Haba v. Astrue, No. 2:2010cv00540 - Document 21 (W.D. Wash. 2010)
Court Description: ORDER denying defendant's 11 Motion to Dismiss. A COPY OF THIS ORDER HAS BEEN MAILED TO PLAINTIFF TODAY. Signed by Hon. Mary Alice Theiler.(GB)
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Haba v. Astrue Doc. 21 01 02 03 04 05 06 07 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 08 09 LINDA HABA, 10 11 12 13 14 15 16 ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner ) of Social Security, ) ) Defendant. ) ____________________________________ ) CASE NO. C10-540-MAT ORDER DENYING DEFENDANT’S MOTION TO DISMISS INTRODUCTION Plaintiff, proceeding pro se, seeks relief from a decision of the Commissioner of the 17 Social Security Administration (Commissioner) assessing an overpayment of Disability 18 Insurance Benefits (DIB). (Dkt. 4.) The Commissioner moves to dismiss this action under 19 Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and/or under 20 Rule 12(b)(6) for failure to state a claim upon which relief may be granted. (Dkt. 11.) Now, 21 having considered all submissions associated with the pending motion, as well as the remainder 22 of the record, the Court concludes that the Commissioner’s motion to dismiss should be denied. ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -1 Dockets.Justia.com 01 02 BACKGROUND In February 1992, plaintiff was found disabled and entitled to DIB as of April 22, 1990. 03 (Dkt. 4 at 11 (Ex. 4).) The Social Security Administration (SSA) subsequently advised 04 plaintiff, in a notice dated August 13, 2000, that she was not entitled to benefits for the period of 05 January 1999 through February 2000 due to her participation in substantial gainful activity. 06 (Dkt. 19 at 6 (Ex. 1).) The SSA explained that plaintiff had been overpaid $12,012.00 in 07 benefits. (Id. at 7.) 08 Plaintiff requested a waiver of the overpayment. In a notice dated July 18, 2001, the 09 SSA stated it could not approve the request for a waiver based on the facts in its possession at 10 that time. (Id. at 14 (Ex. 2).) The notice scheduled a personal conference, to take place on 11 August 13, 2001, in order to consider plaintiff’s request for a waiver of the overpayment, which 12 at that time totalled $8,544.00. (Id.) A subsequent letter, dated August 22, 2001, reflected 13 that plaintiff failed to appear for a personal conference on either August 13, 2001 or on the date 14 of the letter. (Id. at 16 (Ex. 3).) The letter informed plaintiff that the SSA found no basis for 15 changing its decision to deny the waiver request and directed plaintiff to refund the outstanding 16 overpayment within thirty days. (Id.) 17 Plaintiff timely filed a request for hearing. On October 16, 2002, an Administrative 18 Law Judge (ALJ) held a hearing, with plaintiff appearing and offering testimony. (Id. at 20 19 (Ex. 4).) The ALJ issued a decision, on January 12, 2003, finding plaintiff was not “‘without 20 fault’” in accepting the overpayment and, therefore, that a waiver of the overpayment, at that 21 point totalling $8,070.00, could not be granted. (Id. at 20-23.) 22 In a letter dated February 12, 2003, plaintiff requested review of the ALJ’s decision. ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -2 01 (Dkt. 4 at 9 (Ex. 3).) The Appeals Council, on April 2, 2003, found no basis for review, 02 making the ALJ’s decision the final decision of the Commissioner. (Dkt. 19 at 24-25 (Ex. 5).) 03 The Appeals Council advised plaintiff that she could commence a civil action within sixty days 04 of the date of its decision and that it would be presumed she received a copy of the decision 05 within five days of the decision date “unless a reasonable showing to the contrary [was] made.” 06 (Id. at 24.) The notice also advised plaintiff that, if she could not file a civil action within sixty 07 days, she could ask the Appeals Council for an extension upon provision of a “good reason for 08 not meeting the deadline.” (Id. at 25.) 09 Plaintiff did not commence a civil action within sixty days of the date of the Appeals 10 Council’s decision. She contends she was not aware any overpayment was outstanding until 11 she received a billing statement in October 2009. (Dkt. 15 at 1.) In a letter to the Appeals 12 Council dated October 9, 2009, plaintiff stated: “I sent in a request for an appeal of a decision 13 in February 2003, and have not heard anything back. I had heard that it may take a long time to 14 receive an answer, but this is a little longer than I expected.” (Dkt. 19 at 26 (Ex. 6).) She 15 again asked for a waiver of the overpayment. (Id.) The SSA responded, in a letter dated 16 February 1, 2010, by enclosing a copy of the Appeals Council’s April 2003 decision denying 17 plaintiff’s request for review. (Id. at 27 (Ex. 7).) Plaintiff submitted her complaint to this 18 Court on March 30, 2010. (Dkt. 1.) 