Jackson v. Astrue

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

NOV 09, 2007

No. 06-16459 THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 06-00629-CV-N

PATRICIA A. JACKSON,

Plaintiff-Appellant,

versus

MICHAEL J. ASTRUE,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(November 9, 2007)

Before MARCUS and PRYOR, Circuit Judges, and LAND,* District Judge.

MARCUS, Circuit Judge:

*

Honorable Clay D. Land, United States District Judge for the Middle District of Georgia, sitting

by designation.

Patricia A. Jackson appeals the district court’s dismissal of her challenge to

the administrative denial of her application for Supplemental Social Security

(“SSI”), filed under Title XVI of the Social Security Act (“SSA”), 42 U.S.C. §

1383(c). The district court dismissed the complaint as untimely, because it was

not filed within the 60-day statute of limitations, enumerated in 42 U.S.C. §

405(g), for federal court review of SSI denials. On appeal, Jackson contends that

the district court erred in dismissing her complaint, because the doctrine of

equitable tolling applied to excuse her tardy filing. After thorough review, we

affirm the judgment of the district court.

I.

The facts relevant to our equitable tolling analysis are these. On August 31,

2004, Jackson sought SSI benefits for injuries she sustained in an automobile

accident earlier that month. On February 3, 2006, following a hearing, an

Administrative Law Judge (“ALJ”) denied Jackson’s petition on the ground that

her injuries did not qualify as “disabilities” under the SSA. On April 21, 2006, the

SSA’s Appeals Council (“the Appeals Council”) denied Jackson’s request for

review. At this point, the ALJ’s decision became final, subject to federal court

review under 42 U.S.C. §§ 405(g)1 and 1383(c)(3). In its letter,2 the Appeals

1

In pertinent part, that Section provides as follows:

2

Council unambiguously “advised Jackson to file her complaint in the United

States District Court for the judicial district in which she lives within sixty days

from the date of her receipt of the letter.” Jackson v. Barnhart, Civil Action No.

2:06cv629-CSC (M.D. Ala. 2006). Additionally, the Appeals Council informed

Jackson that “[the Council] would assume that Jackson received this letter 5 days

after the date on it unless you show us that you did not receive it within the 5-day

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. 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 business, or, if he does not reside or have his

principal place of business within any such judicial district, in the United States

District Court for the District of Columbia. . . . .

42 U.S.C. § 405(g).

2

In pertinent part, the letter advised Jackson this way:

You may file a civil action (ask for court review) by filing a complaint in the United

States District Court for the judicial district in which you live . . . .

You or your representatives must deliver copies of your complaint and of the

summons issued by the court to the U.S. Attorney for the judicial district where you

file your complaint, as provided in Rule 4(i) of the Federal Rules of Civil Procedure.

You or your representative must also send copies of the complaint and summons, by

certified or registered mail, to the Social Security Administration's Office of the

General Counsel that is responsible for the processing and handling of litigation in

the particular judicial district in which the complaint is filed. . . .

You or your representative must also send copies of the complaint and summons,

certified or registered mail, to the Attorney General of the United States, Washington

DC 20530.

3

period.” Id. Thus, according to the terms of the April 21, 2006 letter, and

consistent with the 60-day statute of limitations, Jackson was required to file her

complaint in the United States District Court for the Middle District of Alabama

on or before June 26, 2006.

Instead, on June 20, 2006, Jackson filed a pro se complaint challenging the

Commissioner’s denial of her SSI claim in the state circuit court of Montgomery

County, Alabama. Then, on July 13, 2006, that court dismissed Jackson’s

complaint for lack of jurisdiction. Thereafter, on July 18, 2006, twenty-two days

after § 405(g)’s statute of limitations had expired, Jackson filed a complaint in the

United States District Court for the Middle District of Alabama.

Appellee, the Commissioner of Social Security (“the Commissioner”),

promptly moved to dismiss Jackson’s petition under Rules 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure, on the ground that the complaint was

untimely filed. On December 12, 2006, the district court granted the

Commissioner’s motion to dismiss. This appeal followed.

II.

We review de novo the district court’s dismissal of Jackson’s complaint for

failure to satisfy the statute of limitations, accepting as true the allegations

contained in the complaint. Byrd v. MacPapers, Inc., 961 F.2d 157, 159 (11th Cir.

4

1992). “The question of whether equitable tolling applies is a legal one subject to

de novo review.” Cabello v Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir.

2005).

