1Including Docs. 2-1 and 2-2.

2Including Docs. 12-1, 12-2, 15-1 and 15-2.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

FELISA G. MYERS, *

 *

Plaintiff, *

 *

vs. * Civil Action No.04-00822-CB-B

 *

JO ANNE B. BARNHART, *

Commissioner of * 

Social Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s Motion for

Leave to File Appeal Out of Time (Doc. 2)1 and Defendant’s Motion

to Dismiss (Doc. 12).2 The motions have been referred to the

undersigned for report and recommendation pursuant to 28 U.S.C.

§ 636(b)(1)(B) and Local Rule 72.2. The undersigned has

determined that oral argument is unnecessary to resolve the

motions. See Local Rule 7.3. Upon careful consideration of the

evidence and the parties’ arguments raised in their memoranda,

the undersigned RECOMMENDS that Plaintiff’s motion for leave be

DENIED and Defendant’s motion to dismiss be GRANTED.

The relevant statute of limitations requires that a lawsuit

challenging the denial of benefits be filed “within sixty days

after the mailing to [the claimant] of notice of such decision or

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 1 of 10
2

within such further time as the Commissioner may allow. 42

U.S.C. § 405(g). Section 405(g) provides that an individual

seeking judicial review of the Secretary’s final administrative

decision is required to file such action with the court within

sixty (60) days after the mailing of notice of such decision to

him, and further establishes a rebuttable presumption that

receipt occurs "5 days after the date of such notice, unless

there is a reasonable showing to the contrary." Id. 

In the case sub judice, Administrative Law Judge B. William

Lawson (hereinafter “ALJ”), on November 6, 2003, issued an

unfavorable decision denying Plaintiff’s claim for disability

insurance benefits and supplemental security income benefits.

(Doc. 15-2 at 1-23). Plaintiff subsequently requested a review

of the ALJ decision by the Appeals Council. (Id. at 24-27). In

a Notice dated September 15, 2004, the Appeals Council denied

Plaintiff’s request and provided her with detailed information

about appealing the decision by commencing a civil action in

court. Permitting five days for mailing, receipt is presumed to

have occurred on September 20, 2004; thus, the sixty (60) day

deadline for Plaintiff to commence her civil action was November

19, 2004.

It is uncontroverted that Plaintiff’s complaint was not

“filed” with the Court until December 27, 2004, some thirty-eight

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 2 of 10
3Rodgers v. Bowen, 790 F.2d 1550, 1551 (11th Cir. 1986). As the

Eleventh Circuit noted in Rodgers, 790 F.2d at 1551 (citations omitted): “[w]e

find no expressed intent by Congress to give the word ‘commenced’ any meaning

other than that which it is given in Fed.R.Civ.P. 3. We therefore hold that an

action is commenced within the meaning of §405(g) when a complaint is filed

with the court . . . .” See also McIntosh v. Antonino, 71 F.3d 29 (1st Cir.

1995) (holding that a civil rights action was not "commenced," for limitations

purposes, by mailing copy of complaint to district court or by facsimile

transmission of incomplete copy of complaint but rather, action was

"commenced" and thus “filed,” only when clerk of court actually received the

mailed copy); Newman v. Bowen, 1986 WL 15585 (S.D. Fla. Dec. 24, 1986)

(citations omitted) (noting that Rule 5(e) provides that the filing of

pleadings and other papers with the court shall be made by filing them with

the clerk of court, and so "[p]apers and pleadings including the original

complaint are considered filed when they are placed in the possession of the

clerk of the court. . . ."); and Wiss v. Weinberger, 415 F. Supp. 293, 294

(E.D. Pa. 1976).

3

(38) days beyond the statutory limit. Plaintiff herein has not

asserted that she did not timely receive the notice from the

Appeals Council, or that the Notice somehow mislead her about her

appeal rights. Plaintiff instead asserts that because she mailed

her Complaint to the Court on November 8, 2004, which was before

the statutory deadline, her Complaint should be deemed timely

regardless of when the Complaint was actually received by the

Clerk’s Office.

A civil action is instituted only by “filing a complaint

with the Court.” Fed. R. Civ. P. 3. Specifically, Rule 3 of the

Federal Rules of Civil Procedure provides that a civil action is

“commenced” by “filing a complaint with the court[]” and this

rule governs commencement of all actions – including those

brought against the United States or an officer or agency

thereof, such as Section 205(g) of the Act.3 See Fed. R. Civ. P.

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 3 of 10
4The Lee decision was followed by the court in Manganiello v. Sec. of

H.H.S., 1983 WL 44218, *1-2 (S.D.N.Y. 1983). In Manganiello, the plaintiff

sought review of the Secretary's denial of disability benefits and mailed his

complaint on December 31, 1981 to the Court; however, the complaint was not

stamped "filed" until January 13, 1983, after the sixty (60) day limitations

period had expired. The court, citing Lee, held that the complaint had not

been timely filed because “mailing” does not constitute “filing” and as such,

dismissed the complaint.

4

3 and Adv. Comm. Notes 1 and 2. Thus, “filing . . . is not

complete until the document is delivered and received.” United

States v. Lombardo, 241 U.S. 73, 76 (1916). See also e.g.,

Cabirac v. C.I.R, 2003 WL 21790356 (E.D. Pa. June 23, 2003);

United States v. Doyle, 854 F.2d 771, 773 (5th Cir. 1988); Torras

Herreria y Construcciones, S.A. v. M/V Timur Star, 803 F.2d 215,

216 (6th Cir. 1986); Johansson v. Towson, 177 F. Supp. 729, 732-

734 (M.D. Ga. 1959). Accordingly, even assuming that Plaintiff

did indeed place her Complaint in the United States mail on

November 8, 2004, addressed to the Clerk of the Court of the

Southern District of Alabama, in Mobile, Alabama, as she claims,

such mailing did not constitute a timely filing for purposes of

42 U.S.C. § 405(g) because the filing requirement is not

satisfied by the mailing of the necessary papers to the Clerk’s

office within the allotted time. See, e.g., Lee v. Dallas County

Bd. of Educ., 578 F.2d 1177, 1178 n. 1 (5th Cir. 1978) (mailing

does not constitute filing; in order for a document to be

considered timely filed, it must have been received by the Clerk

of the Court by the deadline).4

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 4 of 10
5

Although Plaintiff’s filing was clearly untimely, the

Supreme Court has recognized that:

. . . . in construing the statute [Section 205(g)] we

must be careful not to "assume the authority to narrow

the waiver that Congress intended," . . . , or construe

the waiver "unduly restrictively." . . . . [w]hile in

most cases the Secretary will make the determination

whether it is proper to extend the period within which

review must be sought, cases may arise 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, 479-480 (1986) (citations

omitted). See also Roberts v. Shalala, 848 F. Supp. 1008, 1017

(M.D. Ga. 1994). The Supreme Court concluded that the sixty (60)

day requirement is a period of limitations subject to equitable

tolling principles because Section 205(g) is part of a statute

“that Congress designed to be ‘unusually protective’ of

claimants[]” and because “Congress has authorized the Secretary

to toll the 60-day limit, [] thus expressing its clear intention

to allow tolling in some cases.” Bowen, 476 U.S. at 480

(citations omitted). While the Secretary will usually make the

determination as to whether or not it is proper to extend the

period within which review must be sought, the sixty (60) day

rule may be tolled “where the equities in favor of tolling the

limitations period are ‘so great that deference to the agency’s

judgment is inappropriate.’” Id. (citations omitted). The Bowen

Court concluded that application of a traditional equitable

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 5 of 10
5Accord Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir.

