United States District Court, W.D. Louisiana, Monroe Division
For William Lambert, on behalf of on behalf of, Susan Ann Barnes, Plaintiff: Alex W Rankin, LEAD ATTORNEY, Rankin Yeldell et al, Bastrop, LA.
For U S Commissioner Social Security Administration, Defendant: Katherine W Vincent, LEAD ATTORNEY, U S Attorneys Office (LAF), Lafayette, LA.
REPORT AND RECOMMENDATION
KAREN L. HAYES, UNITED STATES MAGISTRATE JUDGE.
Before the undersigned magistrate judge, on reference from the District Court, is a motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), or alternatively, motion for summary judgment, Fed.R.Civ.P. 56, [doc. # 5], filed by defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration. For reasons assigned below, it is recommended that the motion to dismiss be DENIED, but that the motion for summary judgment be GRANTED, and that plaintiff's complaint be DISMISSED, with prejudice, as time-barred.
Background & Procedural History
On March 3, 2008, Susan Ann Barnes, plaintiff's deceased mother, protectively filed an application for disability insurance benefits with the Social Security Administration (SSA). The state agency denied her application at the initial stage of the administrative process. Thereafter, Barnes requested and received a January 29, 2009, hearing before an Administrative Law Judge (" ALJ"). However, in a June 15, 2009, written decision, the ALJ determined that Barnes was not disabled under the Social Security Act for the period at issue (November 1, 2006, through December 31, 2007). Barnes appealed the adverse decision to the Appeals Council. On April 1, 2011, however, the Appeals Council denied her request for review.
On May 25, 2011, Barnes sought review of the Commissioner's unfavorable decision before this court. Barnes v. Commissioner, Social Security Administration, Civ. Action No. 11-0785. On January 9, 2012, pursuant to an unopposed motion filed by the Commissioner, the District Court reversed and remanded the case to the Commissioner for further proceedings in accordance with the fourth sentence of 42 U.S.C. § 405(g). Upon remand from the District Court, the Appeals Council vacated the ALJ's June 15, 2009, decision and remanded the case for further proceedings. Tragically, Barnes passed away on December 14, 2012. Thus, one week later, Barnes' surviving son, William Lambert, substituted as party claimant on her behalf.
In an August 16, 2013, written decision, the ALJ again denied the claimant's application for disability insurance benefits. The Notice of Decision informed Lambert that he had 30 days from receipt of the Notice to file written exceptions with the Appeals Council. Alternatively, even if plaintiff did not file written exceptions, the Appeals Council could elect to review the ALJ's decision on its own. If it did so, however, it would notify plaintiff within 60 days from the date of the Notice.
The Notice further explained that if plaintiff did not file written exceptions and the Appeals Council did not decide to review the ALJ's decision on its own, then the ALJ's decision would become final on the 61st day following the date of the Notice. Once the ALJ's decision became final, Lambert had 60 days to file a new civil action in district court. The Notice cautioned, however, that Lambert would lose his right to court review if he did not file a civil action during the 60 day period commencing with the date that the ALJ's decision became final. The Notice summed up that if plaintiff thought the ALJ's decision was wrong, he " should file . . . exceptions within 30 days or file a new civil action between the 61st and 121st days afer the date of [the Notice]."
Plaintiff, however, did not comply with either deadline. Instead, he waited until October 4, 2013, i.e., 49 days after the Notice of Decision, before filing written exceptions to the ALJ's decision. He also waited until June 13, 2014, i.e. 301 days after the Notice of Decision before filing the instant civil action. On September 22, 2014, the Appeals Council notified plaintiff that because he neither timely filed written exceptions, nor asked for more time to do so within 30 days from receipt of the ALJ's decision, the ALJ's decision was the Commissioner's final decision following the District Court remand.
On November 13, 2014, the Commissioner filed the instant motion to dismiss, or in the alternative, motion for summary judgment, urging dismissal of plaintiff's complaint on the grounds that he failed to timely file suit. Plaintiff did not file a response to the instant motion(s). Thus, it is deemed unopposed. (Notice of Motion Setting [doc. # 6]). The matter is ripe.
Law and Analysis
I. Motion to Dismiss vs. Motion for Summary Judgment
The United States, as sovereign, is immune from suit except in the manner and degree sovereign immunity is waived. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). In the absence of an express congressional waiver of immunity, an action against the United States or its agencies does not fall within the judicial power of the federal courts. See Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d ...