of the decision and that her mental impairment rendered her
incapable of understanding her right to appeal and her
obligations in effectuating this federal action. Here, the
erroneous representation by the Secretary that Canales was
represented at the time of her administrative procedures, a
fact relied upon by the court, would fall under 60(b)(1) and
serves as a basis under which to reopen this case to determine
whether or not equitable tolling is available for a mental
disability. Accordingly, whether or not mental disability
should provide the "extraordinary circumstances" requisite to
reopen a judgment under 60(b)(6) is a question saved for
The Supreme Court has concluded that "application of a
`traditional equitable tolling principle' to the 60-day
requirement of § 405(g) is fully `consistent with the overall
congressional purpose' and is `nowhere eschewed by Congress.'"
Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022,
2030, 90 L.Ed.2d 462 (1986) (quoting Honda v. Clark,
386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967)). In Bowen
v. City of New York, the Supreme Court affirmed the district
court's holding that tolled the statute of limitations for
Social Security claimants with mental illnesses whose claims
for disability benefits had been denied based on improper
promulgated standards contained in internal memoranda. 476 U.S.
at 480, 106 S.Ct. at 2030. The Court emphasized that equitable
tolling was consistent with the purpose of the Social Security
Act which is "unusually protective of claimant." 476 U.S. at
480 n. 12, 106 S.Ct. at 2030 n. 12. The Court noted that the
statute of limitations embodied in § 405(g), in addition to
fulfilling its customary purposes of preventing stale claims
and preserving evidence, "is a mechanism by which Congress was
able to move cases to speedy resolution in a bureaucracy that
processes millions of claims annually." Id. at 481, 106 S.Ct.
at 2031. The Court, however, recognized that in a "rare case"
courts may apply the principle of tolling so as not to
undermine the purpose of the 60-day limitations period when
viewed in connection with the underlying statute. Id. See also
Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S.Ct. 414,
425, 102 L.Ed.2d 408 (1988) (equitable tolling of limitations
period for seeking administrative or judicial review not
appropriate because "[t]he agency action not taken pursuant to
a secret internal policy").
Bowen presented the "rare case" not because the claimants had
mental illnesses but rather because the Secretary was found to
have used covert, illegal criteria in adjudicating claims of
individuals under the age of fifty who were alleging
disability, or continued disability, due to mental illness.
Bowen, 476 U.S. at 480-81, 106 S.Ct. at 2030-31 (quoting Second
Circuit opinion's rationale that Government's clandestine
policy merited equitable tolling). The Supreme Court cautioned,
however, that in most cases where a claimant fails to bring a
civil action within the time prescribed by statute, the
Secretary should make the determination whether to extend the
limitations period. Id. at 480, 106 S.Ct. at 2030. Finally, the
Court recognized that, as a conditional waiver of sovereign
immunity, the sixty-day period must be construed strictly, but
not "unduly restrictively" and that tolling was appropriate
given the facts of the Bowen case. Id. at 479, 481, 106 S.Ct.
at 2031-31, 2030-31 (citing Block v. North Dakota,
461 U.S. 273, 287, 103 S.Ct. 1811, 1819-20, 75 L.Ed.2d 840 (1983)).
Several courts have recognized that equitable tolling arises
when the party against whom it is asserted engages in some
affirmative misconduct. See e.g., Crawford v. United States,
796 F.2d 924, 926 (7th Cir. 1986) ("equitable tolling under the
Federal Tort Claims Act is based on concealment or other
misconduct by the defendant; and thus when applied to statutes
of limitations against the government it penalizes the taxpayer
because of the unauthorized acts of his servant, the civil
servant. A doctrine that tolls the statute of limitations
because of some incapacity of the plaintiff, like a discovery
rule, . . . is not founded on misconduct by government
agents"); DeBrunner v. Midway Equipment
Co., 803 F.2d 950, 952 (8th Cir. 1986) (citations omitted)
(equitable tolling in Age Discrimination in Employment Act is
based on affirmative misconduct between private parties).
