United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
E. KNOWLES, III, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion to Dismiss. [Doc. #11].
Plaintiff has filed no opposition to the motion in accordance
with the local rules of this Court. For the following
reasons, IT IS RECOMMENDED that the Commissioner's motion
to dismiss be GRANTED.
filed an application for disability insurance benefits, which
was denied at the initial and reconsideration level. An
Administrative Law Judge (“ALJ”) then denied
plaintiff's application on April 3, 2017. [Doc. #11-2 at
pp. 8-24]. On November 13, 2017, the Appeals Council denied
plaintiff's request for review, which rendered the
ALJ's decision the “final decision” of the
Commissioner, giving rise to a 60-day deadline in which to
seek judicial review. [Id. at pp. 5-7]. Plaintiff
filed the lawsuit action on January 19, 2018, 67 days after
the Appeals Council's decision.
Law and Analysis
The 60-Day Deadline
well-settled law that “[t]he United States, as
sovereign, ‘is immune from suit save as it consents to
be sued … and the terms of its consent to be sued in
any court define that court's jurisdiction to entertain
the suit.'” Lehman v. Nakshian, 453 U.S.
156, 160 (1981) (quoting United States v. Testan,
424 U.S. 392, 399 (1976) and United States v.
Sherwood, 312 U.S. 584, 586-87 (1941)); see also
United States v. Mitchell, 445 U.S. 535, 538 (1980);
Smith v. Booth, 823 F.2d 94, 96 (5th Cir.1987).
Congress may prescribe the procedures and conditions under
which judicial review of administrative orders may be
obtained. Tacoma v. Taxpayers of Tacoma, 357 U.S.
320, 336 (1958). Judicial review of final decisions on claims
arising under Title XVI of the Social Security Act is
provided for, and limited by, Sections 205(g) and (h) of said
Act, 42 U.S.C. §§ 405(g), (h). The remedy provided
by section 205(g) is exclusive. The relevant provisions of
Sections 205(g) and (h) read as follows:
(g) Any individual, after any final decision of the
Commissioner made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner may
allow . . .
(h) The findings and decision of the Commissioner after a
hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or decision
of the Commissioner shall be reviewed by any person,
tribunal, or governmental agency except as herein
provided. No. action against the United States, the
Commissioner, or any officer or employee thereof shall be
brought under section 1331 or 1346 of Title 28 to recover on
any claim arising under this subchapter.
48 U.S.C. §§205(g), (h) (emphasis added).
Accordingly, the only civil action permitted on any claim
arising under Title II or Title XVI of the Social Security
Act is an action to review the “final decision of the
Commissioner made after a hearing” and such action must
be “commenced within sixty days after the mailing to
[the party bringing the action] of notice of such decision or
within such further time as the Commissioner may allow."
Commissioner, by regulations published December 9, 1976, in
the Federal Register, 41 F.R. 53792, 20 C.F.R. §
422.210(c), has interpreted “mailing” as the date
of receipt by the individual of the Appeals Council's
notice of denial of a request for review or of the Appeals
Council's decision. See 20 C.F.R. §
404.981. There is a presumption that the claimant receives
the notice five days after the date on the notice, unless the
claimant makes a reasonable showing to the contrary to the
Appeals Council. 20 C.F.R. §§ 404.901, 422.210(c).
Here, and because plaintiff has filed no opposition to
defendant's motion, she has not made any showing to the
Appeals Council that this presumption should not apply in
this case. Moreover, plaintiff never requested an extension
of time in which to file her complaint.
60-day statute of limitations period provided by Congress in
section 205(g) of the Social Security Act serves “to
move millions of cases to speedy resolution in a bureaucracy
that processes millions of cases annually.” Bowen
v. City of New York, 476 U.S. 467, 481 (1986). The Fifth
Circuit, as well as other circuits, have repeatedly upheld
the sixty-day time limitation. See Flores v.
Sullivan, 945 F.2d 109, 111-13 (5th Cir. 1991);
Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir.
1990); McCall v. Bowen, 832 F.2d 862, 864 (5th Cir.
1987); Thibodeaux ex rel. Thibodeaux v. Bowen, 819
F.2d 76, 79 (5th Cir. 1987) (per curiam). Here, plaintiff
filed her complaint 67 days after the Appeals Council's
November 13, 2017 denial. Even accounting for the five-day
presumption, which essentially gives a claimant 65 days in
which to challenge the Commissioner's final decision
denying benefits, plaintiff failed to timely file her
complaint. Thus, plaintiff's complaint is simply