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Windish v. Berryhill

United States District Court, D. Colorado

December 4, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Robert E. Blackburn United States District Judge.

         The matters before me are (1) Defendant's Motion To Dismiss Pursuant to Fed.R.Civ.P. Rules 12(b)(1) and 12(b)(6) [#26], [1] filed July 10, 2017; and (2) plaintiff's Motion To Amend Complaint [#32], filed September 1, 2017. Having reviewed the motion to amend, [2] the Commissioner's response ([#36], filed October 13, 2017), and plaintiff's reply ([#37], filed October 27, 2017), and having considered the apposite arguments and authorities, I find and conclude that plaintiff's proposed amendment would be futile, as there is no valid reason to excuse his failure to file his appeal in the time and manner prescribed by law. Accordingly, his claims are barred by limitations and must be dismissed.

         The law is clear: “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). Where the government has consented to be sued, the terms of its consent define the boundaries of the court's jurisdiction. Id., 114 S.Ct. at 1000. See also United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”).

         As applied in this context, that proscription means that any suit seeking review of a final decision of the Commissioner must be commenced within sixty days after the mailing of notice of the right to appeal.[3] See 42 U.S.C. §§ 405(g) & 405(h). Although this deadline operates as a statute of limitations rather than a jurisdictional bar, because it is a condition of the government's waiver of sovereign immunity, it nevertheless must be strictly construed. Bowen v. City of New York, 476 U.S. 467, 478-79, 106 S.Ct. 2022, 2029-30, 90 L.Ed.2d 462 (1986); Gossett v. Barnhart, 139 Fed.Appx. 24, 25 n.1 (10th Cir. May 19, 2005), cert. denied, 126 S.Ct. 453 (2005); Miles v. Colvin, 2014 WL 2533814 at *1 (W.D. Okla. June 5, 2014).

         Plaintiff does not dispute that this appeal was filed well after the sixty-day deadline expired - some eighteen months after. In seeking leave to amend his complaint, plaintiff suggests this lapse should be excused because (1) he has a colorable constitutional claim; and/or (2) he is entitled to equitable tolling of the period of limitations.[4] The Commissioner objects that leave to amend should be denied because the proposed amendment (see Motion To Amend, Exh. A [#32-1]) does not overcome the deficiencies noted in the pending motion to dismiss. I concur.

         By his proposed amended complaint, plaintiff asserts he was denied due process because his waiver of his right to representation after the ALJ disqualified plaintiff's mother from serving as his non-attorney representative was not knowing and voluntary. Because “[c]onstitutional questions obviously are unsuited to resolution in administrative hearing procedures . . . access to the courts is essential to the decision of such questions.” Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Plaintiff's proposed amended complaint fails to assert such a colorable constitutional claim, however.

         “The core of due process is the right to notice and a meaningful opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266, 118 S.Ct. 753, 756, 139 L.Ed.2d 695 (1998). It is plain plaintiff was notified adequately of his right to be represented at the hearing, and he does not argue otherwise.[5] Plaintiff received A “Notice of Disapproved Claim” following the initial decision denying his first request for disability benefits in 2012. That notice plainly advised him of his right to be represented at the hearing. (See Commissioner Resp., Exh. 2 at 10 of 55 (“You can have a friend, lawyer, or someone else help you. There are groups that can help you find a lawyer or give you free legal services if you qualify. There are also lawyers who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal.”).) The agency form used to request a hearing before an administrative law judge informs claimants also of the right to representation and the availability of legal referral and service organizations. (See id., Exh. 1 at 8 of 17.)[6] No more is required in this circuit for notice to be considered constitutionally sufficient. See Carter v. Chater, 73 F.3d 1019, 1021 (10th Cir. 1996); Villalobos v. Colvin, 2016 WL 10588059 at *4 (D.N.M. March 29, 2016).

         Moreover, and contrary to plaintiff's arguments, he was not denied a meaningful opportunity to be heard. Plaintiff maintains ALJ's decision to disqualify his mother from acting as his representative rendered his subsequent waiver of his right to representation invalid and thus the hearing constitutionally deficient. I cannot agree.

         First, although the proposed amended complaint suggests it is unclear why the ALJ disqualified plaintiff's mother, [7] it is plain from the ALJ's opinion that he did so because she intended to testify on plaintiff's behalf. (See Commissioner Resp., Exh. 2 at 20 of 55.) Although plaintiff's suggests his mother nevertheless should not have been disqualified, the prohibition on advocate-witnesses, see Petrilli v. Drechsel, 94 F.3d 325, 330 (7th Cir. 1996), is no less vital in the administrative context than elsewhere, see, e.g., Cannon v. Apfel, 213 F.3d 970, 977-78 (7th Cir. 2000); Keys v. Berryhill, 2017 WL 4324689 at *3 (W.D.N.Y. Sept. 29, 2017); West v. Commissioner of Social Security, 2016 WL 5030380 at *1 n.3 (M.D. Fla Sept. 20, 2016). Moreover, although plaintiff faults the ALJ for failing to postpone the hearing to allow him the opportunity to secure representation, there is neither allegation nor evidence that he requested a postponement. See Social Security Administration, Office of Hearings and Appeals, Litigation Law Manual (“HALLEX”) I-2-6-52(C) (“If the claimant asks to postpone the hearing to obtain a representative . . . the ALJ will typically grant the requested postponement.”) (emphasis added);[8] Hughes ex rel. T.H. v. Astrue, 2012 WL 8281312 at *10 (S.D.Miss. March 12, 2012) (“The ALJ was not required to offer a postponement to obtain representation absent a request to do so.”), aff'd, 493 Fed.Appx. 594 (5th Cir. Oct. 12, 2012).

         To the extent plaintiff alleges a violation of his right to due process insofar as his “mental illness and lack of adequate representation also prevented him from understanding and pursuing his administrative remedies after the Appeals Council denied his request for review” (Motion To Amend, Exh. A ¶ 67 at 13), that assertion is clearly belied by both the record before me and the allegations of the proposed amended complaint. Despite his mental impairments, plaintiff successfully navigated each step of the administrative process up to an including Appeals Council review. More importantly, plaintiff does not allege that he did not understand he had a right to appeal to the district court after the Appeals Council denied his request for review, but asserts instead that he “believed his best opportunity to get the ALJ's opinion reviewed was to file a new application and request the old application be reopened, ” under the “mistaken belief that [filing a new application] would lead to a reconsideration of the ALJ's 2013 decision denying [plaintiff] benefits.” (Id., Exh. A ¶¶ 56 & 57 at 11.)

         It is thus clear plaintiff understood he had a right to appeal, even if he misinterpreted the consequences of his decision to forgo that right. Indeed, his purportedly mistaken belief could not possibly have been based on the Appeals Council's denial letter itself, which states explicitly:

You have the right to file a new application at any time, but filing a new application is not the same as appealing our action. If you disagree with our action and file a new application instead of appealing, you might lose some benefits or not qualify for any benefits. So, if you disagree with our action, you should file an appeal within 60 days.
. . . .
If you do not ask for court review, the Administrative Law Judge's decision will be a final decision that can be ...

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