Brown v. Social Security Administration

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ADRIENNE ELEANOR BROWN CIVIL ACTION

VERSUS NO. 19-10822

SOCIAL SECURITY ADMINISTRATION SECTION AG@(3)

ORDER AND REASONS

In this litigation Plaintiff Adrienne Eleanor Brown (“Plaintiff”) seeks review pursuant to

42. U.S.C. § 405(g) of a final decision of Defendant Andrew Saul, Commissioner of the Social

Security Administration (“Defendant”) denying Plaintiff’s claim for disability insurance benefits

(“DIB”) supplemental security income (“SSI”) under the Social Security Act (the “Act”).1

Currently pending before the Court is Defendant’s “Motion to Dismiss the Plaintiff’s Complaint

as Untimely,” seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction.2 This matter was referred to the United States Magistrate Judge

pursuant to Local Rule 73.1 to prepare a Report and Recommendation. The Magistrate Judge

recommended that this Court grant the motion and dismiss the Complaint for lack of subject matter

jurisdiction.3 Neither party filed objections to the Report and Recommendation. Having considered

the Complaint, the motion to dismiss, the record, and the applicable law, the Court will adopt the

Report and Recommendation in part and dismiss this action pursuant to Federal Rule of Civil

Procedure 12(b)(6).

1 Rec. Doc. 1.

2 Rec. Doc. 11.

3 Rec. Doc. 12.

I. Background

On May 30, 2019, Plaintiff filed a complaint in this Court against the Social Security

Administration, seeking review of a final decision of the Commissioner of the Social Security

Administration denying Plaintiff’s claim for DIB and SSI.4 On August 8, 2019, Defendant filed

the instant “Motion to Dismiss the Plaintiff’s Complaint as Untimely,” asserting that the case

should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction.5 Plaintiff did not file an opposition to the motion to dismiss.

On August 29, 2019, the Magistrate Judge issued a Report and Recommendation,

recommending that the motion to dismiss be granted and the case be dismissed pursuant to Federal

Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.6 Specifically, the

Magistrate Judge found that the Complaint was not timely filed within 60 days after the mailing

of notice to Plaintiff of a final decision by the Commissioner.7 Additionally, the Magistrate Judge

determined that Plaintiff was not entitled to equitable tolling of the limitations period.8

Pursuant to 28 U.S.C. § 636(b)(1), the parties had 14 days to object to the

recommendation.9 To date, no objections have been filed.

II. Standard of Review

In accordance with Local Rule 73.2, this case was referred to a Magistrate Judge to provide

a Report and Recommendation. A district judge “may accept, reject, or modify the recommended

4 Rec. Doc. 1.

5 Rec. Doc. 11.

6 Rec. Doc. 4.

7 Id. at 3.

8 Id. at 4.

9 28 U.S.C. § 636(b)(1).

disposition” of a magistrate judge on a dispositive matter.10 The district judge must “determine de

novo any part of the [Report and Recommendation] that has been properly objected to.”11 A district

court’s review is limited to plain error of parts of the report which are not properly objected to.12

III. Law and Analysis

Defendant seeks dismissal of the Complaint pursuant to Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction.13 The Magistrate Judge recommended that this

Court grant the motion and dismiss the Complaint pursuant to Rule 12(b)(1).14 Neither party

objects to the recommendation. Accordingly, this Court’s review is limited to plain error.

Section 205(g) of the Social Security Act permits judicial review of a “final decision of the

Commissioner made after a hearing,” and it requires any individual seeking court review to file

suit “within sixty days after the mailing to him of notice of such decision or within such further

time as the Commissioner may allow.”15 The Commissioner, by regulations published December

9, 1976, has interpreted “mailing” as the date of receipt by the individual of the Social Security

Appeals Council’s notice of denial of a request for review of the presiding officer’s decision or of

the Appeals Council’s decision.16 The date of receipt is presumed to be five days after the date on

the notice, unless the plaintiff can show that he did not receive the notice within the five-day

10 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

11 Id.

12 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by

statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).

13 Rec. Doc. 11.

14 Rec. Doc. 12.

15 42 U.S.C. § 405(g).

16 20 C.F.R. § 404.981.

period.17 The regulations also provide that the Commissioner will extend the limitation period for

a claimant who fails timely to bring suit where the claimant demonstrates “good cause,” in writing,

for his delay.18

Here, Plaintiff attaches a copy of the Social Security Appeals Council’s notice of decision

to the Complaint.19 That notice is dated November 30, 2018.20 Accordingly, pursuant to the

regulations, Plaintiff is presumed to have received the notice on December 5, 2018, and she had

60 days to seek review before this Court. Plaintiff did not file the Complaint until May 30, 2019,

nearly six months later.21 Therefore, the Complaint was not timely filed.

The Supreme Court has held that the doctrine of equitable tolling may be applied to the

sixty-day limitations period.22 The Supreme Court further explained that, in most cases, the

Commissioner should make the determination whether to extend the 60-day period, and that only

“where the equities in favor of tolling the limitations period are so great that deference to the

agency’s judgment is inappropriate,” should the courts extend the period.23 Plaintiff has not

demonstrated any extraordinary circumstances or equities that would render equitable tolling

appropriate here.