19 20 DISCUSSION Pursuant to section 405(g) of title 42, a Social Security claimant may obtain review of a 21 “final decision” of the Commissioner by commencing a civil action “within sixty days after the 22 mailing to him of notice of such decision or within such further time as the Secretary may ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -3 01 allow.” 42 U.S.C. § 405(g). Absent “a reasonable showing to the contrary[,]” a claimant is 02 presumed to have received notice of the decision five days after the decision date. 20 C.F.R. § 03 422.210(c). 04 The requirement to obtain a final decision of the Commissioner is jurisdictional. 05 Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (citing Mathews v. Eldridge, 424 U.S. 06 319, 328 (1976)). In this case, with the Appeals Council’s decision denying plaintiff’s request 07 for review, the Commissioner issued a final decision subject to review in this Court. See 20 08 C.F.R. § 404.981; accord § 422.210. 09 The sixty-day period for filing a civil action is not jurisdictional. Vernon, 811 F.2d at 10 1277. Instead, this time period constitutes a statute of limitations. Id. (citing Mathews, 424 11 U.S. at 328 n.9; Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975)). As a statute of limitations, 12 the sixty-day filing deadline is subject to equitable tolling. Id. (citing Bowen v. City of New 13 York, 476 U.S. 467, 480 (1986)). The question in this case is, therefore, whether this action is 14 subject to dismissal based on the applicable statute of limitations or whether that limitations 15 period may be equitably tolled. 16 The affirmative defense of statute of limitations is properly raised in a responsive 17 pleading. Vernon, 811 F.2d at 1278 (citing Fed. R. Civ. P. (8)(c)). However, it may, in 18 certain situations, “be raised in a motion to dismiss when the running of the statute is apparent 19 from the face of the complaint.” Id. (citing Conerly v. Westinghouse Elec. Corp., 623 F.2d 20 117, 119 (9th Cir. 1980)). “Yet such a motion to dismiss should be granted ‘“only if the 21 assertions of the complaint, read with the required liberality, would not permit the plaintiff to 22 prove that the statute was tolled.”’” Id. (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -4 01 682 (9th Cir. 1980)). 02 In this case, the Commissioner neither raised an affirmative defense in a responsive 03 pleading, nor raised an argument properly discussing the statute of limitations, or in any way 04 addressing equitable tolling, in its motion to dismiss. The Commissioner, instead, argued that 05 plaintiff’s claims were jurisdictionally barred and/or had in some way failed to state a claim 06 upon which relief may be granted. 07 The Commissioner specifically argued that plaintiff failed to show “good cause” for 08 obtaining an extension of the sixty-day time period for seeking court review. This argument 09 recognizes that an extension of the sixty-day filing deadline may be granted by the 10 Commissioner where a request is made to the Appeals Council in writing and with a showing 11 that a claimant had “good cause for missing the deadline[.]” 20 C.F.R. § 404.982; accord § 12 422.210(c). See also § 404.911 (in considering the existence of good cause, the SSA 13 considers: (1) circumstances that kept the claimant from making the request on time; (2) 14 whether any action of the agency misled the claimant; (3) whether the claimant did not 15 understand the requirements of the Social Security Act resulting from amendments to the Act, 16 other legislation, or court decisions; and (4) whether the claimant had any limitations which 17 prevented her from timely filing). Good cause may, for example, be found where a claimant 18 “did not receive notice of the determination or decision.” § 404.911(b)(7). 19 The Commissioner argued, with the support of a declaration, that it was not aware of 20 any request for extension filed by plaintiff (Dkt. 11 at 5 and Dkt. 19 at 5) and that, consequently, 21 plaintiff failed to bring forth a judicially reviewable final decision. However, while a request 22 for an extension of time might avert the need for litigation, “a claimant apparently need not ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -5 01 request an extension from the [Commissioner] prior to raising an . . . equitable tolling 02 argument[.]” Vernon, 811 F.2d 1278 (citing Bowen, 476 U.S. 467). 