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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ABDULMALIK HUSSAIN ALI,

Plaintiff,

Civil Action No. 09-CV-12850

vs. United States District Judge Paul D. Borman

Magistrate Judge Mona K. Majzoub

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

______________________________/

OPINION AND ORDER

(1) DENYING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION (DKT. NO. 20); AND

(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

GRANTING DEFENDANT’S MOTION TO DISMISS/

FOR SUMMARY JUDGMENT (DKT. NO. 19)

Before the Court are Plaintiff Abdulmalik Hussain Ali’s Objections (Dkt. No. 20) to

Magistrate Judge Mona K. Majzoub’s March 4, 2010 Report and Recommendation (Dkt. No. 19).

The Commissioner filed a response to Plaintiff’s Objections on March 31, 2010. (Dkt. No. 21.) The

Court now reviews the Objections, Report and Recommendation, and pertinent parts of the record

de novo pursuant to 28 U.S.C. § 636(b).

I. BACKGROUND

This case involves Plaintiff’s failure to timely file his civil action in this Court seeking

review of the final decision of the Commissioner of Social Security denying his application for
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Disability Insurance Benefits and Supplemental Security Income. On March 29 2007, the ALJ

denied Plaintiff’s application for benefits. (Dkt. No. 12-4.) The Appeals Council denied Plaintiff’s

request for review of the ALJ’s decision in a Notice dated October 17, 2008. (Dkt. No. 12-5.) On

December 17, 2008, Plaintiff requested an extension of time to file his Complaint in this Court,

stating that he was unable to secure counsel. (Dkt. No. 12-6.) The Appeals Council granted

Plaintiff’s request for an extension of time in a Notice dated April 21, 2009, granting Plaintiff 30

additional days from the date on which he received the Notice (presumed to be 5 days after the date

of the letter) in which to file his claim in this Court, giving Plaintiff until May 26, 2009 to file his

Complaint in this Court. (Dkt. No. 12-7.) On May 6, 2009, Plaintiff filed another request for

extension of time to file in this Court, stating that he could not comply within the 30 days granted

in the Appeals Council’s April 21, 2009 Notice. (Dkt. No. 12-9.) On August 21, 2009, the Appeals

Council denied Plaintiff’s second request for an extension of time. (Dkt. No. 12-10.) On July 20,

2009, nearly two months beyond the May 26, 2009 extended deadline granted by the Appeals

Council in its April 21, 2009 Notice, Plaintiff filed the instant Complaint in this Court.

II. ANALYSIS

The Court agrees with the Magistrate Judge’s conclusion that this Court lacks jurisdiction

over Plaintiff’s untimely filed Complaint. 42 U.S.C. § 405(g) states that a civil action seeking

judicial review of the final order of the Commissioner must be filed within 60 days after mailing of

the notice of the Commissioner’s final decision. This sixty day statutory limitation period can be

extended only “where the equities in favor of tolling the limitations period are so great that

deference to the agency’s judgment is inappropriate.” Bowen v. City of New York, 476 U.S. 467, 480

(1986) (quoting Matthews v. Eldridge, 42 U.S. 319, 330 (1976)). It is well settled that the 60-day
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time limitations of section 405 are jurisdictional, and that if the limitation period is not satisfied the

case must be dismissed for lack of subject matter jurisdiction. Whipp v. Weinberger, 505 F.2d 800,

801 (6th Cir. 1974). “If the request for review has not been filed within sixty days, the right

provided by the statute cease[s] to exist, and the present action [is] properly dismissed.” Id. at 801.

The ability of the Appeals Council to grant extensions of time serves to mitigate any harshness that

might result from a strict application of this rule. Id. See C.F.R. § 404.954.

In the instant matter, Plaintiff was granted an extension of time by the Appeals Council and

still failed to timely file his claim in this Court. Plaintiff does not contest the time frames set forth

in the Commissioner’s motion to dismiss and does not deny that he has not timely filed his action

in this Court. Rather, Plaintiff continues to offer the same reasons which he has put forth since he

originally sought an extension of time on December 17, 2008, i.e. that he has been unable to secure

counsel and that his medications interfere with his sleep and his ability to meet the specified time

frames. (Pl.’s Obj. 1.) These purported justifications do not meet the standards for good cause set

forth in 20 C.F.R. §404.982 and, in any event, are belied by the fact that Plaintiff was able to file

requests for extensions of time within the very time frame that he claims he was unable to file his

case in this Court. As the Magistrate Judge summarized:

Plaintiff had notice of the deadlines to file his civil action and filed both requests for

extension prior to the deadlines. Ultimately, Plaintiff had over seven months from

the Appeals Council’s denial of his Request for Review to timely file his civil action

and locate counsel. Plaintiff finally filed his action without the aid of counsel and

he could have timely done so prior to the May 26, 2009 deadline. 

(Report and Recommendation, p. 4.) This Court agrees with the Magistrate Judge’s ruling.

III. CONCLUSION

For the foregoing reasons, the Court ADOPTS the Magistrate Judge’s Report and
1 Because the parties presented matters outside the pleadings, Magistrate Judge Majzoub properly

reviewed the motion as one for summary judgment under Fed. R. Civ. P. 56(b). (Report and

Recommendation, p.3.) 

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Recommendation (Dkt. No. 19), DENIES Plaintiff’s Objections (Dkt. No. 20) and GRANTS

Defendant’s Motion to Dismiss/For Summary Judgment (Dkt. No. 12).1 

IT IS SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: April 28, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

April 28, 2010.

S/Denise Goodine 

Case Manager