Here, Canales has not hinted at any misconduct by the
Secretary, let alone misconduct sufficiently grave to justify
an equitable tolling. Consequently, the question presented is
whether a mental impairment, absent any misconduct by the
Secretary, should provide the grounds for equitable tolling
under the Act when the unrepresented claimant allowed her time
to sue to expire, failed to request another extension from the
Secretary, and failed to file any papers in opposition to the
motion to dismiss her case, even though the Court contacted her
by both mail and phone.
The Second Circuit case most analogous, and upon which the
Secretary relies, is Wong v. Bowen, 854 F.2d 630 (2d Cir.
1988). The Court in Wong observed that, "[e]quitable tolling
thus far has been allowed only in those cases where the
government has hindered a claimant's attempts to exercise their
rights by acting in a misleading or clandestine way". 854 F.2d
at 631. The Court went on to note that "[a]llowing disability
claimants who have been denied benefits to toll the sixty-day
period on grounds of poor health would thoroughly undermine
Section 205(g)'s sixty-day limitation period". Id.
The Second Circuit recently has reiterated this understanding
of Section 405(g) in State of New York v. Sullivan,
906 F.2d 910, 917 (2d Cir. 1990). In State of New York the Court said
that "cases occasionally arise where the equities in favor of
tolling are `so great that deference to the agency's judgment
is inappropriate.'" 906 F.2d at 917 (quoting Mathews v.
Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18
(1976)). The Second Circuit noted that the facts of the case
presented in State of New York supported the district court's
decision to toll because of the Secretary's conduct in failing
to publish rules pursuant to regulations. 906 F.2d at 917.*fn2
Whether or not mental impairment alone will support equitable
tolling appears to be a question of first impression in the
Southern District. Other district courts, however, have found
that alleged mental impairments do not constitute a basis for
tolling the sixty-day period. See Carter v. Heckler,
588 F. Supp. 87, 90 (N.D.Ill. 1984) (mental disability does not toll
sixty-day period); Palucis v. Schweiker, 523 F. Supp. 199,
200.01 (W.D.Pa. 1981) (holding plaintiff bound by sixty-day
limitations period, notwithstanding claim, in part, that he
suffered from mental impairment allegedly affecting his ability
"to monitor and direct the proper disposition of his claim").
Furthermore, there is a line of authority supporting the
proposition that mental incompetence does not toll federal
statutes of limitation in cases involving claims against the
government, Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244,
1246 (S.D.Ohio 1984). The cases often involve the Federal Tort
Claims Act (FTCA), a statute that contains no provisions for
tolling and where equitable tolling principles are
inapplicable. Id. at 1246; see also Carter v. Heckler, 588
F. Supp. at 90 n. 2 (the principle behind both the Federal Tort
Claims Act and the Social Security Act "should be no
The Supreme Court has indicated that waivers of sovereign
immunity are to be strictly construed. Indeed, Pittston Coal
may stand "for the proposition that equitable tolling and
excusal of exhaustion are not appropriate unless the
government's clandestine actions have kept plaintiffs from
appreciating the scope of their rights." See Bailey v.
Sullivan, 885 F.2d 52, 64 (3rd Cir. 1989) (citing Wong v.
Canales does not present the "rare case" discussed in
Bowen v. City of New York, 476 U.S. 467, 480 n. 12, 106 S.Ct.
2022, 2030 n. 12, 90 L.Ed.2d 462 (1986) where the period of
limitation of 42 U.S.C. § 405(g) should be tolled by the
courts. The statute here is designed to be remedial and
humanitarian — to help those with disabilities. Given the
nature of the statute, and the frequency with which a claim of
mental impairment would arise — equitable tolling on the basis
of mental impairment would not comport with the Supreme Court's
strict construction of the waiver of sovereign immunity for
"rare cases" only. On the contrary, to toll on this basis would
erode the very purpose of having a statute of limitations.
Canales was not represented at her administrative
proceedings. Although her present counsel states that Canales
did not understand that she had the right to a further appeal,
Canales must have been aware of the necessity to appeal because
she did file, albeit untimely, a pro se complaint. Since the
denial of the first application, the Secretary has granted the
second application for benefits recognizing Canales' suffering
from a disabling mental illness within the meaning of the Act
and implementing regulations. Presented with these
circumstances and Second Circuit case law to date, the statute
will not be tolled on the equities Canales has set forth.
It is so ordered.