United States District Court, W.D. Michigan, Southern Division
CLARENCE A. JAMES, III, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Janet T. Neff Judge.
REPORT AND RECOMMENDATION
KENT United States Magistrate Judge.
has filed this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of one or more orders entered by the
Commissioner of the Social Security Administration
(Commissioner). This matter is now before the Court on
defendant's motion to dismiss plaintiff's action for
lack of jurisdiction because the complaint is untimely (ECF
No. 10). The motion is unopposed.
brings this motion pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be granted.
See Rauch v. Day & Night Manufacturing Corp.,
576 F.2d 697, 702 (6th Cir. 1978) (“[w]hile the seven
enumerated defenses in Rule 12(b) do not expressly mention an
objection based on the bar of the statute of limitations, the
prevailing rule is that a complaint showing on its face that
relief is barred by an affirmative defense is properly
subject to a 12(b)(6) motion to dismiss for failure to state
a claim upon which relief can be granted”).
appeals of Social Security decisions are authorized by 42
U.S.C. § 405(g), which provides in pertinent part that:
Any individual after any final decision of the Commissioner
made after a hearing to which he was a party . . . 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 may
42 U.S.C. § 405(g) (emphasis added). The regulations
further provide that such a civil action:
Must be instituted within 60 days after the Appeals
Council's notice of denial of request for review of the
administrative law judge's decision . . . is received by
the individual. . . For purposes of this section, the date of
receipt of notice of denial of request for review of the
presiding officer's decision . . . shall presumed to be 5
days after the date of such notice, unless there is a
reasonable showing to the contrary.
20 C.F.R. § 422.210(c).
statute of limitations as set forth in § 405(g) serves
the dual purpose of eliminating stale claims and providing
“a mechanism by which Congress was able to move cases
to speedy resolution in a bureaucracy that processes millions
of claims annually.” Bowen v. City of New
York, 476 U.S. 467, 481 (1986). Courts have strictly
construed the statute of limitations in Social Security
appeals. “Even one day's delay in filing the action
is fatal.” Wiss v. Weinberger, 415 F.Supp.
293, 294 (E.D. Pa. 1976); Davidson v. Secretary of
Health, Education and Welfare, 53 F.R.D. 270, 271 (N.D.
Okla. 1971). See also Watson v. Commissioner of Social
Security, No. 1:06-cv-446 (W.D. Mich. Sept. 10, 2007)
(appeal dismissed as untimely when filed four days late);
Zampella v. Barnhart, No. 03-232-P-C, 2004 WL
1529297 (D. Me. June 16, 2004) (“[w]hile this result
might be considered harsh, delays of a single day have been
held to require dismissal”); White v. Secretary of
Health, Education & Welfare, 56 F.R.D. 497, 498
(N.D. N.Y. 1972).
this limitation is not jurisdictional and is subject to
equitable tolling. See Bowen, 476 U.S. at
478-82 (applying equitable tolling to the 60-day limitations
period when the agency engaged in “secretive
conduct”). In this regard, the Court considers five
factors in determining whether to toll the statute of
limitations in a Social Security Appeal:
(1) the petitioner's lack of [actual] notice of the
filing requirement; (2) the petitioner's lack of
constructive knowledge of the filing requirement; (3)
diligence in pursuing one's rights; (4) absence of
prejudice to the respondent; and (5) the petitioner's