United States District Court, D. Colorado
E. Blackburn United States District Judge.
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],
filed July 10, 2017; and (2) plaintiff's Motion To Amend
Complaint [#32], filed September 1, 2017. Having reviewed the
motion to amend,  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.
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.”).
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. 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).
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. 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.
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.
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. 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.) 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).
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.
although the proposed amended complaint suggests it is
unclear why the ALJ disqualified plaintiff's mother,
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); 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).
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.)
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