MICHAEL P. SHEA, District Judge.
The Commissioner of Social Security (the "Commissioner") moves to dismiss plaintiff Victor M. Lara Morales's ("Morales") complaint because Morales did not timely file this action, and because no circumstances warrant equitable tolling. (ECF No. 12.) As set forth below, I agree and GRANT the Commissioner's motion.
Morales received Supplemental Security Income ("SSI") benefits based on disability as a child. (See ECF No. 13 at 12.)
(Id. at 32-33 (emphasis added).) In sum, the notice specified that Morales could seek review by filing a complaint in this court 60 days after he received the notice (which the Appeals Council presumed was January 18, 2017, unless Morales showed otherwise) or Morales could seek an extension of that deadline. (Id.) The notice stated that Morales would also need to deliver copies of the complaint and the court-issued summons to the U.S. Attorney's Office for the District of Connecticut. (Id.) This notice was also provided in Spanish. (Id. at 36-37.)
Morales completed a pro se complaint form dated February 15, 2017, and subsequently sent it to the U.S. Attorney's Office for the District of Connecticut. (ECF Nos. 1, 1-1.) That complaint indicates that Morales received the Appeals Council's denial notice on the same day, February 15, 2017. (ECF No. 1 at 13.) Neither Morales's complaint nor any other document the Court might consider on a Rule 12(b)(6) motion suggests that Morales sought an extension of his time to file. The Court notes that the Commissioner submitted a declaration indicating that Morales did not seek an extension, but the Court may not and does not consider the facts asserted in that declaration in deciding this motion. (ECF No. 13 at 3-4, ¶ 3(c).)
In a letter dated June 6, 2017 from John B. Hughes, Chief of the Civil Division (the "Hughes Letter"), the U.S. Attorney's Office informed the Clerk's Office of this Court that the Office had received Morales's complaint as well as complaints in four other social security cases, and enclosed the complaints for filing. (ECF No. 1-1.) Hughes explained: "In each instance I waited to see if the matter was separately docketed but I don't believe any of these cases were ever filed. This strengthens my belief that these Complaints were intended to be
"Section 405(g) of the Social Security Act provides that a claimant may seek judicial review of a final decision of the Commissioner by commencing a civil action within 60 days after receiving notice of the decision (or within such further time as the Commissioner may allow)." Seward v. Colvin, No. 3:16-CV-301 (RNC), 2016 WL 7341700, at *2 (D. Conn. Dec. 19, 2016), appeal dismissed sub nom. Seward v. Comm'r of Soc. Sec. Admin., No. 17-509, 2017 WL 3658839 (2d Cir. June 27, 2017). The Supreme Court has held that this 60-day requirement "is not jurisdictional, but rather is a statute of limitations." See Bowen v. City of New York, 476 U.S. 467, 478 (1986) (citing Mathews v. Eldridge, 424 U.S. 319, 328 n.9 (1976); Weinberger v. Salfi, 422 U.S. 749, 764 (1975)). This limitation is a "condition on the waiver of sovereign immunity and thus must be strictly construed." Id. at 479.
Because statutes of limitations are affirmative defenses, a motion to dismiss on limitations grounds "generally is treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), as opposed to under Rule 12(b)(1)." Rodriguez ex rel. J.J.T. v. Astrue, No. 10 CIV. 9644 PAC JLC, 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011), report and recommendation adopted, No. 10 CIV. 9644 PAC JLC, 2012 WL 292382 (S.D.N.Y. Jan. 31, 2012) (citations and internal quotation marks omitted). Although often affirmative defenses are inappropriate for resolution on a motion to dismiss, "a defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the complaint." Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008).
Under Rule 12(b)(6), the Court must determine whether the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court must accept the factual allegations of the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). In addition, because Morales is pro se, the Court must "construe his pleadings liberally to raise the strongest arguments they suggest." Id. In deciding the motion, the Court must limit itself "to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference," as well as matters of which judicial notice may be taken. Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991). The Court may take notice of documents filed in the case not for the truth of the matter asserted, but simply to establish the fact of such filings. See id. at 774 (explaining that district courts may take judicial notice of filings in related litigation). The Court should grant a Rule 12(b)(6) motion to dismiss that raises a statutory limitation as an affirmative defense where "it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law." Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015) (internal quotation marks omitted) (quoting Staehr, 547 F.3d at 425 (2d Cir. 2008)).
The Commissioner moves to dismiss Morales's complaint because (i) Morales did not comply with the 60-day requirement to seek judicial review of the Commissioner's final decision, and (ii) no circumstances justify equitable tolling of that deadline. (ECF No. 12.) Morales did not file an opposition to the motion.
As discussed, § 405(g) of the Social Security Act prescribes a 60-day deadline for seeking judicial review of the Commissioner's final decision, unless the Commissioner grants an extension:
42 U.S.C. § 405(g). This remedy is exclusive. Id. § 405(h) ("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."). The Commissioner has interpreted the 60-day period as presumed to begin running 5 days "after the date of [the Appeals Council's notice of denial of request for review of the administrative law judge's decision], unless there is a reasonable showing to the contrary." 20 C.F.R. § 422.210(c) (2018).
