The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TAMARA HOPERSBERGER, : CIV NO. 1:23-CV-879
:
Plaintiff, :
:
v. : (Magistrate Judge Carlson)
:
KILOLO KIJAKAZI, :
Acting Commissioner of Social Security :
:
Defendant :
MEMORANDUM OPINION
I. Factual Background
This case comes before us on a motion to reconsider our prior ruling dismissing
the plaintiff’s case as time barred. (Doc. 15). This motion is fully briefed and is,
therefore, ripe for resolution. For the reasons set forth below, the motion will be
DENIED.
By way of background, this is a pro se Social Security appeal filed by Tamara
Hopersberger. (Doc. 1). Ms. Hopersberger brought this action on May 26, 2022. (Id.)
Appended to Ms. Hopersberger’s complaint were exhibits in the form of
correspondence from her prior counsel which placed the plaintiff on notice that the
Social Security Appeals Council had denied her request for review on February 1,
2023, and she had sixty days from the date of notification of this action in which to
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take an appeal of this decision to the district court. (Id., Ex. A). Thus, Ms.
Hopersberger’s complaint explicitly indicated that the plaintiff was on notice that she
needed to file this appeal on or before April 7, 2023. Despite this express notification,
it is undisputed that Ms. Hopersberger waited until May 26, 2023, some six weeks
after the filing deadline, to commence this action challenging the Commissioner’s
decision.
On these facts, the Commissioner filed a motion to dismiss and brief on July
31, 2023, which argued that Hopersberger’s complaint was untimely under the sixty-
day limitations period that applies to Social Security appeals. (Docs. 10, 11). Mindful
of the fact that the court record revealed previous delays by Hopersberger in taking
necessary actions in this litigation, we entered an order on July 31, 2023, which
advised Hopersberger in clear and precise terms that:
The plaintiff shall file a response to the motion on or before August 18,
2023. Pursuant to Local Rule 7.7 the movant may then file a reply briefs
on or before September 1, 2023. All briefs must conform to the
requirements prescribed by Local Rule 7.8. No further extensions shall
be granted, absent compelling circumstances. The plaintiff, who is
proceeding pro se, is advised that Local Rule 7.6 of the Rules of this
Court imposes an affirmative duty on the plaintiff to respond to motions,
and provides that:
Any party opposing any motion, other than a motion for
summary judgment, shall file a brief in opposition within
fourteen (14) days after service of the movant's brief, or, if
a brief in support of the motion is not required under these
rules, within seven (7) days after service of the motion. Any
party who fails to comply with this rule shall be deemed not
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to oppose such motion. Nothing in this rule shall be
construed to limit the authority of the court to grant any
motion before expiration of the prescribed period for filing
a brief in opposition. A brief in opposition to a motion for
summary judgment and LR 56.1 responsive statement,
together with any transcripts, affidavits or other relevant
documentation, shall be filed within twenty-one (21) days
after service of the movant’s brief.
Local Rule 7.6 (emphasis added).
It is now well-settled that “Local Rule 7.6 can be applied to grant a
motion to dismiss without analysis of the complaint's sufficiency ‘if a
party fails to comply with the [R]ule after a specific direction to comply
from the court.’ Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991).”
Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL
3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, a failure to comply
with this direction may result in the motion being deemed unopposed
and granted.
(Doc. 12).
Notwithstanding this clear instruction, the deadline set by the court for
responding to this motion passed without any action by Hopersberger to respond to
this motion to dismiss. Accordingly, in the absence of any action by the plaintiff to
comply with the court’s orders and prosecute this appeal, this case was be deemed
ripe for resolution by the court and we dismissed Hopersberger’s complaint as time-
barred under the applicable statute of limitations governing Social Security appeals.
(Docs. 13 and 14).
This action on our part finally stirred Hopersberger to take some steps to
litigate her case. Specifically, Hopersberger filed a motion to reconsider this ruling
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which urged us to deny the Commissioner’s motion to dismiss based upon equitable
tolling of the statute of limitations due to what the plaintiff described as attorney
abandonment. (Doc. 15). This motion is now fully briefed and is ripe for resolution.
For the reasons set forth below, this motion to reconsider is denied.
II. Discussion
A. Motion to Reconsider—Standard of Review.
The legal standards that govern motions to reconsider are both clear, and
clearly compelling. “The purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp.
v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Typically, such a motion should only
be granted in three, narrowly defined circumstances, where there is either : “(1) [an]
intervening change in controlling law, (2) availability of new evidence not previously
available, or (3) need to correct a clear error of law or prevent manifest injustice”.
Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D. Pa. 1992 ). As the United
States Court of Appeals for the Third Circuit has aptly observed:
“The purpose of a motion for reconsideration ... is to correct manifest
errors of law or fact or to present newly discovered evidence.” Max's
Seafood Café, 176 F.3d at 677 (quoting Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir.1985)). “Accordingly, a judgment may be altered
or amended if the party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court
granted the motion for summary judgment; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice.” Id. (citation
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omitted).
Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251
(3d Cir. 2010). Thus, it is well-settled that a mere disagreement with the court does
not translate into the type of clear error of law which justifies reconsideration of a
ruling. Dodge, 796 F.Supp. at 830. Furthermore, “[b]ecause federal courts have a
strong interest in the finality of judgments, motions for reconsideration should be
granted sparingly.” Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp.
937, 943 (E.D. Pa. 1995). Moreover, it is evident that a motion for reconsideration
is not a tool to re-litigate and reargue issues which have already been considered and
disposed of by the court. Dodge, 796 F.Supp. at 830. Rather, such a motion is
appropriate only where the court has misunderstood a party or where there has been
a significant change in law or facts since the court originally ruled on that issue. See
Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.
1983).
B. This Motion to Reconsider Will Be Denied.
Judged against these legal benchmarks, Hopersberger’s motion to reconsider
will be denied. At the outset, we note that Hopersberger does not contend that there
has been an intervening change in the law that compels reconsideration of this case.
Nor does she assert that there are now new facts which warrant reconsideration of
our prior decision. Instead, she simply seems to argue that we should indulge in an
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equitable tolling of the limitations period—a limitations period which Hopersberger’s
own pleadings reveal was well known to the plaintiff—in order to avoid a manifest
injustice.
We disagree. On this score, we note that it appears on the face of the plaintiff’s
pleadings that her Social Security appeal is time-barred. In this regard, as we have
previously observed:
42 U.S.C. § 405(g) prescribes the period within which one must file a
complaint seeking judicial review of an administrative decision denying
social security benefits, and provides that: “Any individual, after any
final decision of the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action
commenced 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).
It is well-settled that this 60–day filing requirement is not a jurisdictional
limit on the power of the court, “but rather constitutes a period of
limitations.” Bowen v. City of New York, 476 U.S. 467, 478, 106 S.Ct.
2022, 90 L.Ed.2d 462 (1986). Nonetheless because the limitations
period is a condition of the waiver of sovereign immunity, and serves a
salutary purpose in ensuring timely submission of claims, this 60–day
limitations period “must be strictly construed.” Bowen v. City of New
York, 476 U.S. 467, 479, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).
However, as a statute of limitations, the 60–days limitations period
prescribed by § 405(g) is also subject to equitable tolling. Indeed, as the
Supreme Court has observed: “application of a ‘traditional equitable
tolling principle’ to the 60–day requirement of § 405(g) is fully
‘consistent with the overall congressional purpose’ and is ‘nowhere
eschewed by Congress.’ ” Bowen v. City of New York, 476 U.S. 467,
480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).
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Adopting these benchmarks courts have held that equitable tolling
should be rare and “equitable tolling is ‘to be applied sparingly’ ”
Kramer v. Comm'r of Soc. Sec., 461 F. App'x 167, 169 (3d Cir. 2012),
but have agreed that equitable tolling “may be appropriate: ‘(1) where
the defendant has actively misled the plaintiff respecting the plaintiff's
cause of action; (2) where the plaintiff in some extraordinary way has
been prevented from asserting his or her rights; or (3) where the plaintiff
has timely asserted his or her rights mistakenly in the wrong forum.’ ”
Cardyn v. Comm'r of Soc. Sec., 66 F. App'x 394, 397 (3d Cir. 2003)
quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994). With respect to equitable tolling claims made in
this setting, it is also clear that: “plaintiff bears the burden of establishing
that equitable tolling applies. Courtney v. La Salle Univ., 124 F.3d 499,
505 (3d Cir.1997).” Frazier v. Colvin, No. CIV.A. 13 28, 2013 WL
1891351, at *2 (W.D. Pa. May 6, 2013).
Pearson v. Colvin, No. 1:14-CV-1400, 2014 WL 7359190, at *3 (M.D. Pa. Dec. 23,
2014).
