United States District Court, Eastern District of New York
September 25, 2001
DANIEL C. LAURSEN, PLAINTIFF,
LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY,[FN1] DEFENDANT.
The opinion of the court was delivered by: Block, District Judge.
MEMORANDUM AND ORDER
Plaintiff, Daniel C. Laursen ("Laursen"), brings this action
pursuant to 42 U.S.C. § 405(g) seeking review of the final order
of the Commissioner of Social Security ("Commissioner") denying
his application for Disability Insurance Benefits ("DIB"). The
Commissioner moves to dismiss the complaint pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure for failure to
timely commence the action. Because the Court concludes that the
Commissioner failed to provide adequate notice of its procedural
rules, the motion is denied.
Laursen filed an application for DIB on September 25, 1996;
the application was denied. On December 6, 1997, after de novo
review by an administrative law judge ("ALJ"), Laursen was found
not disabled within the meaning of the Social Security Act.
Laursen requested review of the ALJ's decision by the Appeals
Council. By letter dated December 8, 1999, the Appeals Council
denied the request; consequently, the ALJ's decision became the
final decision of the Commissioner. See 20 C.F.R. § 404.981.
The letter advised Laursen that he had a right to commence a
civil action in the United States District Court within sixty
(60) days of receipt of the letter. It also gave the following
notice: "[I]f you cannot file your complaint within 60 days, you
may ask the Appeals Council to extend the time in which you may
begin a civil action. However, the Council will only extend the
time if you provide a good reason for not meeting the deadline.
Your reason(s) must be set forth clearly in your request."
Waxman Decl.Ex. 2.
On February 28, 2000, Laursen, who had not been represented by
counsel, requested an extension from the Appeals Council to file
his civil action. Laursen explained that he had difficulty
obtaining an attorney within the allotted 60 days but that he
finally found one and expected to retain him in the next week.
See Waxman Decl. Ex. 3. Four days later, on March 3, 2000,
Laursen, now represented by counsel, filed his complaint.
Thereafter, on April 24, 2000, the Appeals Council denied the
extension request, stating that "you did not request the
extension until after the 60 days allowed had lapsed. You should
have requested the extension within the time allotted.
Therefore, the Appeals Council does not find that there is good
cause for granting you an extension of time to file a civil
action." Id. at Ex. 4. The Rule 12(b)(1) motion followed.
42 U.S.C. § 405(g), which authorizes judicial review by
district courts of final decisions of the Commissioner, provides
in relevant part: "Any individual, after any final decision of
the Commissioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in controversy,
may obtain a review of such decision by a civil action commenced
within 60 days after the mailing to him of notice of such
decision or within such further time as the Commissioner of
Social Security may allow." (Emphasis added). Thus, Congress
has delegated to the Commissioner the power to extend the 60-day
period of limitations. Pursuant to this grant of power, the
Commissioner has enacted the following regulation:
Any party to the Appeal Council's decision or denial
of review, or to an expedited appeals process
agreement, may request that the time for filing an
action in Federal district court be extended. The
request must be in writing and it must give the
reasons why the action was not filed within the
stated time period. The request must be filed with
the Appeals Council, or if it concerns an expedited
appeals process agreement, with one of our offices.
If you show that you had good cause for missing the
deadline, the time period will be extend ed. To
determine whether good cause exists, we use the
standards explained in § 404.911.
20 C.F.R. § 404.982.
Section 404.911 provides a list of nine factors the
Commissioner considers in making its "good cause" determination
Since the Commissioner rejected plaintiff's request as untimely,
the good cause issue was never reached.
Notably absent from both the Commissioner's regulation
authorizing requests to extend the 60-day filing requirement and
the notice that the claimant received is that the request must
be made within such 60-day period. The Commissioner has
obviously interpreted its extension regulation as requiring the
extension request to be made within that time frame and,
furthermore, is apparently of the belief that its notice
sufficiently apprises a claimant wishing to seek an extension of
time to file a civil action that he or she cannot do so after
the 60-day period expires. These conclusions are at variance
with fundamental principles of due process.
It is well established that "[a] claim of entitlement to
social security benefits triggers due process protection."
Rooney v. Shalala, 879 F. Supp. 252, 255 (E.D.N.Y. 1995)
(citing Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976)). Adequate notice is "an elementary
and fundamental requirement of due process." Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94
L.Ed. 865 (1950). It "must be of such nature as to reasonably
convey the required information." Id. To that end, "[d]ue
process requires that the [Commissioner] give claimants notice
reasonably calculated to apprise them of the pendency of action
which may permanently
affect their rights." Rooney, 879 F. Supp. at 255 (citing Day
v. Shalala, 23 F.3d 1052, 1064-66 (6th Cir. 1994)).
