The opinion of the court was delivered by: Denise Cote, United States District Judge.
MEMORANDUM OPINION AND ORDER
In this case the Court must determine whether an attorney's
miscalculation of a filing deadline will deprive a social security
claimant of the right to appeal the adverse decision of the Commissioner
of Social Security (the "Commissioner") when the appeal was filed one day
too late. Plaintiff Juanita Davila ("Davila") commenced this action
pursuant to 42 U.S.C. § 405(g), for judicial review of the
Commissioner's decision that she is not disabled. The Commissioner moved
to dismiss the complaint as time barred, and through a Memorandum Opinion
and Order dated April 1, 2002, briefing was requested on whether the
mistaken belief of plaintiff's attorney that the complaint was filed on a
timely basis is a ground for equitable estoppel. See Davila v. Barnhart,
No. 02 Civ. 194 (DLC), 2002 WL 484678 (S.D.N.Y. Apr. 1, 2002).*fn1 Based
on the supplemental briefing of the parties and because the mistaken
belief of an attorney as to the timeliness of filing is not a ground for
equitable estoppel, the defendant's motion to dismiss is granted.
Section 405(g) of Title 42, United States Code, requires that claims be
presented in district court within 60 days of a final decision, or within
such further time as the Commissioner of Social Security may allow.
Because the 60-day time limit defines the terms on which the United
States waives its sovereign immunity and consents to be sued, it is
strictly construed. Bowen v. City of New York, 476 U.S. 467, 479 (1986);
Randell v. United States, 64 F.3d 101, 106 (2d Cir. 1995). Nonetheless,
the 60-day requirement "is not jurisdictional, but rather constitutes a
period of limitations." Bowen, 476 U.S. at 478. Moreover, the statute
containing this limitations period was designed by Congress to be
"`unusually protective' of claimants." Id. at 480 (quoting Heckler v.
Day, 467 U.S. 104, 106 (1984)); see also Dixon v. Shalala, 54 F.3d 1019,
1028 (2d Cir. 1995). Congress has explicitly authorized the Commissioner
to toll the 60-day limit, 42 U.S.C. § 405(g), and traditional
equitable tolling principles apply to the 60-day limit as well. Bowen,
476 U.S. at 480. Because of the protective nature of the statute for
claimants, the Second Circuit has observed that equitable tolling of the
limitations period is "not infrequently appropriate." State of New York
v. Sullivan, 906 F.2d 910, 917 (2d Cir. 1990).
"While in most cases the Secretary will make the determination whether
it is proper to extend the period within which review must be sought,
cases may arise where the equities in favor of tolling the limitations
period are so great that deference to the agency's judgment is
inappropriate." Bowen, 476 U.S. at 480 (citation omitted).
Plaintiff bears the burden of establishing the exceptional
circumstances that warrant equitable tolling. Boos v. Runyon, 201 F.3d 178,
185 (2d Cir. 2000). The Second Circuit has rejected the position that
equitable tolling is permissible only in cases of Government misconduct,
holding in Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991), that "mental
impairment may warrant equitable tolling of the statute of limitations
under some circumstances." Id. at 756; see also Stieberger v. Apfel,
134 F.3d 37, 40 (2d Cir. 1997). Courts have also tolled the limitations
period where the final notice was sent in English to a claimant accustomed
to receiving such notices in Spanish, Correa v. Bowen, 682 F. Supp. 755,
757 (S.D.N.Y. 1988), where the Commissioner failed to provide adequate
notice of the procedural rules governing requests for extensions of
filing time, Laursen v. Massanari, 164 F. Supp.2d 317, 321 (E.D.N.Y.
2001), and where a pro se claimant received conflicting information about
the filing deadline, Hernandez v. Sullivan, No. 91 Civ. 1836 (LBS), 1991
WL 243451, at *3 (S.D.N.Y. Nov. 8, 1991).
