United States District Court, D. Colorado
ORDER DISMISSING APPEAL FOR LACK OF
E. Blackburn United States District Judge
matter before me is Defendant's Motion To Dismiss
Pursuant to Federal Rules of Civil Procedure
12(b)(6) [#11],  filed May 22, 2018. Plaintiff has
submitted a response to the motion ([#12], filed June 4,
2018), and the Deputy Commissioner has filed a reply ([#15],
filed June 29, 2018). Having reviewed the motion, response,
and reply and having considered the apposite arguments and
authorities, I find and conclude that plaintiff failed to
file his appeal in the time and manner prescribed by law, and
therefore his claims must be dismissed as barred by
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 Deputy
Commissioner must be commenced within sixty days after the
receipt of notice of the right to appeal. See 42
U.S.C. §§ 405(g) & 405(h). Although this bar
operates as a statute of limitations rather than a
jurisdictional bar, because it is a condition on 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 (10thCir. May 19, 2005),
cert. denied, 126 S.Ct. 453 (2005); Miles v.
Colvin, 2014 WL 2533814 at *1 (W.D. Okla. June 5, 2014).
August 1, 2017, an Administrative Law Judge
(“ALJ”) issued a decision denying plaintiff's
application for disability insurance benefits under Title II
of the Social Security Act. (Def. Motion App., Podraza Decl.
¶ (3)(a) at 3 & Exh. 1.) Plaintiff requested review
of this decision by the Appeals Council. On November 22,
2017, the Appeals Council mailed notice to plaintiff of its
denial of his request for review and advised him of his right
to commence a civil action “in the United States
District Court for the judicial district in which you
live” within 60 days of receipt of the notice.
(Id., Cousins Decl. ¶ (3)(b) at 3 & Exh.
6.) Plaintiff maintains he did not receive the notice of
denial until December 5, 2017, nearly two weeks past the date
it was mailed, based on the receipt stamp his counsel affixed
to the notice. For purposes of this motion only, the Deputy
Commissioner has agreed to assume the 60-day deadline runs
from this later date. Cf. 20 C.F.R. § 404.901
(presumption that notice received five days after mailing).
See also Gossett, 139 Fed.Appx. at 26. Accordingly,
the deadline for filing the instant action was February 5,
2018. Because this action was not commenced
until February 21, 2018, plaintiff's appeal is untimely.
the court retains discretion to equitably toll the statute of
limitations in appropriate circumstances. See United
States v. Clymore, 245 F.3d 1195, 1198 (10th
Cir. 2001). Plaintiff claims to be entitled to equitable
tolling because his counsel filed a motion for extension of
time to file an appeal with the Appeals Council within the
deadline, which was not ultimately denied until April 21.
(Def. Motion App., Podraza Decl. ¶ (3)(b) at 3 &
Exhs. 3 & 4.) On the facts of this case, however, this
circumstance provides no justifiable ground for tolling
courts have typically extended equitable relief only
sparingly.” Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457, 112
L.Ed.2d 435 (1990). “[A] petitioner is entitled to
equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010)
(citation and internal quotation marks omitted). The second
prong of this test requires plaintiff to show the
circumstances that caused the delay were “both
extraordinary and beyond his control.”
Menominee Indian Tribe of Wisconsin v. United
States, - U.S. -, 136 S.Ct. 750, 756, 193 L.Ed.2d 652
(2016) (emphasis in original). Equitable tolling is not
appropriate unless both these elements are satisfied.
has failed to meet his burden of proof as to either of these
prongs of the apposite test. Although the extension plaintiff
requested from the Appeals Council sought until February 19
in which to file this appeal (See Def. Motion App.,
Podraza Decl., Exh. 3), he inexplicably waited until February
21 to submit his complaint. Thus even if his extension had
been granted, his appeal was untimely. Moreover, counsel
for plaintiff presents neither argument nor evidence to
suggest he contacted the Appeals Council or otherwise tried
to apprise himself of the status of his request for extension
at any time prior to the expiration of his own self-imposed
deadline. Such circumstances do not evidence a party
diligently pursuing his rights.
and regardless of plaintiff's diligence, vel
non, he has not shown some extraordinary circumstance
beyond his control prevented the timely filing of this
appeal. In his motion to the Appeals Council, counsel for
plaintiff represented he required an extension of time
because, “[i]n addition to the holidays, the
undersigned counsel has been scheduled to appear in
approximately 90 hearings in a number of cities.” (Def.
Motion App., Podraza Decl., Exh. 3.) These circumstances,
while perhaps understandable, are not in the least
extraordinary. Lookingbill v. Cockrell, 293 F.3d
256, 264 (5th Cir. 2002) (“[A]s the district
court pointed out, ‘operating under time constraints on
federal cases [is] not unusual.' Thus, we decline to
apply equitable tolling just because a lawyer is
busy.”), cert. denied, 123 S.Ct. 878 (2003);
Falls v. Novartis Pharmaceuticals Corp., 2014 WL
3810246 at *4 (D. Conn. Aug. 1, 2014) (“‘[T]he
ability of Plaintiff's counsel to manage his caseload is
not a sufficient reason to disregard the Federal Rules of
Civil Procedure.'”) (quoting McGuinnes v.
Novartis Pharmaceuticals Corp., 289 F.R.D. 360, 363
(M.D. Fla. 2013)); Bower v. Walsh, 703 F.Supp.2d
204, 220 (E.D.N.Y. 2010) (“[T]he statute of limitations
cannot be individually tailored to an attorney's workload
in a given case through the doctrine of equitable
tolling.”); Middleton v. Gould, 952 F.Supp.
435, 440 (S.D. Tex. 1996) (an “unusually hectic work
schedule did not excuse” plaintiff, an attorney, from
checking his mail for notice of final agency decision). Most,
if not all, attorneys have busy schedules. Were an
attorney's heavy caseload found to justify equitable
tolling, the limitation would be rendered essentially
find and conclude it would be inappropriate to exercise my
discretion to equitably toll limitations in this instance.
Dismissal thus is required.
IT IS ORDERED as follows:
1. That Defendant's Motion To Dismiss Pursuant to
Federal Rules of Civil Procedure 12(b)(6) [#11],
filed May 22, 2018, is granted; and
2. That this appeal is dismissed for lack of ...