On appeal, Jackson bases her challenge to the district court’s dismissal of

her § 405(g) complaint on the theory of equitable tolling. Specifically, Jackson

says that Congress has made explicit its intention that equitable tolling apply to

the SSA’s statute of limitations. In addition, Jackson challenges the district court’s

application of Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965), a

case discussing equitable tolling in the context of the Federal Employers’ Liability

Act (“FELA”), 45 U.S.C. § 56, to the facts of her case, citing the SSA’s more

permissive approach to equitable tolling.

We consider two threshold questions: first, whether the doctrine of

equitable tolling applies to the statute of limitations period embodied in § 405(g),

and if so, what showing a claimant must make before the court may toll the SSA’s

statutory period.

It is by now axiomatic that the United States “is immune from suit save as it

consents to be sued,” and Congress alone determines how and when the United

States may be sued for judicial review of administrative orders and judgments.

Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (quoting United States v. Testan,

5

424 U.S. 392, 399 (1976)). In 42 U.S.C. § 405(g), Congress waived sovereign

immunity by giving the federal courts jurisdiction to review and modify or reverse

the Commissioner’s decisions. See Huie v. Bowen, 788 F.2d 698, 705 (11th Cir.

1986). As such, the remedies outlined in that statute are the exclusive source of

federal court jurisdiction over cases involving SSI. 42 U.S.C. § 405(h) (“No

findings of fact or decision of the Commissioner of Social Security shall be

reviewed by any person, tribunal, or governmental agency except as herein

provided.”). Again, in pertinent part, that statute provides that a claimant may

obtain review of the Commissioner’s decision by filing “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] may allow. Such action shall be brought in the

district court of the United States for the judicial district in which the plaintiff

resides . . . .” 42 U.S.C. § 405(g) (emphasis aded). Owing to the explicit discretion

§ 405(g) affords, the Supreme Court has held “that application of a traditional

equitable tolling principle to the 60-day requirement of § 405(g) is fully consistent

with the congressional purpose and is nowhere eschewed by Congress.” Bowen v.

City of New York, 476 U.S. 467, 480 (1986) (quotation marks omitted).

Thus, as a preliminary matter, it is clear that the doctrine of equitable tolling

is available to a claimant whose § 405(g) challenge in the district court was

6

untimely. We must also determine, however, precisely what showing a claimant

must make before a court may actually toll the statute. We have not had occasion

to address this question in a published opinion.

We do so now and hold that traditional equitable tolling principles require a

claimant to justify her untimely filing by a showing of extraordinary

circumstances. In an unpublished opinion, Waller v. Comm’r, 168 Fed. Appx. 919

(11th Cir. 2006), we held, in the context of § 405(g), that traditional equitable

tolling principles require a claimant to justify her untimely filing by a showing of

extraordinary circumstances. Id. at 922. The extraordinary circumstances

standard, we explained, may be met “where the defendant misleads the plaintiff,

allowing the statutory period to lapse; or when the plaintiff has no reasonable way

of discovering the wrong perpetrated against her . . . .” Id.

The Second Circuit has addressed the applicability of equitable tolling to §

405(g)’s statute of limitations and has defined the claimant’s burden this way:

“[T]he doctrine of equitable tolling permits courts to deem filings timely where a

litigant can show that ‘he has been pursuing his rights diligently’ and that ‘some

extraordinary circumstance stood in his way.’” Torres v. Barnhart, 417 F.3d 276,

279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see

also Davila v. Barnhart, 225 F. Supp. 2d 337, 339 (S.D.N.Y. 2002) (pointing out

7

that, in the context of § 405(g), the “[p]laintiff bears the burden of establishing the

exceptional circumstances that warrant equitable tolling.”).

We think the law clearly requires that “a finding of extraordinary

circumstances” is necessary before a court may equitably toll the SSA’s statutory

period, and this determination “is reserved for extraordinary facts.” Cabello, 402

F.3d at 1148 (quotation marks omitted). This result should not be surprising in

view of the deference congressionally mandated periods of limitations demand.

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Procedural

requirements established by Congress for gaining access to the federal courts are

not to be disregarded by courts out of a vague sympathy for particular litigants.”);

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (noting that

equitable tolling “is to be applied sparingly.”). Moreover, requiring a claimant to

justify equitable tolling of the SSA’s statute of limitations by establishing

extraordinary circumstances is fully consistent with our approach to equitable

tolling in other contexts.

Thus, for example, in Cabello, we required plaintiffs suing under both the

Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, and the Torture Victim

Protection Act (“TVPA”), 28 U.S.C. § 1350, to demonstrate that extraordinary

circumstances prevented them from filing their claims within those statutes’ 10-

8

year limitations periods. 402 F.3d at 1154 (quotation marks omitted) (“We must . .