03 Equitable tolling “focuses on whether there was excusable delay by the plaintiff[]” and 04 “may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information 05 bearing on the existence of his claim.” Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th 06 Cir. 2000). A statute of limitations may, therefore, be equitably tolled where a plaintiff shows 07 “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 08 circumstance has stood in his way.” Harris v. Carter, 515 F.3d 1051, 1054-55 (9th Cir. 2008) 09 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As explained by the Ninth Circuit: 10 11 12 13 14 We have stated that the purpose of the equitable tolling doctrine “is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004). Equitable tolling also serves to “prevent the unjust technical forfeiture of causes of action.” Id. Equitable tolling is typically granted when litigants are unable to file timely petitions as a result of external circumstances beyond their direct control. See [Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003)]. Equitable tolling is typically denied in cases where a litigant’s own mistake clearly contributed to his predicament. See [Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)]. 15 16 Id. at 1055. 17 In this case, plaintiff filed her complaint more than six and half years after the 18 presumptive deadline for filing. However, plaintiff claims she was not aware that the 19 overpayment issue was still outstanding until she received a billing statement in October 2009. 20 (See Dkt. 15.) She avers that, on the advice of a local Social Security office, she thereafter sent 21 the Appeals Council the above-described October 2009 letter inquiring as to the status of her 22 appeal, and that she filed her complaint within sixty days of receiving the February 2010 letter ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -6 01 which enclosed the Appeals Council’s decision. (Id.) Plaintiff contends that “[t]he local office 02 stated they also had never received a response to the request for an appeal.” (Id. at 1.) 03 The extensive delay between the filing of plaintiff’s request for review and her inquiry 04 as to its status raises doubts as to plaintiff’s diligence and the question of whether this is one of 05 the “rare” cases “in which the equities of tolling are compelling.” Bowen, 476 U.S. at 480-81 06 (finding tolling appropriate where the government’s “secretive conduct” prevented timely 07 filing). See also Vernon, 811 F.2d at 1275, 1278 (reversing and remanding for consideration 08 of equitable tolling where plaintiff alleged he was told by an SSA employee that an extension to 09 filing would be granted). However, the Commissioner, despite being asked for additional 10 briefing on the subject (see Dkt. 16), failed to counter plaintiff’s contention as to a gap of some 11 six and a half years between the issuance of the Appeals Council’s decision and plaintiff’s 12 receipt of a billing statement for the overpayment. Nor did the Commissioner address 13 plaintiff’s assertions as to her conversations with the local SSA office. At the very least, the 14 Court requires additional information and properly supported argument in order to consider the 15 issue of equitable tolling. See, e.g., Vernon, 811 F.2d at 1278 (reversing and remanding where 16 the statute-of-limitations issue was “not so clear-cut as to justify its resolution . . . prior to 17 affording [the claimant] the opportunity to further a factual basis for . . . equitable tolling.”) 18 The Court, therefore, finds insufficient basis, at this time, for dismissing plaintiff’s claims. 19 20 CONCLUSION For the reasons stated above, the Commissioner’s motion to dismiss (Dkt. 11) is 21 DENIED. This dismissal is without prejudice to the Commissioner seeking dismissal based 22 on the statute of limitations, either before or after the filing of a responsive pleading. See id.; ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -7 01 Jablon, 614 F.2d at 682. 02 03 DATED this 18th day of November, 2010. 04 A 05 Mary Alice Theiler United States Magistrate Judge 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER DENYING DEFENDANT’S MOTION TO DISMISS PAGE -8
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