United States District Court, D. Montana, Billings Division
AUDREY D. SCOTT, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
Pending is Defendant Commissioner of Social Security's ("Commissioner") Motion to Dismiss (ECF 10) Plaintiff Audrey D. Scott's ("Scott") Complaint for lack of subject matter jurisdiction. For the reasons stated below, the Court recommends that the Commissioner's motion be granted and that this case be dismissed.
On October 19, 2011, an Administrative Law Judge ("ALJ") issued a fully favorable decision finding Scott to be disabled beginning January 1, 2003. Declaration of Robert Weigel (ECF 11-1) at ¶3(a). The decision also reopened a prior application filed on July 17, 2006, and based benefit payments on that application. Id. A copy of the decision was mailed to Scott on October 19, 2011. Not. of Decision (ECF 11-1 at 5). Scott requested review of this decision, and on July 5, 2013, the Appeals Council mailed notice to Scott of its action denying her request for review, and of her right to commence a civil action within 60 days. Weigel Dec. (ECF 11-1) at ¶3(a); Not. of Appeals Council Action (ECF 11-1 at 15).
On September 5, 2013, Scott filed a document described as a "Request For An Extension Of Time To File A Civil Action" with the Office of Disability Adjudication and Review ("ODAR") in Billings, Montana. ECF 11-1 at 19-20. Her request states:
This serves as my request to file a civil action and court review. I am going to file a complaint in the United States District Court of Montana. More information is to come. I just want to ensure that my date of next appeal is protectively filed as of today' (sic) date of September 5, 2013.
ECF 11-1 at 20. The Social Security Administration did not take action on this request "because it was filed with the ODAR Hearing Office in Billings, Montana, instead of with the Appeals Council as required by 20 CFR § 404.982." Weigel Dec. (ECF 11-1) at ¶3(b). Scott filed a civil action in this Court on November 5, 2013. Id . at ¶3(c); Cmplt (ECF 3) at 1.
On February 12, 2014, the Commissioner filed the pending motion to dismiss. The Commissioner argues that Scott's complaint fails to state a claim upon which relief can be granted because it was not filed within 60 days after Scott received the Commissioner's final decision. See Deft's Mem. in Support of Mtn. to Dismiss (ECF 11) at 2, 4. To date, Scott has not responded to this motion, and the deadline for doing so has passed. See Local Rule 7.1(d)(1)(B) (providing that responses to motions to dismiss must be filed within 21 days after the motion was filed).
Initially, the Court notes that the Commissioner's motion seeks dismissal based upon lack of subject matter jurisdiction and improper venue, yet her brief argues for dismissal based upon a failure to state a claim upon which relief may be granted. Any contention that the 60day limit in 42 U.S.C. § 405(g) is jurisdictional is incorrect. The Ninth Circuit has held that "[t]he 60-day period [contained in 42 U.S.C. § 405(g)] is not jurisdictional, but instead constitutes a statute of limitations." Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (citing Mathews v. Eldridge, 424 U.S. 319, 328 n. 9 (1976); Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975)). The only jurisdictional requirement of 42 U.S.C. § 405(g) is that there be a final decision of the Commissioner. Id. at 1277. Therefore, Scott's complaint should not be dismissed for want of subject matter jurisdiction. See Vernon, 811 F.2d at 1279 (finding that "[t]he district court erred in holding that the 60day period in § 405(g) is jurisdictional"). This does not end the Court's inquiry, however, as the crux of the Commissioner's argument is that Scott's complaint should be dismissed because it was not timely filed.
Judicial review of the Commissioner's final decisions is governed by 42 U.S.C. §§ 405(g) and (h), which provide, in relevant part:
(g) Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party... 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...
(h) 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 shall be reviewed by any person, tribunal, or governmental agency except as herein provided...
The Commissioner has interpreted "mailing" as the date of receipt by the claimant of the Appeals Council's notice of denial of request for review. 20 C.F.R. § 422.210(c). The date of receipt is presumed to be five days after the date of the notice, absent a contrary showing made to the Appeals Council. 20 C.F.R. §§ 404.901, 422.210(c). A party may obtain an extension of time to file a Federal court action by filing a request with the Appeals Council demonstrating good cause for the extension. 20 C.F.R. § 404.982. The substance of ...