United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
brought this action seeking review of a final decision of the
Commissioner of Social Security (“Commissioner”)
denying her application for Child Insurance Benefits pursuant
to Title II of the Social Security Act. Defendant moves to
dismiss the complaint pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6), arguing that the
instant action is untimely. ECF No. 13. Plaintiff opposes the
motion. ECF No. 16. For the following reasons,
defendant’s motion is granted.
September 16, 2014, plaintiff filed an application for Child
Insurance Benefits, claiming that she had been disabled since
January 1, 2007. Decl. of Dexter Potts, Ex. 1 (ECF No. 13-1
at 8). Her application was denied initially and upon
reconsideration. Id. at 7. After holding a hearing,
an administrative law judge (“ALJ”) issued a
decision finding that plaintiff was not entitled to benefits
under Title II of the Act. Id. at 7-15.
request for Appeals Council review was denied on March 27,
2018, leaving the ALJ’s decision as the final decision
of the Commissioner. Id. at 20-26. Plaintiff
subsequently filed the instant action on June 1, 2018,
sixty-six days after the Appeals Council denied her request
for review. ECF No. 1.
Commissioner moves for dismissal of this action, arguing that
it was untimely filed. ECF No. 13.
Relevant Legal Standard
sovereign, the United States is immune from suit except
according to its consent to be sued. Lehman v.
Nakshian, 453 U.S. 156, 160 (1981). Congress has
authorized federal judicial review of “any final
decision of the Commissioner of Social Security made after a
hearing on which [the claimant] was a party.” 42 U.S.C.
§ 405(g). To seek judicial review of a final decision of
the Commissioner, a plaintiff must commence a civil action in
federal court “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.”
Id. The term “mailing” is construed as
the date the claimant receives the notice. Vernon v.
Heckler, 811 F.2d 1274, 1277 (9th Cir.1987). A claimant
is presumed to have received notice “5 days after the
date of such notice, unless there is a reasonable showing to
the contrary.” 20 C.F.R. § 422.210(c).
60-day statute of limitations set forth in section 405(g) is
a condition of sovereign immunity and therefore must be
strictly construed. Bowen v. City of New York, 476
U.S. 467, 479 (1986). “Accordingly, courts have
dismissed actions filed only days after the expiration of
this statute of limitations.” Edmond v.
Colvin, 2014 WL 4964309, at * 3 (C.D. Cal. Aug. 29,
2014) (citing Tate v. United States, 437 F.2d 88
(9th Cir. 1971)); see also Fletcher v. Apfel, 210
F.3d 510 (5th Cir. 2000) (affirming dismissal of case filed
one day outside the statute of limitations); Williams v.
Comm’r Soc. Sec., 2019 WL 1556659 (E.D. Cal. Apr.
10, 2019) (dismissing case filed one day late); Davila v.
Barnhart, 225 F.Supp.2d 337 (S.D.N.Y. 2002) (same).
However, the Supreme Court has held that equitable tolling of
the sixty-day requirement is consistent with Congress’
intent in enacting 405(g). Bowen, 476 U.S. at 468.
undisputed that the Appeals Council’s notice is dated
March 27, 2018. Under the Commissioner’s regulations,
plaintiff is presumed to have received the notice on April 1,
2018, with the sixty-day limitation period expiring on May
31, 2018. Plaintiff, however, did not initiated this action
until June 1, 2018. ECF No. 1.
contends, however, that this case was timely filed because
her attorney was never sent a copy of the Appeals
Council’s denial of review and, due to her disability,
plaintiff did not receive her copy of the notice until May
2018. ECF No. 16 at 2-4.
administrative level, plaintiff was represented by her
father, attorney Andrew Kalnoki-who is also plaintiff’s
counsel in this case-and his wife, Kathi Kolnoki. ECF No.
13-1 at 8; Decl. of Andrew Kalnoki ¶ 7. The
Commissioner’s records do not reflect that the notice
was mailed specifically to Mr. Kalnoki. ECF No. 13-1 at 23,
26. But a copy of the notice was mailed to Kathi Kolnoki at
1324 Singingwood Court #2, Walnut Creek, California, which is
also Mr. Kolnoki’s address of record in this action.
ECF No. 13-1 at 23, 26; ECF No. 1 at 1. Thus, the record
reflects that written notice of the Appeals Council’s
determination was sent to one of plaintiff’s
representative, and to the address of record of the other.
Commissioner’s regulations provide that “[a]
notice or request sent to your representative, will have the
same force and effect as if it had been sent to you.”
20 C.F.R. § 404.1715(b). Moreover, this court-as well as
several other courts-has held that a representative’s
receipt of the Appeals Council’s determination triggers
the sixty-day limitation period. Allen v. Colvin,
No. 2:13-cv-1366-EFB, 2015 WL 3902832, at *3 (E.D. Cal. June
24, 2015); see Roberts v. Shalala, 848 F.Supp. 1008,
1013-1015 (M.D. Ga. 1994) (“In those cases in which a
representative has been designated by a claimant according to
the regulations, this court would begin the sixty day period
for filing an appeal from the date of notification of the
representative, whether it be presumed date of notification
or the actual date established by reasonable