None of these circumstances is present in this case. The plaintiff
argues instead that equitable tolling should apply because her attorney
mistakenly believed that the complaint was timely filed. The Second
Circuit, along with its sister Circuits, has found in the course of
applying limitations periods imposed in other statutory regimes that
attorney error does not constitute an extraordinary circumstance
justifying equitable tolling. Smaldone v. Senkowski, 273 F.3d 133, 138-39
(2d Cir. 2001), cert. denied, 122 S.Ct. 1606 (2002) (AEDPA) (collecting
cases); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96
(1990) (Title VII) ("principles of equitable tolling . . . do not extend
to what is at best a garden variety claim of excusable neglect"). Of the
cases equitably tolling the 60-day period, only one involved a
miscalculation of the filing deadline. In Hernandez v. Sullivan, No. 91
Civ. 1836 (LBS), 1991 WL 243451 (S.D.N.Y. Nov. 8, 1991), the pro se
plaintiff was provided with conflicting information by a court and by an
attorney as to the deadline for filing a complaint. Because the pro se
claimant in Hernandez followed the advice given by Queens Legal
Services, the district court concluded that she did not sleep on her
rights and that, in light of the conflicting information provided,
equitable tolling was appropriate. Id. at *3. In contrast, Davila was
represented by counsel at the time the complaint was filed. There has
been no suggestion that Davila or her attorney received conflicting
information from either the Government or the Court as to the filing
deadline. Davila's attorney has been unable to explain why he mistakenly
thought the complaint was filed within the 60-day limitations period. As
noted above, attorney error or miscalculation is not one of the rare
circumstances in which equitable tolling is permissible.
In her reply memorandum, the plaintiff also argues that her asthmatic
condition prevented her from keeping a December 14, 2001 meeting with her
attorney to fill out an in forma pauperis petition in connection with
this appeal. Her telephone had also been disconnected. Her attorney's
inability to reach her by telephone is argued to have left the attorney
with the options of either having the Center for Disability Advocacy pay
the filing fee or assuming that the plaintiff had changed her mind and
had decided not to proceed with the appeal she had already asked the
Center to file on her behalf. Normally, arguments first made in a reply
need not be considered, Fifth Avenue Presbyterian
Church v. City of New
York, 293 F.3d 570, 2002 WL 1290839, at *5 (2d Cir. June 12, 2002), but
this argument was spurred by the intervening decision in Chapman v.
Choicecare Long Island Term Disability Plan, 288 F.3d 506 (2d Cir.
In Chapman, the plaintiff filed an untimely appeal to an ERISA plan
administrator. The Second Circuit observed that an attorney's "want of
diligence" would ordinarily not support equitable tolling. Id. at 512. In
Chapman, however, the court remanded the case for a hearing to determine
whether the claimant's "mental illness impaired counsel's efforts to file
a timely request for review." Id. at 514.
Davila does not assert that she suffers from a psychological impairment
that prevented her from reliably communicating her intentions to her
attorney. It is undisputed that she had instructed her counsel to
appeal. It also remains undisputed that the late filing occurred because
of her attorney's miscalculation of the filing deadline.
Nor do Davila's submissions require a hearing to determine whether any
of her impairments caused the late filing. The filing was made on January
7, without any in forma pauperis petition. The submissions discuss the
plaintiff's failure to attend an appointment with her attorney on December
14, but do not explain what happened between December 14 and January 7 to
cause the filing on January 7 or to cause the filing to be late.
The submissions are silent on whether the plaintiff or her attorney
took steps to contact each other after the attorney unsuccessfully
attempted to reach the plaintiff by telephone at her residence. There is
no discussion of attempts by the plaintiff to use a neighbor's
telephone, to communicate with the attorney through a friend or
relative, or by either the plaintiff or her attorney to write to each
other. Given the failure to assert sufficient facts to raise an issue as
to the cause of the late filing, and the fact that the burden to show
equitable tolling is on the plaintiff, it is unnecessary to hold an
In this case, the strict application of the traditional principles of
equitable tolling seems particularly harsh, for Davila filed her
complaint only one day late. Because the 60-day limit is a waiver of
sovereign immunity which must be strictly construed, however, "courts
have not hesitated to enforce the 60-day period as a firm limit."
Guinyard v. Apfel, No. 99 Civ. 4242 (MBM), 2000 WL 297165, at *2
(S.D.N.Y. Mar. 22, 2000) (ten day delay); ...