Neither the extension regulation nor the notice to plaintiff
satisfies this bedrock principle of constitutional law. It would
be a simple matter to provide that an extension must be sought
within the original 60-day time frame. It is not sufficient to
presume that this is implicit; it must be explicit. In any
event, one may fairly debate whether such notice is implicit.
Notably, the extension regulation speaks in terms of "missing
the deadline," clearly suggesting that the extension request can
be made after the deadline. This is reinforced by the "good
cause" regulation incorporated by reference in § 404.982 which,
in addition to being a source of confusion since its focus by
its title and terms is geared to the administrative review
process regarding the reopening or reconsideration of
administrative adjudicatory determinations, speaks in terms of
"missing a deadline to request review." 20 C.F.R. § 404.911(a).
In that respect, it asks the claimant to set forth, inter
alia, "[w]hat circumstances kept you from making the request on
time." 20 C.F.R. § 404.911(a)(2). This suggests that since a
good faith request for an administrative review can be made
after the normal time has expired, the same could be said for a
request for an extension of time to initiate a civil
To be added to the mix is the realization that many claimants
for social security benefits are not well educated or are not
adept in the English language; moreover, they invariably are not
represented by counsel. The courts have therefore charged the
Commissioner with a heightened responsibility to vouchsafe their
rights, including the need for express notice of procedural
rules. See Frank v. Chater, 924 F. Supp. 416, 422 (E.D.N.Y.
1996) (citing Echevarria v. Secretary of Health and Human
Servs., 685 F.2d 751, 755-57 (2d Cir. 1982)); see also
Weinstein v. Albright, No. 00 Civ. 1193, 2000 WL 1154310, at *3
(S.D.N.Y. Aug. 14, 2000) (pro se party must receive express
notice of procedural rules) (citing McPherson v. Coombe,
174 F.3d 276, 281 (2d Cir. 1999)); Vital v. Interfaith Medical
Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999)); Christopher v.
Secretary of Health and Human Servs., 702 F. Supp. 41, 43
(N.D.N.Y. 1989) ("[T]he [Commissioner] has an affirmative duty
to avoid providing applicants with misleading information,
especially when applicant was without counsel at the time . . .
and relied on the plain language of her denial notice" (internal
quotation marks omitted)).*fn3
Examples of clear and simple rules governing requests for
extensions of time to appeal abound. For example, Fed.R.App.P.
4(a)(5) provides that the district court may extend the time to
file a notice of appeal in a civil action if "a party moves no
later than 30 days after the time prescribed by this Rule 4(a)
Fed.R.App.P. 4(b)(4), governing appeals in criminal cases,
provides that "[u]pon a finding of excusable neglect or good
cause, the district court may — before or after the time has
expired, with or without motion and notice — extend the time to
file a notice of appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed by this
Rule 4(b)." Thus, whenever Congress has spoken, it has recognized the
constitutional need to afford clear notice to those seeking
extensions for the adjudication of their legal claims. The
Commissioner must do the same.
The remaining question is one of remedy. If the plaintiff knew
that he had to act within 60 days, he might very well have filed
his lawsuit pro se rather than forestall filing while he
sought an attorney. Even if he chose instead to request an
extension within the 60-day period in the hope that an attorney
would be able to draft the complaint, he might have received a
decision before the 60-day period expired. If negative, he
logically would have then timely filed.
In short, it was the government's conduct in providing
inadequate notice that undoubtedly mislead the plaintiff. There
is nothing in this record to suggest that he acted in bad faith.
To the contrary, the extension application was filed just a few
weeks after the expiration of the 60-day period, and the
complaint, signed by counsel, was filed just four days later.
All signposts indicate that this is a case ripe for equitable
tolling of a filing deadline, which invariably has been allowed
in social security cases of government misconduct. See Canales
v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991) (citing cases).
As noted in Canales, "[e]quitable tolling of the limitations
period found in Section 405(g) is not infrequently appropriate,
as Congress intended to be unusually protective of claimants in
this area." Id. (internal quotation marks omitted). In the
present case, the need for equitable tolling is so clear that
there is no reason to remand since the usual deference afforded
administrative agencies to consider whether the filing period
should be extended would be inappropriate. See id. ("[C]ases
occasionally arise where the equities in favor of tolling are
`so great that deference to the agency's judgment is
inappropriate.'"). Nor, given the circumstances, is there need
for the Court to conduct a hearing. Cf. id. (hearing required
to determine whether claimant was mentally incapacitated during
The Commissioner's motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(1) is denied.