. determine whether the facts of this case demonstrate extraordinary circumstances

sufficient for equitable tolling. This is a fact-specific determination because a

finding of extraordinary circumstances is reserved for extraordinary facts.”).

Specifically, we said: “[E]quitable tolling is appropriate in situations where the

defendant misleads the plaintiff, allowing the statutory period to lapse; or when

the plaintiff has no reasonable way of discovering the wrong perpetrated against

her.” Id. at 1155. In Cabello, the survivors of Winston Cabello, a Chilean official

who was murdered during a coup d’état, filed a lawsuit in the Southern District of

Florida against an ex-member of a Chilean military junta in 1973. Noting that

Congress had endowed both the ATCA and the TVPA with 10-year statutes of

limitations, the defendant argued that the plaintiffs’ claims, filed in 1999, were

time-barred. While we conceded that “in order to apply equitable tolling, courts

usually require some affirmative misconduct, such as deliberate concealment,” we

ultimately tolled the statute in that case because, we found, the deliberate

“cover-up of the events surrounding Cabello’s death made it nearly impossible for

the Cabello survivors to discover the wrongs perpetrated against Cabello.” Id. at

1155 (quotation marks omitted).

9

We have likewise applied an “extraordinary circumstances” standard to

tolling the statute of limitations set forth in 11 U.S.C. § 546 (a)(1). In re Int’l

Admin. Servs. Inc., 408 F.3d 689, 700-01 (11th Cir. 2005). In that case, we

explained that “[w]here, despite the exercise of due diligence, a trustee fails to

timely bring an avoidance action due to fraud or extraordinary circumstances

beyond the trustee's control, equitable tolling prevents the expiration of § 546(a)’s

limitations period.” Id. at 700. Ultimately, we determined that the plaintiffs

satisfied the extraordinary circumstances standard by demonstrating that IAS went

to “extreme lengths to conceal” evidence of the fraud they had committed, making

it nearly impossible for the bankruptcy trustee to obtain sufficient information to

file a complaint within the statutory period. Id. at 701. This Court has similarly

required claimants suing under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq., to justify equitable tolling of that statute's

limitations period by a showing of extraordinary circumstances. Ross v. Buckeye

Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993). In Ross, equitable tolling did

not apply, and we found clear error, where plaintiffs failed to show that “they had

no reason to believe they were victims of unlawful discrimination.” Id. at 660-61.

Lastly, this Court has applied the “extraordinary circumstances” standard to

claims brought under the Antiterrorism and Effective Death Penalty Act

10

(“AEDPA”), 28 U.S.C. § 2255. Sandvik v. U.S., 177 F.3d 1269, 1271 (11th Cir.

1999). (“Equitable tolling is appropriate when a movant untimely files because of

extraordinary circumstances that are both beyond his control and unavoidable

even with diligence.”). In that case, we refused to equitably toll AEDPA’s statute

of limitations, noting that “Sandvik’s motion was late because his lawyer sent it by

ordinary mail from Atlanta less than a week before it was due in Miami.” Id. at

1272. While we agreed that “the inefficiencies of the United States Postal Service

may be a circumstance beyond Sandvik’s control, the problem was one that

Sandvik’s counsel could have avoided by mailing the motion earlier or by using a

private delivery service or even a private courier.” Id.

Thus, while we believe the law is well-settled that equitable tolling may

apply to § 405(g)’s statute of limitations, before a court may do so it must apply

“traditional equitable tolling principles.” And traditional equitable tolling

principles require that the claimant demonstrate extraordinary circumstances, such

as fraud, misinformation, or deliberate concealment. Under the peculiar facts and

circumstances of this case, we fully agree with the district court’s determination

that Jackson has failed to demonstrate that extraordinary circumstances prevented

her from timely filing her § 405(g) case in the United States District Court for the

Middle District of Alabama.

11

Jackson offers four arguments in support of her claim that the district court

should have equitably tolled the statute of limitations. First, she says that she has

shown “good cause” for her untimely filing, as that term is defined in 20 C.F.R. §

416.1411.3 Second, she claims that her limited linguistic and legal experience

prevented her from fully comprehending the Appeals Council’s letter and caused

her to improperly file her challenge in state court. Third, she alleges that the state

circuit court clerk for Montgomery County, Alabama, misled her by allowing her

to file her case in county court without objection. Finally, Jackson questions the

applicability of the Supreme Court’s holding in Burnett, a case interpreting

FELA’s statute of limitations, to the facts of her case, citing the SSA’s more

permissive approach to equitable tolling. We consider each of these arguments in

turn in light of the “extraordinary circumstances” standard.

3

That regulation provides as follows:

In determining whether you have shown that you have good cause for missing a

deadline to request review we consider – (1) What circumstances kept you from

making the request on time; (2) Whether our action misled you; (3) Whether you did

not understand the requirements of the Act resulting from amendments to the Act,

other legislation, or court decisions; and (4) Whether you had any physical, mental,

educational, or linguistic limitations (including any lack of facility with the English

language) which prevented you from filing a timely request or from understanding

or knowing about the need to file a timely request for review.

20 C.F.R. § 416.1411(a).

12

As for Jackson’s first argument, unfortunately, § 416.1411 provides for a

“good cause” standard only in cases where a claimant is requesting that the

Appeals Council extend the deadline for filing a complaint in federal district court.

See 20 C.F.R. § 416.1482.4 Where, as here, the claimant is asking a United States

District Court to equitably toll the 60-day statute of limitations, the standard is

more demanding. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990)

(“[Federal courts] have generally been much less forgiving in receiving late filings

where the claimant failed to exercise due diligence in preserving his legal

rights.”). As we have discussed, when a court is asked to toll a congressionally

mandated statute of limitations, it has traditionally required a claimant to justify

untimeliness by showing extraordinary circumstances. Torres, 417 F.3d at 279; In

re Int’l Admin. Servs., Inc., 408 F.3d at 700; Cabello, 402 F.3d at 1155; Sandvik,

177 F.3d at 1271; Ross, 980 F.2d at 660; Davila, 225 F.Supp.2d at 339. Jackson’s

4

That regulation, promulgated by the United States Department of Labor, provides:

Any party to the Appeals Council's decision or denial of review, or to an expedited

appeals process agreement, may request that the time for filing an action in a Federal

district court be extended. . . . The request must be filed with the Appeals Council,

or if it concerns an expedited appeals process agreement, with one of our offices. If

you show that you had good cause for missing the deadline, the time period will be

extended. To determine whether good cause exists, we use the standards explained

in § 416.1411.

20 C.F.R. § 416.1482.

13

reliance on the “good cause” standard embodied in the Code of Federal

Regulations is misplaced.

Jackson contends, next, that the statute should be tolled in her case because

her limited linguistic and legal experience made it impossible for her to

understand that the law required her to file her claim in the United States District

Court, as opposed to state court. We are unpersuaded. The Appeals Council’s

instructions to Jackson could not have been clearer. The Appeals Council plainly

instructed Jackson that she could file a civil action (and ask for court review) by

filing a complaint in the United States District Court for the district in which she

lives. Moreover, the Appeals Council used such words as “United States District

Court,” “U.S. Attorney,” “Federal Rules of Civil Procedure,” and “Attorney

General of the United States, Washington, D.C.,” making it clearer still, we think,

that a civil action had to be filed in a federal court. Moreover, this Court has

defined “extraordinary circumstances” narrowly, and ignorance of the law does

not, on its own, satisfy the constricted “extraordinary circumstances” test. See

Wakefield v. Railroad Retirement Bd., 131 F.3d 967, 970 (11th Cir. 1997)

(“Ignorance of the law usually is not a factor that can warrant equitable tolling.”);

Sandvik, 177 F.3d at 1292 (refusing to equitably toll AEDPA’s statute of

limitations on the basis of Sandvik’s attorney’s negligence); see also Irwin, 498

14

U.S. at 96 (“[T]he principles of equitable tolling . . . do not extend to what is at

best a garden variety claim of excusable neglect.”). Simply put, Jackson has not

shown that her limited legal experience prevented her in some extraordinary way

from timely filing her § 405(g) complaint.

Third, Jackson claims that the Montgomery County Circuit Court clerk

“misled” her by processing her case without objection, thereby giving her the

impression that she had filed her claim in a court of competent jurisdiction when

in fact she had not. We have held that “to apply equitable tolling, courts usually

require some affirmative misconduct, such as deliberate concealment.” Cabello,

402 F.3d at 1155. Nothing in the record suggests the county court clerk

deliberately misled Jackson or otherwise actively concealed material information

from her, let alone that the Commissioner of Social Security misled her in any

way.

This is not to say that we would be unwilling to equitably toll a statute of

limitations where there is no evidence of deliberate concealment, but where the

claimant nevertheless has been misinformed by a court’s misleading actions or

instructions. Indeed, we have had several opportunities to address this question,

and, each time, we have equitably tolled the relevant statute of limitations.

Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir. 2007) (equitably tolling

15

AEDPA’s statute of limitations where the state habeas court advised Spottsville to

file his appeal in the wrong state court, and where Spottsville followed the state

court’s misleading advice to the letter); Goldsmith v. City of Atmore, 996 F.2d

1155, 1161 (11th Cir. 1993) (equitably tolling Title VII’s statute of limitations

where Goldsmith timely filed a defective pleading in the proper federal district

court, but where “the district court treated the [defective] filing as effective” until

the expiration of the 90-day period); Washington v. Ball, 890 F.2d 413, 415 (11th

Cir. 1989) (per curiam) (equitably tolling Title VII’s statute of limitations where

the appropriate federal court clerk received Washington’s motion for an extension

four days prior to the expiration of the statutory period, but then failed to file the

motion and returned it to Washington only after the period had expired). But

unlike the claimants in Washington and Goldsmith, Jackson did not timely file her

challenge, or a motion for an extension, in the appropriate court. Moreover, unlike

the courts in Washington, Goldsmith, or Spottsville, the Montgomery County

Court did not mislead Jackson or otherwise cause her filing error. Indeed, once the

county court determined that it lacked jurisdiction over Jackson’s complaint, it

dismissed her case with instructions to file her petition in the appropriate United

States District Court. In short, Jackson has failed to demonstrate that the county

court clerk prevented her in some extraordinary way from timely filing her §

16

405(g) complaint in the United States District Court for the Middle District of

Alabama.

Finally, Jackson says that the district court improperly applied the Supreme

Court’s holding in Burnett to the facts of her case. In Burnett, the Supreme Court

held, in the context of the Federal Employers’ Liability Act, that “when a plaintiff

begins a timely FELA action in a state court having jurisdiction, and serves the

defendant with process and the plaintiff’s case is dismissed for improper venue,

the FELA limitation is tolled during the pendency of the state suit.” Burnett, 380

U.S. at 434-35. We have interpreted Burnett as holding that a statute of limitations

can be tolled only by a plaintiff who timely files in a state court “with competent

jurisdiction over his claim.” Hairston v. Travelers Cas. & Sur. Co., 232 F.3d 1348,

1352 (11th Cir. 2000). Here, it is undisputed that § 405(g) makes the federal courts

the exclusive forum in which claimants may challenge final decisions of the

Commissioner. 42 U.S.C. § 405(g) (“Such action shall be brought in the district

court of the United States for the judicial district in which the plaintiff resides . . .

.”). The Montgomery County Circuit Court in which Jackson filed her claim was

not a court of competent jurisdiction over her claim.

Jackson notes, however, that whereas Burnett involved a claim for equitable

tolling under FELA, her case for equitable tolling falls under the more permissive

17

SSA. But nowhere in Burnett does the Supreme Court intimate, let alone state,

that its holding was the result of any supposed inflexibility in FELA’s limitations

period. To the contrary, in concluding that Congress did intend for courts to

equitably toll FELA’s statute of limitations, the Court “explicitly held” that “the

FELA limitation period is not totally inflexible,” and, “under appropriate

circumstances, it may be extended beyond three years.” Burnett, 380 U.S. at 427.

Indeed, that the Court tolled the statute in Burnett is an indication that FELA is

more malleable than Jackson suggests. In any event, this Court has had numerous

opportunities to consider the applicability of equitable tolling to statutes other than

FELA. In each case, we have determined that “filing in a court without competent

jurisdiction did not toll the statute of limitations.” Hairston, 232 F.3d at 1353

(holding that filing a claim in a state court without competent jurisdiction did not

toll the statute of limitations under the National Flood Insurance Program, 42

U.S.C. § 4072); Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1579-81

(11th Cir. 1985) (holding that filing a case in a state court without competent

jurisdiction did not toll the statute of limitations for claims brought under the

Death on High Seas Act, 46 U.S.C. § 761, et seq.); United States v. Md. Cas. Co.,

573 F.2d 245, 247 (5th Cir. 1978) (holding that filing a case in a state court without

18

competent jurisdiction did not toll the statute of limitations for claims brought

under the Miller Act, 40 U.S.C.A. § 270(b)).

In sum, we affirm the district court’s determination dismissing Jackson’s

complaint under 42 U.S.C. § 405(g). On this record, Jackson has not shown

extraordinary circumstances and, therefore, has not established entitlement to

equitable tolling. Jackson has not shown that the Commissioner engaged in any act

of affirmative misconduct in an effort to mislead her. Further, she was clearly

notified that she was obliged to commence suit in federal district court. And, to

the extent she filed suit in a state court, that court was without jurisdiction to

entertain her claim.

AFFIRMED.

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