United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT U.S. MAGISTRATE JUDGE.
24, 2017, the Plaintiff, John Leonard Fadeley, filed a
Complaint against the Defendant, Commissioner of Social
Security, challenging the decision of the Defendant denying
Plaintiff supplemental disability insurance benefits (DIB).
ECF No. 1. In response, the Defendant filed a Motion to
Dismiss. ECF No. 17. In its Motion to Dismiss, the Defendant
argues that Plaintiff's Complaint should be dismissed as
untimely. The Plaintiff filed a response to the
Defendant's Motion to Dismiss arguing that he was
inhibited by the clerk's office in his effort to file a
Court set an evidentiary hearing for April 25, 2018, to
address the Plaintiff's when he received the notice of
final denial letter from the Appeals Council and his claim
that he was inhibited by the clerk's office in his effort
to file a timely complaint. The Plaintiff appeared for the
hearing by phone. The Defendant appeared by counsel, Helen
Campbell Altmeyer, Esq. The Plaintiff testified on his
behalf, as did his brother-in-law, David Tabb. For the
reasons that follow, the Court recommends the Defendants
Motion to Dismiss be denied.
FINDINGS OF FACT
Plaintiff applied for DBI. After a hearing, an Administrative
Law Judge denied Plaintiff's request on February 13,
2017. The Appeals Council denied Plaintiff's request for
review by way of a letter. Although the letter from the
Appeals Council was dated May 15, 2017, the Plaintiff did not
receive the letter until May 23, 2017. The Appeals
Council's letter informed the Plaintiff that should he
want to challenge the decision; an appeal must be filed in
the United States District Court for the judicial district in
which Plaintiff resides. The letter further stated the appeal
must be filed within sixty (60) days, beginning with the day
after receiving the letter.
Tabb went to the Martinsburg, West Virginia point of holding
court on July 18, 2017, to file the Plaintiff's appeal.
Mr. Tabb was not allowed to file the appeal because he did
not have the social security record of the case. Mr. Tabb
again tried to file the appeal on July 21, 2017, and was
again denied, this time because of some necessary paperwork
not being signed in the presence of a notary. The appeal was
ultimately filed on July 24, 2017.
Defendant argues that the Plaintiff's complaint was not
timely filed. A civil action may be initiated after the
Plaintiff receives notification of the final decision of the
Defendant denying benefits, and must be commenced within
sixty days. 42 U.S.C. § 405(g). The Appeals
Council's letter to Plaintiff states that “[t]he 60
days start the day after you receive this letter.” ECF
No. 1-2 at 3. While the letter also states that the Defendant
will “assume you received this letter 5 days after the
date on it”, this assumption is rebuttable.
Defendant argues Plaintiff's sixty day clock started on
May 20, 2017 because the Appeals Council presumed the
Plaintiff received their letter by that date. They presumed
this because the letter was dated May 15, 2017, and the
letter states that the Appeals Council presumes it received
within five days. This, Defendant argues, would have made
Plaintiff's deadline for filing July 19, 2017, five days
before the action was filed. However, the uncontroverted
testimony at the evidentiary hearing was that the Plaintiff
did not receive the letter from the Appeals Council until May
23, 2017. Accordingly, the Court will proceed under the
presumption that the sixty day clock did not start until May
24, 2017, the day after the evidence establishes the
Plaintiff received the letter.
days from May 24, 2017, would have been July 23, 2017, which
was a Sunday. When the last day for filing falls on a Sunday,
the period for filing “is extended to the first
accessible day that is not a Saturday, Sunday, or legal
holiday . . .” Fed.R.Civ.P. 6(a)(3), LR Gen. P. 5.09.
Accessible days are defined as days when the clerk's
office is available. Id. In this instance, since the
filing deadline fell on a Sunday, the deadline for filing
would be extended to the following Monday, which was July 24,
2017. The Plaintiff filed this action on July 24. 2017.
Therefore, the action is not untimely. The Court does not
need to reach the issue of equitable tolling.
on the foregoing, the Court concludes that the ALJ's
decision complied with the applicable law and regulations.
Accordingly, the Court RECOMMENDS THAT the
Defendant's [ECF No. 17] Motion to Dismiss be
party who appears pro se and any counsel of record,
as applicable, may, within fourteen days after being served
with a copy of this Report and Recommendation, file with the
Clerk of the Court written objections identifying the
portions of the Report and ...