United States District Court, E.D. Arkansas, Jonesboro Division
FRANK J. CUMMINS, JR. PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT
THE COURT is Defendant's Motion to Dismiss (DE #12). For
the reasons that follow, the motion is granted.
August 28, 2015, in No. 3:14-cv-288 BD, the Court reversed
and remanded the decision of the Commissioner for further
proceedings. Following those proceedings on June 3, 2016, the
Administrative Law Judge (ALJ) issued a decision denying
Plaintiff's claim for benefits. Plaintiff filed
exceptions to the ALJ's decision on or about August 1,
2016. The Appeals Council requested that Plaintiff provide
proof that his exceptions were timely on September 20, 2016.
On October 11, 2016, Plaintiff acknowledged that the
exceptions were not timely filed. Thereafter, the Appeals
Council advised Plaintiff on December 2, 2016, that it would
not consider Plaintiff's exceptions. Plaintiff then filed
this federal action on October 10, 2017. In response,
Defendant filed a Motion to Dismiss and Memorandum in Support
of Motion to Dismiss (Doc. Nos. 12, 13). Plaintiff filed an
untimely response to the motion. For the reasons that follow,
the Motion is granted.
Social Security regulations, “[w]hen a Federal Court
remands a case to the Commissioner for further consideration,
the Appeals Council, acting on behalf of the Commissioner,
may make a decision, or it may remand the case to an [ALJ]
with instructions to take action and issue a decision or
return the case to the Appeals Council with a recommended
decision.” 20 C.F.R. § 404.983. If a claimant
disagrees with the ALJ's new decision after remand from
the federal court, he may file exceptions with the Appeals
Council. See 20 C.F.R. § 404.984(b)(1). At any
time within the sixty (60) days after the date of the
decision of the ALJ, the Appeals Council may decide to assume
jurisdiction sua sponte, 20 C.F.R. §
404.984(c), but if the claimant files no exceptions and the
Appeals Council does not otherwise assume jurisdiction, the
decision of the ALJ becomes the final decision of the
Commissioner, 20 C.F.R. § 404.984(d). The claimant must
appeal the final decision of the Commissioner 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).
instance, Plaintiff filed untimely exceptions to the
ALJ's June 3, 2016, decision, and that decision became
the final decision of the Commissioner on the 60th day after
the decision (Doc. No. 13-1, at p. 7). The Notice of Decision
- Unfavorable stated in part that:
You must file your written exceptions with the Appeals
Council within 30 days of the date you get
this notice. . . . If you need more time to file your written
exceptions, you must file a written request with the Appeals
Council. . . within 30 days of the date you get this notice.
If you do not file written exceptions and the Appeals Council
does not review my decision on its own, my decision will
become final on the 61st day following the date of this
See 20 C.F.R. § 404.984(b) - (d). Because
Plaintiff did not submit timely written exceptions and the
Appeals Council did not assume jurisdiction, the ALJ's
decision became the final decision of the Commissioner on
August 3, 2016-the 61st day following June 3, 2016. The
Notice of Decision - Unfavorable stated further that:
After my decision becomes final, you will have 60 days to
file a new civil action in Federal district court. You will
lose the right to a court review if you do not file a civil
action during the 60-day period starting with the day my
decision becomes final. However, you can ask the Appeals
Council to give you more time to file a civil action. The
Appeals Council will grant your request for more time only if
you can show good reason for needing more time. We will not
send you any more notices about your right to file in Federal
(Doc. No. 13-1, at p. 7); see also 42 U.S.C. §
405(g). Sixty days after the decision became final (August 3,
2016) was Sunday, October 2, 2016; thus, Plaintiff had until
October 3, 2016, to file his civil action. The instant action
was filed on October 10, 2017.
United States Supreme Court has established that the
sixty-day time period is not jurisdictional, but rather
constitutes a statute of limitation. Bowen v. City of New
York, 476 U.S. 478 (1986) (citing Mathews v.
Eldridge, 424 U.S. 319, 328 n. 9 (1976); Weinberger
v. Salfi, 422 U.S. 749, 764 (1975)). “[T]he
statute of limitations embodied in § 405(g) is a
mechanism by which Congress was able to move cases to speedy
resolution in a bureaucracy that processes millions of claims
annually.” Id. at 481. It is well-established
that failure to comply with the sixty-day limitation warrants
dismissal. See Bess, supra; Turner v.
Bowen, 862 F.2d 708 (8th Cir. 1988). The sixty-day
period may, however, be equitably tolled by either the
Commissioner or the courts. See Bowen v. City of New
York, 476 U.S. 467, 479-81 (1986). “Equitable
tolling is premised on the excusable neglect of the filing
party.” Shempert v. Harwick Chem. Corp., 151
F.3d 793, 797 (8th Cir. 1998) (internal quotation and
citations omitted). Tolling has been limited to situations
involving “conduct (by someone other than the claimant)
that is misleading or fraudulent.” Turner v.
Bowen, 862 F.2d 708, 710 (8th Cir. 1988).
“Equitable tolling thus far has been allowed only in
those cases where the government has hindered a
claimant's attempts to exercise [his] rights by acting in
a misleading or a clandestine way.” Id.
(quoting Wong v. Bowen, 854 F.2d 630, 631 (2d Cir.
1988)). There was no evidence that the government took any
action to mislead Cummins or otherwise prevent him from
pursuing a timely appeal. “Ignorance of legal rights
does not toll a statute of limitations.” Id.
(quoting Larson v. American Wheel & Brake, Inc.,
610 F.2d 506, 510 (8th Cir. 1979)).
for the reasons set forth above, the Court grants the