Even when construed liberally, Morales's complaint indicates that this action was untimely filed. The Appeals Council's notice of denial attached to his complaint is dated January 13, 2017. (ECF No. 1 at 7.) Morales is thus presumed to have received the notice five days later, or on January 18, 2017. Morales's complaint nonetheless states that he received the notice on February 15, 2017. (ECF No. 1 at 3.) Morales did not assert that he sought or received an extension of the 60-day deadline from the Appeals Council. (ECF No. 1.) However, Morales's complaint was not filed until June 6, 2017-111 days after Morales claims to have received the complaint. (ECF No. 1.) Even when all ambiguities as to when Morales received the notice are construed in his favor, Morales's complaint was filed well after the 60-day deadline and was thus untimely.
Although his complaint was untimely, Morales may be entitled to review if he can show the deadline should be equitably tolled because the 60-day deadline is not jurisdictional. See Bowen v. City of New York, 476 U.S. at 480. "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Watson v. United States, 865 F.3d 123, 132 Page 7> (2d Cir. 2017) (citation omitted). Diligence means the claimant acted "as diligently as reasonably could have been expected under the circumstances." Zapata v. Colvin, No. 3:13 CV 01875 (HBF), 2014 WL 12825147, at *5 (D. Conn. Sept. 18, 2014), report and recommendation adopted, No. 3:13-CV-01875 (JAM), 2016 WL 777893 (D. Conn. Feb. 29, 2016) (citing Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir. 2003)). The Second Circuit has found extraordinary circumstances warranting tolling where the plaintiff "fails to seek judicial review in a timely manner because of mental impairment . . . or when misleading or covert action by the government or an attorney impedes a claimant from timely pursuing the correct judicial avenues." Bender v. Astrue, No. 09-CV-5738 KAM, 2010 WL 3394264, at *5 (E.D.N.Y. Aug. 23, 2010) (internal citation omitted) (citing Canales v. Sullivan, 936 F.2d 755, 758-59 (2d Cir.1991), State of N.Y. v. Sullivan, 906 F.2d 910, 917 (2d Cir. 1990)).
I find that Morales was not reasonably diligent here. When his complaint is construed to raise the best argument possible in support of equitable tolling, it shows that: (1) Morales received the Appeals Council's notice on February 15, 2017, which clearly indicated he would need to seek review by filing a civil action in this court within 60 days, in addition to sending a copy of the complaint to the U.S. Attorney's Office (ECF No. 13 at 30-33)
Morales also has not presented any extraordinary circumstances that prevented him from timely filing. First, Morales has not made any particularized allegations indicating mental impairments that might have impacted his ability to understand the appeal notice. Cf. Mulero v. Bridgeport Bd. of Educ., No. 3:07-CV-1206 (PCD), 2008 WL 2185928, at *3 (D. Conn. May 22, 2008) (observing that tolling based on mental disability requires a "particularized description").
Nor is there any evidence that the U.S. Attorney's Office misled Morales or gave ambiguous advice after receiving Morales's complaint. See Seward, 2016 WL 7341700, at *3 (finding no extraordinary circumstances where there was no allegation that claimant "was misled by the U.S. Attorney's office or the Commissioner" into untimely filing). Though this case is arguably distinguishable from Seward in the government's admission that it believed Morales's complaint was "intended to be filed
Notwithstanding my grant of the Commissioner's motion to dismiss, however, I must take issue with the Commissioner's lack of candor in its briefs. While my review of the docket indicates that the June 6, 2017 Letter was filed as "court only," the letter itself indicates that a copy was sent to the Social Security Administration's Office of the General Counsel. (ECF No. 1-1.) The Commissioner was thus put on notice of Morales's attempt to seek judicial review around February 15, 2017. But the Commissioner's briefs and supporting declaration nowhere discuss this attempt or the June 6, 2017 letter, and at times they imply that Morales himself filed the complaint on June 6, 2017. (ECF No. 12 at 2 ("On June 6, 2017, almost six months after the Appeals Council's January 13, 2017 notice, and almost three months after the deadline to file a complaint, Plaintiff commenced this action."); id. at 5 ("[T]he CM/ECF system shows that Plaintiff did not file his civil action until June 6, 2018, almost three months after the statutory deadline); ECF No. 13.) Although the Court gives the Commissioner the benefit of the doubt in this instance, the Commissioner is cautioned to exercise greater care to ensure that its briefs accurately set forth the relevant facts going forward. This is important in all cases, of course, but it is crucial when dealing with unrepresented parties.
Because Morales's complaint was untimely and no circumstances warrant equitable tolling, I GRANT the Commissioner's motion to dismiss. (ECF No. 12.) The case is therefore DISMISSED. The Clerk is directed to close this case.
IT IS SO ORDERED.
