United States District Court, N.D. California
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RE: DKT. NO. 16
Roderick Del Rosario brought this action seeking judicial
review of a decision by the Social Security Administration
(“SSA”) denying his claim for supplemental
security income benefits under Titles II and XVI of the
Social Security Act, 42 U.S.C. § 405(g). [Docket No. 1
(Compl.).] Defendant Andrew Saul,  Commissioner of Social
Security, now moves pursuant to Federal Rule of Civil
Procedure 12(b)(6) to dismiss Plaintiff's complaint on
the basis that it was untimely filed. [Docket Nos. 16
(“Mot.”); 18.] On June 19, 2019, the court
notified the parties that it would convert Defendant's
motion to dismiss into a motion for summary judgment on the
issue of timeliness and ordered Plaintiff to file
supplemental evidence and briefing. [Docket No. 19.]
Plaintiff filed an additional declaration on July 3, 2019.
[Docket No. 20 (“Waggoner Decl.”).] For the
following reasons, Defendant's motion for summary
judgment on the issue of timeliness is granted.
Factual Background and Procedural History
17, 2014, Plaintiff filed an application for supplemental
security income. [Docket No. 16-2 at 4.] On November 24,
2017, Administrative Law Judge (“ALJ”) Richard P.
Laverdure issued a decision partially denying Plaintiff's
claim for benefits under Title XVI. Id. Plaintiff
then requested review of the ALJ's decision by the
Appeals Council of the Social Security Administration. The
Appeals Council issued a decision dated September 21, 2018
denying Plaintiff's request for review, making the
ALJ's decision the final decision of the Commissioner.
[Docket No. 16-3 (“Notice”).] The Notice provided
information about how Plaintiff could seek court review of
the decision, including the following:
to File a Civil Action
• You have 60 days to file a civil action (ask for court
• The 60 days start 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.
filed this action on November 28, 2018, seeking judicial
review of the Appeals Council's decision under 42 U.S.C.
§ 405(g). Defendant moves for dismissal on the basis
that Plaintiff did not commence his suit within the 60-day
period specified by the Notice and by 42 U.S.C. §
405(g). According to Defendant, Plaintiff is presumed to have
received the Notice on September 26, 2018, five days after
its issuance, and was therefore required to commence this
action 60 days later, by November 26, 2018. Since Plaintiff
did not file suit until two days after the deadline,
Defendant contends that the action is untimely and should be
submitted a declaration and two exhibits as part of his
motion. [Docket No. 16-1 (“Voegele Decl.”).] When
a court considers matters outside the pleadings on a motion
under Rule 12(b)(6), it must convert the motion into a Rule
56 motion for summary judgment, and in so doing, the court
must give “[a]ll parties . . . a reasonable opportunity
to present all the material that is pertinent to the
motion.” Fed.R.Civ.P. 12(d); see also San Pedro
Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470,
477 (9th Cir. 1998) (“In providing notice to the
parties, ‘a district court need only apprise the
parties that it will look beyond the pleadings to extrinsic
evidence and give them an opportunity to supplement the
record.'” (citation omitted)). Accordingly, on June
19, 2019, the court notified the parties that it would
convert Defendant's motion to dismiss into a motion for
summary judgment. [Docket No. 19.] The court ordered
Plaintiff to file supplemental evidence to provide
evidentiary support for the factual allegations in his
opposition, or any other facts supporting his position.
Id. Plaintiff timely submitted a declaration from
his counsel in support of his positions.
to Plaintiffs counsel David Waggoner, Plaintiff was
previously represented by a different attorney, Alexx
Campbell, at Homeless Action Center. Waggoner Decl. ¶
10. Campbell had represented Plaintiff at his hearing before
the ALJ, who issued a partially favorable decision.
Id. ¶ 9; see also Voegele Decl., Ex.
1. Campbell then appealed the decision to the Appeals Council
on Plaintiff s behalf. Id. ¶ 10. The Appeals
Counsel issued a decision upholding the ALJ's decision on
September 21, 2018. Id. ¶ 11; see also
Voegele Decl., Ex. 2.
resigned from his position at HAC on October 2, 2018.
Waggoner Decl. ¶ 12. He sent an email with transfer
notes regarding Plaintiffs case that same day. Id.
¶¶ 12, 14. Waggoner was then assigned to Plaintiffs
case. Id. ¶ 13. According to Waggoner, the case
transfer notes indicated that the next step for Plaintiffs
case was to write the brief requesting review of the
ALJ's decision by the Appeals Council. Id.
¶¶ 13-14. Waggoner was traveling internationally at
the time that Plaintiff s case was assigned to him. Waggoner
Decl. ¶ 15. While traveling, Waggoner worked remotely
using a laptop, but he did not have access to Plaintiffs
electronic or paper file, and so he only had the information
about Plaintiffs case that Campbell sent in the transfer
notes email. Id. ¶¶ 15-20. Waggoner
returned to his office on November 28, 2018 and at that point
reviewed the September 21, 2018 Appeals Council's denial
of the appeal that Campbell had filed. Id. ¶
23. Waggoner filed the complaint in this case that same day.
Id. ¶ 25.
declaration is cryptic with respect to key details. For
example, he only vaguely explains what information regarding
case-related tasks and deadlines was contained in
Campbell's case transfer email, and he does not state
whether Campbell's information was correct. He also does not
state what further information he would have learned if he
had access to the electronic or paper file while he was out
of the office. Waggoner's declaration indicates that he
was away from the office for approximately two months
(between late September and late November 2018). Although
Waggoner states that he was not expecting to receive any
time-sensitive mail while he was away, he does not explain
what arrangements were made, if any, to have another person
check his files for him during a significant two-month
absence to make sure he did not miss any deadlines on behalf
of his clients.
states that he “believes” the September 21, 2018
denial letter from the Appeals Council arrived at the HAC
office “between the time it was mailed and after Mr.
Campbell's [October 2, 2018] resignation.” Waggoner
Decl. at ¶ 26. The only support for this assertion is
his belief that “[i]f Mr. Campbell had received the
denial letter before he resigned, he would have communicated
that fact to me and the corresponding time sensitive nature
regarding an appeal.” Id. at ¶ 27.