17 20 C.F.R. §§ 404.901, 422.210(c).

18 20 C.F.R. § 404.982.

19 Rec. Doc. 1-2 at 1.

20 Id.

21 Rec. Doc. 1.

22 See Bowen v. City of New York, 476 U.S. 467 (1986).

23 Id. at 480.

Finally, the Court notes that the Commissioner seeks dismissal pursuant to Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.24 However, both the Supreme

Court and the Fifth Circuit have repeatedly held that that “[t]he time requirement [for judicial

review of the Commissioner’s decision] is a statute of limitation, not a jurisdictional bar, and may

be waived.”25 Therefore, the Fifth Circuit has found that a motion to dismiss filed by the

Commissioner of Social Security seeking dismissal on timeliness grounds invokes Rule 12(b)(6),

not Rule 12(b)(1).26 Accordingly, the Fifth Circuit instructs that a district court must evaluate such

a motion under the more appropriate Rule 12(b)(6) standard.27 Additionally, the Court notes that

although Defendant purportedly filed the instant motion pursuant to Rule 12(b)(1), Defendant

requests that the action be dismissed with prejudice.28 Dismissals pursuant to Rule 12(b)(1) for

lack of subject matter jurisdiction are without prejudice,29 whereas dismissals pursuant to Rule

12(b)(6) for failure to state a claim are with prejudice.30 Therefore, it is appropriate to consider the

instant motion under a Rule 12(b)(6) standard.

24 Rec. Doc. 11-1.

25 Thibodeaux by Thibodeaux v. Bowen, 819 F.2d 76, 79 (5th Cir. 1987) (citing Triplett v. Heckler, 767 F.2d 210, 211

(5th Cir. 1985)). See also Mathews v. Eldridge, 424 U.S. 319, 328 n.9 (1976); Weinberger v. Salfi, 422 U.S. 749, 763–

64 (1975).

26 Triplett, 767 F.2d at 211–12 (citing Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983) (per curiam)).

27 Id. at 212. In Triplett, the Fifth Circuit also noted that because the district court considered material outside the

pleadings in deciding the motion, the district court “should have converted the Rule 12(b)(6) motion for dismissal into

a Rule 56 motion for summary judgment and observed the procedural requirements that Rules 12(b) and 56 prescribe.”

Id. (citing Auster Oil & Gas v. Stream, 764 F.2d 381, 390 n. 9 (5th Cir. 1985)). Here, the Court does not consider any

material outside the pleadings. Accordingly, the Court will treat the motion as a Rule 12(b)(6) motion to dismiss.

28 Rec. Doc. 11-1 at 5.

29 See Warnock v. Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir. 1996) (“Because sovereign immunity deprives the court

of jurisdiction, the claims barred by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with

prejudice.”).

30 See Stevens v. Bank of America, N.A., 587 F. App’x 130, 133 (5th Cir. 2014) (“It is well established that Rule

12(b)(6) dismissals are made on the merit.”).

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”31 A motion to dismiss for failure to state

a claim is “viewed with disfavor and is rarely granted.”32 “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that

is plausible on its face.’”33 The Fifth Circuit has stated that “[w]hile a statute-of limitations defense

may be raised in a motion to dismiss under [Rule] 12(b)(6), such a motion should not be granted

unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’”34 “In considering a motion to dismiss for failure to state a

claim, a district court must limit itself to the contents of the pleadings, including attachments

thereto.”35

As discussed above, the Complaint and the attachments thereto clearly show that Plaintiff

filed the instant case almost six months after receiving notice of the Appeals Council’s decision.

Additionally, Plaintiff pleads no facts to show any extraordinary circumstances or equities that

would render equitable tolling appropriate here. Furthermore, Plaintiff had an opportunity to

respond the motion to dismiss and to object to the Magistrate Judge’s report and recommendation

to assert such facts, but she has failed to do so. Therefore, because it appears beyond dispute that

this case was not timely filed and there are no facts Plaintiff could prove in support of her claim

that would entitle her to relief, the Court will grant Defendant’s motion to dismiss.

Accordingly,

31 Fed. R. Civ. P. 12(b)(6).

32 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

33 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

34 Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tenn., 706 F.2d 638, 640 (5th Cir. 1983).

35 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R. Civ. P. 12(b)(6)).

IT IS HEREBY ORDERED that the Court ADOPTS the Report and Recommendation

IN PART to the extent it recommends that this action be dismissed. The Court REJECTS the

Report and Recommendation IN PART to the extent it recommends dismissal pursuant to Federal

Rule of Civil Procedure 12(b)(1).

IT IS FURTHER ORDERED that “Motion to Dismiss the Plaintiff's Complaint as

Untimely,” is GRANTED IN PART to the extent that it seeks dismissal of this action as untimely.

The motion is DENIED IN PART to the extent it seeks dismissal pursuant to Federal Rule of

Civil Procedure 12(b)(1).

IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE

pursuant to Federal Rule of Civil Procedure 12(b)(6) because it was not timely filed.

NEW ORLEANS, LOUISIANA, this 12th day of December, 2019.

NANNETTE JOLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT