United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUIDGE'S REPORT AND
L. SETSER, Magistrate Judge.
the Court is Defendant's Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(3) and 12(b)(6). (Doc. 9). In her motion,
Defendant asserts that Plaintiff's counsel filed his
complaint more than 75 days after receipt of notice of the
Appeals Council decision. Accordingly, Defendant contends
this matter should be dismissed. (Doc. 9). In support of her
motion, Defendant provides the Court with copies of documents
which reflect the procedural history as follows:
1. On June 25, 2015, the Appeals Council sent, by mail
addressed to Plaintiff at 19831 Natural Walk Rd., Springdale,
Arkansas, XXXXX-XXXX, a "Notice of Appeals Council
Action, " denying Plaintiff's request for review.
(Doc. 9-1, Ex.3). In said notice, Plaintiff was advised that
he had 60 days to file a civil action and that the 60 days
started the day after he received the letter. He was also
advised that it would be assumed he received the letter 5
days after the date of it unless he showed the Appeals
Council that he did not receive it within the 5-day period.
2. Plaintiff filed the instant action on September 10, 2015.
counsel argues that Plaintiff has a full scale I.Q. of 63 and
is mentally impaired, and has a hearing loss and
communicative difficulties. She also argues that he was
represented by different counsel in his underlying action
which was held before an ALJ in the State of Washington in
2014, prior to him moving to Fayetteville, Arkansas. She
states that Plaintiff contacted her to pursue an action in
federal court and reported the date of his Notice of Denial
of Review by the Appeals Council as July 6, 2015. In reliance
on that date, counsel states that she filed the action in
this court on September 10, 2015. (Doc. 1). It was the
understanding of Plaintiff's counsel that at that time,
Plaintiff's address was 3192 Adrian Ave., Apt. A,
Springdale, Arkansas. Plaintiff does not dispute
Defendant's recitation of the facts. In fact, in her
response, Plaintiff's counsel states that although
Plaintiff does not join Defendant's motion, "he
concedes its strength now that the full document has been
submitted into evidence and provided to counsel." (Doc.
10 at p. 2). Plaintiff provides the Court with a document
showing that counsel attempted to mail intake forms to
Plaintiff for completion on August 15, 2015. (Doc. 10-1).
Pursuant to the Court's request, Plaintiff submitted an
affidavit to the Court, stating that he contacted his present
counsel on July 17, 2015, and that his address on that date
was 3192 Adrian Ave., Apt. A, Springdale, Ark, 72764. (Doc.
12). He also states that it was his understanding that the
law firm opened his case on 7/21/15, but was unable to reach
him. Plaintiff does not recall the date he received the
Notice of Appeals Council Action, but believes "it was
shortly before I contacted McKinnon Law Firm on 7/17/2015;
i.e., I contacted McKinnon Law Firm because I
received the Notice." (Doc. 12). Plaintiff also states
that he recently moved from 5020 E. Wyman Road, Fayetteville,
AR 72701, to 308 Nonnmaker Dr., Fayetteville, AR 72701, which
is his current address. (Doc. 12).
Eighth Circuit Court of Appeals has noted that the
promulgated regulations require a civil action to be
commenced within sixty days after notice of the Appeals
Council decision "is received by the individual."
Bess v. Barnhart, 337 F.3d 988, 989 (8th Cir. 2003)
referencing 20 C.F.R. Â§ 422.210(c); 20 C.F.R. Â§Â§ 404.981,
416.1481. "The regulations further provide that receipt
of notice of the Appeals Council decision is presumed five
days after the date of notice, unless there is a reasonable
showing to the contrary;..." Bess, 337 F.3d at
989. If the Court presumes Plaintiff received the Appeals
Council's notice on June 30, 2015, the deadline for
filing Plaintiff's complaint would have been August 31,
2015. However, Plaintiff's complaint was not filed until
September 10, 2015.
case, Plaintiff's counsel does not provide the Court with
any legal authority to support her position. Instead, she
merely states: "It is up to this Court as to whether
mental retardation, partial deafness, moving across the
country to a different state, changing attorneys, and having
two addresses in Arkansas, is sufficient to merit a finding
of "extraordinary circumstances." The undersigned
has been unable to find an Eighth Circuit case where the
Court allowed the time limitations period for filing a
complaint to be equitably tolled when the claimant is
allegedly mentally retarded. Defendant cites to Bowen v.
City of New York, 476 U.S. 467, 481 (1986), for the
proposition that in most cases the Commissioner should make
the determination whether to extend the sixty 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. In McMillian v. Mississippi Lime
Co., 311 Fed.Appx. 942 (8th Cir. 2009), the Eighth Circuit
declined to equitably toll the limitations period for filing
in a non-social security case, where an individual alleged
that mental incapacity should have equitably tolled the
limitations period for filing. Plaintiff has failed to
provide the Court with sufficient facts or evidence
supporting her position for the Court to be able to conclude
that the filing period in this case should be equitably
the Court recommends granting Defendant's Motion to
Dismiss, and dismissing Plaintiff's case with prejudice.
The parties have fourteen days from receipt of our report and
recommendation in which to file written objections pursuant
to 28 U.S.C. Â§ 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal
questions of fact. The parties ...