*Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-40930

 

TURNER MYER, III,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

 

Appeal from the United States District Court for the

Eastern District of Texas, Beaumont

(1:94-CV-567)

 

September 17, 1996

Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.*

PER CURIAM:

This social security disability benefits case has a convoluted

history.

On September 22, 1994, plaintiff-appellant Turner Myer, III

(Myer), a prisoner in the Texas Department of Corrections, filed

this suit pro se and in forma pauperis in the United States
2

District Court for the Eastern District of Texas seeking to review

the decision of the Social Security Administration (SSA) denying

his claim for disability benefits. Process was not issued, and the

SSA was not served. On October 27, 1994, the magistrate judge

issued a report and recommendation recommending that the suit be

dismissed because in earlier proceedings in the United States

District Court for the Southern District of Texas, Houston

division, the court had dismissed as frivolous a suit filed in 1991

by Myer, had imposed a sanction of $25 on Myer, and had ordered

that he be barred from filing further suits until the sanction was

paid. The magistrate judge noted that Myer had not paid the

sanction. He also noted that Myer had filed at least seven other

law suits in the United States District Court for the Eastern

District of Texas. Myer objected to the magistrate judge’s report,

but the district judge overruled the objections, adopted the report

and recommendation, and dismissed the suit on December 14, 1994.

Myer appealed to this Court. In an unpublished opinion issued May

17, 1995, this Court vacated the district court’s order of

dismissal and remanded the case for further proceedings. We

concluded that the Southern District of Texas order by its terms

barred Myer only from filing “any civil rights complaint” in forma

pauperis until the $25 sanction was paid. We further held that

Myer’s suit challenging the denial of his application for social

security benefits was not a civil rights complaint within the terms
3

of the order of the district court for the Southern District of

Texas, and hence was not barred thereby. Myer v. Shalala, 94-41354

(5th Cir. May 17, 1995) (unpublished).

Following our remand, defendant-appellee Commissioner of the

Social Security Administration (Commissioner) on October 5, 1995,

filed her motion to dismiss on the basis that Myer’s complaint was

not filed within sixty days after the final decision of the

Secretary of Health and Human Services on Myer’s application for

social security disability benefits, as required by 42 U.S.C. §

405(g). Supporting affidavits reflected that Myer initially

applied for social security disability benefits in March 1992; the

claim for benefits was administratively denied, and at Myer’s

request the denial was reviewed by an administrative law judge, who

held a hearing on October 29, 1993, and on January 26, 1994, issued

a decision that Myer was not entitled to disability benefits under

Title II of the Social Security Act. Myer appealed to the Appeals

Council, which in a decision issued March 25, 1994, affirmed the

denial of benefits. The decision was mailed to Myer at his address

with the Texas Department of Corrections on March 25, 1994. This

communication also states that if Myer desired judicial review

“. . . you may commence a civil action by filing a

complaint in the United States District Court for the

judicial district in which you reside within sixty (60)

days from the date of the receipt of this letter. It

will be presumed that this letter is received within five

(5) days after the date shown above unless a reasonable

showing to the contrary is made. . . . 
1Pursuant to 20 C.F.R. § 422.210(c) (1996), it is presumed,

absent a reasonable showing to the contrary, that the decision was

received five days after the notice thereof. See Flores v.

Sullivan, 945 F.2d 109, 111 (5th Cir. 1991). Here there is no

evidence or allegation that the March 25, 1994, notice was not

received by March 30, 1994.

4

If you cannot file your complaint within 60 days, you may

ask the Appeals Council to extend the time in which you

may begin a civil action. However, the Council will only

extend the time if you provide a good reason for not

meeting the deadline. Your reason(s) must be set forth

clearly in your request.”

The Commissioner’s motion reflects that no extension of the sixtyday period had been sought or granted.

On October 10, 1995, Myer filed his response to the

Commissioner’s motion. The response does not deny that Myer timely

received the decision of the Appeals Council; nor does it assert

that he misunderstood its provisions.1 However, Myer’s response

does assert that he had filed suits challenging the SSA’s denial of

his application for benefits in the United States District Court

for the Southern District of Texas, Galveston division, “in the

month of April 1994" and in the United States District Court for

the Southern District of Texas, Houston division, in “May of 1994,"

but that each of those courts “had refuse[d] to accept my

complaint” because of his outstanding $25 sanction. Myer does not

say when either of the suits was refused, dismissed, or returned,

or when he learned of that. No documentation was attached to this

response except a receipt from the United States District Court for

the Southern District of Texas in Houston dated March 24, 1995,
5

reflecting receipt from Myer of $25 as payment of “sanctions.”

There is no allegation, nor anything in the record to indicate,

that the SSA was even aware of these suits prior to Myer’s October

10, 1995, response.

