Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.allen Wayne Harris, Appellant, v. Shirley S. Chater, Commissioner of Social Security,* Appellee, 68 F.3d 478 (8th Cir. 1995)

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US Court of Appeals for the Eighth Circuit - 68 F.3d 478 (8th Cir. 1995) Eighth Circuit.Oct. 24, 1995

Before BOWMAN, BEAM, and MURPHY, Circuit Judges.


Allen Wayne Harris appeals the district court's1  dismissal of his action seeking review of the final decision of the Commissioner denying his claim for disability insurance benefits. We affirm.

Harris filed an action for review more than sixty days after the presumptive date he received a letter from the Appeals Council informing him of the Commissioner's final decision. The district court dismissed his action as untimely. On appeal, Harris argues that his attorney misread the unclear date stamp on the Appeals Council's letter, and that the sixty-day time limit should be equitably tolled.

We conclude the district court correctly dismissed Harris's suit as untimely, because it was filed more than sixty days after the presumptive date Harris received the Commissioner's decision. See 42 U.S.C. § 405(g); 20 C.F.R. Sec. 422.210(c) (1994). We also conclude that no basis for equitable tolling exists, because Harris's late filing was due to his attorney's simple negligence. See Bowen v. City of New York, 476 U.S. 467, 478-81 (1986) (time limit of Sec. 405(g) subject to equitable tolling where called for by facts of case); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (tolling allowed where party tricked or deceived by adversary's misconduct, or where filing was timely but defective; no tolling when late filing result of "garden variety" excusable neglect of attorney).

We do not address Harris's motion to remand to the Appeals Council. The judgment is affirmed.


The Honorable H. David Young, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)


As of March 31, 1995, the Social Security Administration became an independent agency from the Department of Health and Human Services. Therefore, the court has substituted Shirley S. Chater for the Secretary of Health and Human Services pursuant to Fed. R. App. P. 43(c)