Furthermore, it is well-settled that:
In addition, a litigant “will not receive the benefit of” tolling in any of
these situations “unless she exercised due diligence in pursuing and
preserving her claim.” Santos, 559 F.3d at 197. That is, tolling will never
extend to “a garden variety claim of excusable neglect, such as a simple
miscalculation that leads a lawyer to miss a filing deadline.” Holland,
560 U.S. at 651–52, 130 S.Ct. 2549 (internal quotation marks and
citations omitted).
D.J.S.-W. by Stewart v. United States, 962 F.3d 745, 750 (3d Cir. 2020).
Applying these legal benchmarks to the facts of this case—which are
uncontested by Hopersberger—it is entirely undisputed that the Social Security
Appeals Council denied review of the plaintiff’s case on February 1, 2023. This
event triggered the plaintiff’s duty to file this action within sixty days and we know
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from an exhibit which Hopersberger attaches to her complaint that she was
specifically advised by her former counsel that he would not be representing her
moving forward and that she needed to file this complaint with the district court by
April 7, 2023, if she wished to further challenge this disability determination. (Doc.
1, Ex. A). Notwithstanding these clear instructions, Hopersberger did not file her
complaint in a timely fashion. Instead, she delayed some six weeks past this deadline
before acting.
Nothing presented by Hopersberger in her motion to reconsider changes these
immutable facts. Moreover, Hopersberger’s motion simply does not provide valid
grounds for invoking the equitable tolling doctrine. At the outset, it is clear that
Hopersberger cannot contend that the Commissioner actively misled her regarding
her rights. Quite the contrary, it is absolutely clear that the plaintiff was well aware
of her right to appeal, and her legal duty to pursue such an appeal within 60 days. Nor
can Hopersberger avail herself of equitable tolling by arguing that she timely filed an
appeal but mistakenly sought relief in the wrong forum. Thus, Hopersberger can only
obtain equitable tolling relief if she can show that she was in some extraordinary way
prevented from asserting her rights.
Hopersberger attempts to meet this exacting burden by arguing attorney
abandonment, but these efforts are unavailing. Typically, an essential element to an
attorney abandonment claim is a showing that the client was actively deceived by his
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or her counsel, and led to believe that counsel was acting on the client’s behalf when,
in fact, the attorney had abandoned the client. Thus,
The Third Circuit has recognized in certain cases that an attorney's
malfeasance, combined with the petitioner's reasonable diligence to
pursue his rights may warrant equitable tolling of the statute of
limitations. Ross v. Varano, 712 F.3d 784, 800 (3d Cir.2013); Schlueter
v. Varner, 384 F.3d 69, 76 (3d Cir.2004). For instance, the court found
equitable tolling was warranted in a Title VII case where counsel
misrepresented to his client that he had already timely filed a complaint,
and by the time the client discovered that he had not done so, the statute
of limitations had run. Seitzinger v. Reading Hosp. & Med. Ctr., 165
F.3d 236, 239 (3d Cir.1999).
Randle v. United States, 954 F. Supp. 2d 339, 346 (E.D. Pa. 2013). This essential
element of attorney abandonment—malfeasance coupled with misleading conduct—
is entirely lacking here. Far from misleading Hopersberger regarding her rights, the
plaintiff’s former counsel acted in an entirely transparent fashion, immediately
notifying her of the adverse Appeals Council decision, advising her that he would not
be able to represent the plaintiff moving forward, and explicitly placing Hopersberger
on notice of her obligation to pursue an appeal within 60 days. Given this clear notice
provided to the plaintiff by her former counsel, Hopersberger cannot excuse her
indolence by blaming her former attorney for her own failure to act. This attorney
abandonment claim fails.
Nor can Hopersberger meet her obligation of showing that she acted with due
diligence and is therefore entitled to equitable tolling of this limitations period. Quite
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the contrary, Hopersberger’s approach to this litigation has been marked by casual
indifference to her litigation obligations rather than any form of due diligence in
pursuing her rights. Thus, having defaulted on her obligation to timely filed her
complaint Hopersberger then engaged in a second default by failing to timely respond
to the Commissioner’s motion to dismiss. Since a showing of due diligence is
essential to any equitable tolling request, Hopersberger’s repeated indolence defeats
this belated equitable tolling claim. Given this immutable evidence, there simply are
no grounds for equitable tolling of this limitations period and a straightforward
application of § 405(g)’s sixty-day statute of limitations bars this appeal.
III. Conclusion
Accordingly, for the foregoing reasons, Hopersberger’s motion to reconsider
(Doc. 15) is DENIED.
An appropriate order follows.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
DATED: November 1, 2023
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