2004). A plaintiff bears this burden because equitable tolling is an

exception to the rule of the statute of limitations, not the rule itself. See

also Pacific Harbor Capital, Inc. v. Barnett Bank, N.A., 252 F.3d 1246, 1251-

1252 (11th Cir. 2001); Irwin, 498 U.S. at 96. Placing this burden on the

plaintiff serves important social functions: “[s]tatutes of limitations are

not arbitrary obstacles to the vindication of just claims, and therefore,

should not be given grudging application. They protect important social

interests in certainty, accuracy, and repose.” Cada v. Baxter Healthcare

Corp., 920 F.2d 446, 452-453 (7th Cir. 1990).

6

tolling principle to the sixty (60) day requirement is

“‘consistent with the overall congressional purpose’ and is

‘nowhere eschewed by Congress.’” Id. (citations omitted).

In the case sub judice, equitable tolling of the sixty (60)

day limitations period is not appropriate. Federal courts toll

statutes of limitations only upon a finding of an inequitable

event that prevented timely action, and the burden of showing

that tolling is warranted rests solely upon Plaintiff’s

shoulders.5 See, e.g., Justice v. United States, 6 F.3d 1474,

1478-1480 (11th Cir. 1993). Equitable tolling has been utilized

in limited extraordinary circumstances such as where: 1) a

defendant misleads or tricks a plaintiff into allowing the

statutory period to lapse; 2) a plaintiff has no reasonable way

to discovery the wrong perpetrated against him/her; or 3) a

plaintiff timely files a technically defective pleading but in

all other respects acts with proper diligence which the statutes

were intended to insure. See, e.g., Turner v. Singletary, 46 F.

Supp. 2d 1238, 1243 (N.D. Fla. 1999); Sandvik v. United States,

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 6 of 10
7

177 F.3d 1269, 1271 (11th Cir. 1999); Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 96 (1990); Baldwin County Welcome

Center v. Brown, 466 U.S. 147, 150-151 (1984). Equitable tolling

may also be appropriate where a claimant has received inadequate

notice, where a motion for appointment of counsel is pending and

equity would justify tolling the statutory period until the

motion is acted upon, or where the court has led the plaintiff to

believe that she had done everything required of her. Baldwin,

466 U.S. at 151. Plaintiff herein has not argued for equitable

tolling, and this Court’s review of the facts in this case fails

to demonstrate any basis for such tolling. Plaintiff was told

what she must do to preserve her claim and file her appeal;

however, she did not do it and “[o]ne who fails to act diligently

cannot invoke equitable principles to excuse that lack of

diligence.” See Baldwin, 466 U.S. at 151. Moreover, despite two

Orders from this Court directing Plaintiff to respond to

Defendant’s motion to dismiss, she failed to do so. Such

inaction further supports the Court’s conclusion that Plaintiff

has failed to demonstrate any level of diligence in pursuing

and/or prosecuting her appeal.

For the reasons set forth herein and upon careful

consideration of the record and parties’ arguments, it is the

RECOMMENDATION of the undersigned that: 1) Plaintiff’s motion for

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 7 of 10
8

leave to file an out-of-time appeal be DENIED and 2) Defendant’s

motion to dismiss be GRANTED.

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 8

th day of November, 2005.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 8 of 10
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988). The procedure for challenging the

findings and recommendations of the magistrate judge is set out

in more detail in SD ALA LR 72.4 (June 1, 1997), which provides,

in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the

basis for the objection. The objecting party shall

submit to the district judge, at the time of filing

the objection, a brief setting forth the party’s

arguments that the magistrate judge’s recommendation

should be reviewed de novo and a different disposition

made. It is insufficient to submit only a copy of the

original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted

or referred to and incorporated into the brief in

support of the objection. Failure to submit a brief

in support of the objection may be deemed an

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to

a Court of Appeals; only the district judge’s order or judgment

can be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within ten (10)

days of being served with a copy of the statement of objection.

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 9 of 10
3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

/s / SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-00822-CB-B Document 16 Filed 11/09/05 Page 10 of 10