Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 1

103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social

Security matters were transferred to the Commissioner of Social Security.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

PATRICIA A. JACKSON, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv629-CSC

) (WO)

JO ANNE B. BARNHART )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

The pro se plaintiff Patricia Jackson (“Jackson”) filed this lawsuit to review a final

judgment by Defendant Jo Anne Barnhart, Commissioner of Social Security, in which she

determined that Jackson is not “disabled” and therefore, not entitled to supplemental security

income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq..

Her application was denied at the initial administrative level. Jackson then requested and

received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the

ALJ also denied the claim. On April 21, 2006, the Appeals Council rejected a subsequent

request for review. The ALJ’s decision consequently became the final decision of the

Commissioner of Social Security (“Commissioner”). See Chester v. Bowen, 792 F.2d 129, 1

131 (11 Cir. 1986). th

On July 18, 2006, Jackson filed a complaint in this court challenging the

Case 2:06-cv-00629-CSC Document 15 Filed 12/12/06 Page 1 of 5
 The case is now before the court for review pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3). 2

2

Commissioner’s decision. (Doc. # 1.) On October 19, 2006, the defendant filed a motion

to dismiss, asserting that Jackson’s complaint was not timely filed. (Doc. # 9). On October

26, 2006, Jackson filed a response and attached evidentiary materials to support her argument

that her complaint was timely filed. (Doc. # 14). Pursuant to 28 U.S.C. § 636(c)(1) and

M.D. Ala. LR 73.1, the parties have consented to the United States Magistrate Judge

conducting all proceedings in this case and ordering the entry of final judgment. 

Now pending before the court is the defendant’s motion to dismiss. (Doc. # 9). Upon

review of the defendant’s motion, Jackson’s response, the briefs in support of and in

opposition to the motion to dismiss and the attached evidentiary materials, the court

concludes that the defendant’s motion to dismiss is due to be granted.2

DISCUSSION

The Commissioner has filed a motion to dismiss alleging that the plaintiff failed to

file her complaint in this court in a timely manner. The Commissioner argues that this case

is due to be dismissed because Jackson failed to file her complaint in this court within 60

days after the date she presumably received notice from the Appeals Council that her request

for review of the administrative law judge’s decision was denied. In support of her position,

the defendant relies on the Appeals Council’s denial of Jackson’s request for review dated

April 21, 2006. In that letter, the Appeals Council advised Jackson to file her complaint in

the United States District Court for the judicial district in which she lives within sixty days

Case 2:06-cv-00629-CSC Document 15 Filed 12/12/06 Page 2 of 5
3

from the date of her receipt of the letter. The Commissioner informed Jackson that she

would assume that Jackson “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.” (Attach. to Doc. # 10, Def’s Ex. #

1). Presuming that she received the Appeals Council’s notice five days after April 16, 2006,

Jackson should have filed her complaint on or before June 30, 2006. She filed her complaint

in this court on July 18, 2006. 

In her response, Jackson asserts that she filed her complaint in the Circuit Court for

Montgomery County, Alabama on June 20, 2006. She argues that because she filed an action

in state court within 60 days of her receipt of the notice from the Appeals Council, her

complaint should be considered timely filed. She contends that she filed in this court as soon

as she was notified by the state court that she had filed in the wrong court. In essence, she

is arguing that her untimely filing should be equitably tolled because her complaint was

timely filed in state court.

In this circuit, the sixty day time period prescribed by 42 U.S.C. § 405(g) is not

jurisdictional, but is rather a statute of limitation. Shows v. Dep’t of Health & Human Servs.,

740 F.2d 891, 891-92 (11 Cir. 1984). Consequently, the limitation period is subject to th

equitable tolling in certain circumstances. The plaintiff urges the court to equitably toll the

limitation period during the time her complaint was pending in state court. In Burnett v. New

York Central Railroad Co., the Supreme Court held that “when a plaintiff begins a timely

FELA action in a state court having jurisdiction, . . . and plaintiff’s case is dismissed for

improper venue, the FELA limitation period is tolled during the pendency of the state suit.”

Case 2:06-cv-00629-CSC Document 15 Filed 12/12/06 Page 3 of 5
4

380 U.S. 424, 434-35 (1965). The Court reached this conclusion after determining that

“Congress did not intend the statute of limitations to bar a plaintiff who brings a timely

FELA action in a state court of competent jurisdiction.” Id. at 432. Consequently, the sole

determinative issue for this court is whether the plaintiff’s filing in the Circuit Court of

Montgomery Court tolled the limitation period contained within 42 U.S.C. § 405(g) while

that action was pending in state court. The court concludes that the limitation period was not

tolled because the state action was not filed in a court of competent jurisdiction with respect

to this type of case.

Title 42 U.S.C. § 405 provides, in relevant part:

(g) Judicial review

Any individual, after any final decision of the Commissioner of Social Security

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 of Social Security

may allow. Such action shall be brought in the district court of the United

States for the judicial district in which the plaintiff resides, or has his

principal place of business, or, if he does not reside or have his principal

place of business within any such judicial district, in the United States

District Court for the District of Columbia. . . .

(h) Finality of Commissioner’s decision

The findings and decision of the Commissioner of Social Security after a

hearing shall be binding upon all individuals who were parties to such hearing.

No findings of fact or decision of the Commissioner of Social Security

shall be reviewed by any person, tribunal, or governmental agency except

as herein provided. No action against the United States, the Commissioner

of Social Security, 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.

Case 2:06-cv-00629-CSC Document 15 Filed 12/12/06 Page 4 of 5
42 U.S.C. § 405(g) and (h) (emphasis added.)

The language of 42 U.S.C. § 405(g) clearly establishes jurisdiction in federal district

courts. Moreover, this jurisdiction is exclusively within the purview of the federal courts.

42 U.S.C. § 405(h). These explicit statutory directives “dictate[] the conclusion that federal

courts have exclusion jurisdiction” over the plaintiff’s claim. See Hairston v. Travelers Cas.

& Surety Co., 232 F.3d 1348, 1352 (11 Cir. 2000). Because federal courts have exclusive th

jurisdiction over her claim, the state court did not have concurrent jurisdiction over Jackson’s

claim. Jackson’s filing in state court, therefore, did not toll the limitation period because

unlike concurrent FELA jurisdiction in Burnett, the state court did not have jurisdiction to

hear her Social Security claim. Id. at 1353. Thus, the court concludes that Jackson’s

complaint was not timely filed and the defendant’s motion to dismiss is due to be granted.

CONCLUSION

Accordingly, it is

ORDERED that the defendant’s motion to dismiss be and is hereby GRANTED and

that this case be and is hereby DISMISSED with prejudice.

Done this 12 day of December, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00629-CSC Document 15 Filed 12/12/06 Page 5 of 5