 (E.D. Cal. July 30, 2013); Aschettino v.
12 Sullivan, 724 F. Supp. 1116, 1117-18 (W.D.N.Y. 1989). Others have found that a pending
13 request before the Appeals Council does not suffice to toll the sixty-day period. Small v.
14 Colvin, No. 1:14-cv-67-BAM, 2015 WL 237115, *3-4 (E.D. Cal. Jan. 16, 2015); Haseeb v.
15 Colvin, No. 3:15-cv-03931-LB, 2015 WL 9258086, *4-6 (N.D. Cal. Dec. 18, 2015), aff’d. sub
16 nom. Haseeb v. Berryhill, 691 Fed. Appx. 391 (9th Cir. 2017).
17 Here, Plaintiff’s Social Security Complaint does not specify the date an extension was
18 requested and what good cause, if any, Plaintiff had in delaying her filing of this civil action.
19 Thus, it is unclear if equitable tolling should be applied.
20 V. Conclusion and Order
21 For the reasons set forth above, Plaintiff’s Social Security Complaint fails to show it was
22 timely filed. Accordingly, Plaintiff shall be provided an opportunity to file an Amended Social
23 Security Complaint. Accordingly, it is HEREBY ORDERED that:
24 1. Plaintiff’s Social Security Complaint (Doc. 1) is DISMISSED WITHOUT
25 PREJUDICE as untimely; and
26 ///
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] 2. Plaintiff is GRANTED thirty days from the date of this order to file a First Amended
2 Complaint to cure the deficiencies set forth in this Order.
3 | IT IS SO ORDERED.
Dated: _ June 13, 2023 | hwwrD
5 UNITED STATES MAGISTRATE JUDGE
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