The Commissioner filed no rejoinder to Myer’s response.

Nothing further transpired in the case until the district court on

October 20, 1995, issued its order and judgment granting the

Commissioner’s motion and dismissing the suit. The order does not

otherwise state any reasons or give any explanation; nor does it

address Myer’s response to the Commissioner’s motion.

Myer brings this appeal, and in substance argues that he

timely filed suit challenging the Commissioner’s decision by his

April 1994 suit filed in the Galveston federal district court——and

perhaps also by his May 1994 suit filed in the Houston district

court——and that since these suits were erroneously refused by those

courts because of his failure to pay the sanction, that he either

met or ought to be excused from the sixty-day limitations period of

section 405(g).

In Bowen v. City of New York, 106 S.Ct. 2022 (1986), the

Supreme Court held that section 405(g) was a limitations provision

to which equitable tolling would be applicable. The Court

recognized that because the SSA was authorized by section 405(g)

to extend the sixty-day period “in most cases the Secretary will

make the determination whether it is proper to extend the period
6

within which review must be sought. Cases may arise where the

equities of tolling the limitations period were ‘so great that

deference to the agency’s judgment is inappropriate.’” Id. at

2030. The Bowen Court went on to hold that under the facts of that

case the district court, and the court of appeals, properly applied

equitable tolling, even though the Secretary had not done so,

because, among other things, “‘the Government’s secretive conduct

prevents plaintiffs of knowing of a violation of rights.’” Id. at

2031. The Court there was referring to secretive conduct of the

SSA. No such conduct, or other relevant fault, on the part of the

SSA is asserted here.

If Myer timely filed a complaint in the Galveston federal

court and/or in the Houston federal court, and if these complaints

properly sought review of the SSA’s March 25, 1994, decision

denying Myer’s application for social security benefits, and if the

suits were wrongly dismissed because of Myer’s failure to pay the

earlier sanctions, these facts would argue in favor of equitable

tolling. No one has ever asserted that these facts alleged by Myer

in his response are not actually correct; but, on the other hand,

Myer has provided no supporting documentation and has not made

reference to any dates or cause numbers or the like. Then, again,

the pro se Myer was not alerted to the need to do so.

On the other side of the ledger is the fact that Myer did not

at any time seek to get an extension of the sixty-day period from
7

the SSA, as the March 25, 1994, notice to him specifically advised

him he could do. This certainly counts against equitable tolling.

See Flores v. Sullivan, 945 F.2d 109 (5th Cir. 1991). Although

Myer was a prisoner and apparently without funds, this record

strongly suggests that he is no stranger to the courts or to

administrative proceedings. If we assume that both of Myer’s prior

suits had been dismissed or returned to him by, for example, June

15, 1994, the question arises why Myer did not then either seek an

extension from the SSA or, within sixty days of the last suit’s

being dismissed or returned to him, file the instant suit. The

instant suit was not filed until September 22, 1994, and it is

dated September 19, 1994. However, we do not know from this record

when either of Myer’s prior suits was returned to him.

Conceivably, the last to have been returned to him may have been

returned (or he may have first learned of that) less than sixty

days before September 22, 1994 (or September 19, 1994). If that

were the situation, equitable tolling would likely be mandated

(provided the prior suits were such as would, apart from timing,

meet the requirements of section 405(g)). It might also be

mandated if, though the last suit was dismissed or returned to Myer

more than sixty days before September 22, 1994, there was in

connection with the return or dismissal some order (or the like)

that Myer would be sanctioned if he attempted to file another such

suit. There may also be other considerations that would argue for
2The Commissioner’s motion to dismiss and its position on this

appeal constitute an inferential denial of equitable tolling. See

Barrs v. Sullivan, 906 F.2d 120 (5th Cir. 1990).

8

equitable tolling even though the last suit was returned more than

sixty days prior to the filing of the instant suit. On the other

hand, when Myer had or could have had the ability to pay the $25

sanction (the validity of which is not challenged) may also be

relevant.

Under all the circumstances, we conclude that the district

court acted precipitously in its dismissal of Myer’s complaint. On

remand, the court should afford Myer the opportunity of providing

some documentation concerning his asserted two prior suits, their

nature, and the nature of the action taken thereon, including

showing when, as to each, he received notice that the suit was

dismissed or returned. If the last such notice was more than sixty

days before September 19 or September 24, 1994, Myer should be

afforded an opportunity to explain why he did not sooner file the

instant suit or seek an extension of time from the SSA. With all

the facts before it, the district court can then make an informed

decision as to whether the circumstances are so strongly in favor

of equitable tolling that deference to the Commissioner’s judgment

not to recognize it in this instance is appropriate.2

Accordingly, the judgment of the district court is vacated and

the cause is remanded for further proceedings not inconsistent

herewith.
9

VACATED and REMANDED