United States District Court, N.D. California
ORDER DENYING DEFENDANT’S MOTION TO DISMISS,
ORDERING CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NO.
NATHANAEL M. COUSINS, UNITED STATES MAGISTRATE JUDGE
R.S. filed a complaint against Commissioner of Social
Security Andrew M. Saul alleging that he was wrongfully denied
disability benefits. Dkt. Nos. 1, 3. The Commissioner moved
to dismiss, arguing that R.S.’s motion was filed
outside the 60-day appeals window without a request for an
extension of time. Dkt. No. 15. R.S. opposed the motion to
dismiss, arguing that his late appeal was the result of
excusable neglect under Federal Rule of Civil Procedure 60.
Dkt. No. 22. The Court FINDS that R.S.’s late filing
was due to excusable neglect and that equitable tolling
should apply. The motion to dismiss is DENIED. The parties
are hereby ORDERED to file motions for summary judgment in
accordance with the Court’s Social Security Procedural
Order at Dkt. No. 5.
claim for disability benefits was denied by an Administrative
Law Judge on November 24, 2017. Dkt. No. 15, Ex. A. He
requested a review of that decision, and the Appeals Council
denied his request for review on November 6, 2018.
Id. A Notice of the Appeals Council’s denial
was mailed to R.S. on November 6, 2018. Id. The
Notice indicates that R.S. had 60 days to file a civil action
to contest his denial of benefits, “start[ing] the day
after” he received the letter. Id. The Notice
stated that receipt is assumed 5 days after the letter was
mailed. Id. R.S. filed his complaint in this case on
January 11, 2019. Dkt. No. 1.
U.S.C. § 405(g) states that a civil action appealing a
final decision of the Commissioner of Social Security made
after a hearing must be commenced within 60 days after the
plaintiff’s receipt of notice of the decision. The
60-day period begins to run on the day after the plaintiff
receives notice of the Appeals Council’s action. 20
C.F.R. §§ 404.968, 416.1468. The notice is presumed
to have been received “5 days after the date on the
notice.” 20 C.F.R. §§ 404.901, 416.1401.
60-day period is not jurisdictional, but constitutes a
statute of limitations. Mathews v. Eldridge, 424
U.S. 319, 328, n. 9 (1976); Weinberger v. Salfi, 422
U.S.749, 754 (1975). As such, it is subject to equitable
tolling. Bowen v. City of New York, 476 U.S. 467,
478–79 (1986). The 60-day statute of limitations in
§ 405(g) is “contained in a statute that Congress
designed to be ‘unusually protective’ of
claimants.” Id. at 480. Congress’s
authorization of the Secretary to toll the 60-day limits
expresses “its clear intention to allow tolling in some
cases.” Id. In addition to the
Secretary’s authority, the Court may apply traditional
equitable tolling principles to the 60-day period.
Id, ; Honda v. Clark, 386 U.S. 484, 501
Rule of Civil Procedure 60 provides equitable relief from a
judgment, order, or proceeding due to mistake, inadvertence,
surprise, or excusable neglect. Fed.R.Civ.P. 60(b)(1).
Excusable neglect includes failure to comply with a filing
deadline due to an attorney’s negligence, taking into
account all relevant circumstances. Lemoge v. United
States, 587 F.3d 1188, 1192 (9th Cir. 2009); Pioneer
Inv. Srvs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380,
394 (1993). Four factors guide the Court’s analysis of
the relevant circumstances: (1) danger of prejudice to the
opposing party, (2) length of delay and its potential impact
on the proceedings, (3) reason for the delay, and (4) whether
the movant acted in good faith. Bateman v. United States
Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir.
2000). In this Circuit, Rule 60 should be construed liberally
to ensure the general purpose of seeing that cases are tried
on their merits. Rodgers v. Watt, 722 F.2d 456, 459
(9th Cir. 1983).
the Appeals Council’s notice of final decision was
mailed to R.S. on November 6, 2018. Dkt. No. 15, Ex. A. The
letter states: “You have 60 days to file a civil action
(ask for court review). The 60 days starts the day after you
receive this letter. We assume you received this letter 5
days after the date on it unless you show us that you did not
receive it within the 5-day period.” Id. This
means that the letter was presumptively received 5 days after
November 6, 2018, or, on November 11, 2018. As the letter
states, the 60-day period started “the day after”
receipt. Id. The day after the November 11, 2018,
receipt was November 12, 2018. The sixty-day period beginning
on November 12, 2018, ended on January 10, 2019. Plaintiff
filed his complaint on January 11, 2019. Dkt. No. 1.
Commissioner’s motion to dismiss this case based on
R.S.’s untimely filing argues repeatedly that the
deadline for R.S. to file his complaint was January 9, 2019.
Dkt. No. 15 at 4. This is incorrect. The deadline, as
explained above, was January 10, 2019. With this in mind, the
Court goes on to discuss the four factors to determine
whether R.S.’s one-day-late filing was due to excusable
neglect under Rule 60 and decides whether to apply
traditional equitable tolling principles here.
the Court notes that the Commissioner argues in his reply
brief that Rule 60 does not apply to motions to dismiss.
However, he cites no authority to support this notion. Though
a motion to dismiss itself is not a “final judgment,
order, or proceeding” the Commissioner’s motion
to dismiss seeks dismissal of this entire action. The
Court’s granting of that motion would constitute a
final order in this case. Therefore, the Court finds the
application of the Rule 60 principles appropriate here.
decide whether neglect was excusable under Rule 60, the Court
considers: (1) danger of prejudice to the opposing party, (2)
length of delay and its potential impact on the proceedings,
(3) reason for the delay, and (4) whether the movant acted in
good faith. Batema ...