United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on the "Defendant's
Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment." (Doc. 8). The Commissioner argues that the
court should dismiss this case pursuant to Federal Rule of
Civil Procedure 12(b)(6) or, alternatively, grant summary
judgment in the Commissioner's favor pursuant to Federal
Rule of Civil Procedure 56, because Mr. Johnson's
Complaint was untimely. Because the Commissioner attached
affidavits outside of the pleadings to its motion, the court
construed this motion as one for summary judgment filed
pursuant to Rule 56; gave Mr. Johnson the required notice
pursuant to Griffith v. Wainwright, 772 F.2d 822,
825 (11th Cir. 1985); and gave Mr. Johnson until March 28,
2017 to respond to the motion for summary judgment. (Doc.
10). Mr. Johnson filed no response to the motion.
following reasons, the court finds that the
Commissioner's motion for summary judgment is due to be
Judgment Legal Standard
both parties have had an opportunity to respond to the motion
for summary judgment, the court must grant the motion
only if no genuine issues of material fact exist
and if the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56. If the
adverse party "fails to properly address another
party's assertion of fact as required by Rule 56(c), the
court may . . . grant summary judgment if the motion and
supporting materials-including the facts considered
undisputed-show that the movant is entitled to it . . . .
" Fed.R.Civ.P. 56(e)(3); see also United States v.
5800 SW 74th Ave., 363 F.3d 1099, 1101-02 (11th Cir.
2004). Therefore, even if the adverse party files no
response, the court must consider the merits of the motion to
determine whether the movant is entitled to summary judgment.
court must “view the evidence presented through the
prism of the substantive evidentiary burden” to
determine whether the non-moving party presented sufficient
evidence on which a jury could reasonably find for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The court must not weigh the
evidence and make credibility determinations because these
decisions belong to a jury. Id. at 254. Further, all
evidence and inferences drawn from the underlying facts must
be viewed in the light most favorable to the non-moving
party. See Graham v. State Farm Mut. Ins. Co., 193
F.3d 1274, 1282 (11th Cir. 1999).
Commissioner argues that Mr. Johnson had sixty days after he
received the Appeals Council's denial of his request for
review on December 9, 2015, or until on or before February
12, 2016,  to file his action in this court
requesting review of the Administrative Law Judge's
decision finding that he is not disabled. However, Mr.
Johnson did not file his action in this court until October
26, 2016, almost eight months after the February 12, 2016
deadline. The Commissioner also argues that no circumstances
exist for the court to justify equitable tolling of the
sixty-day requirement under 42 U.S.C. § 405(g). The
to 42 U.S.C. § 405(g), an individual may obtain review
of a final decision of the Commissioner of Social Security by
filing a civil action within sixty days "after the
mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may
allow." Moreover, 42 U.S.C. § 405(h) provides that
§ 405(g), to the exclusion of the federal jurisdiction
statute under 28 U.S.C. § 1331 or § 1346, is the
only avenue by which the claimant can seek judicial review of
the Commissioner's final decision.
the sixty-day requirement under 42 U.S.C. § 405(g)
"is not jurisdictional, but rather constitutes a period
of limitations." Bowen v. City of New York, 476
U.S. 467, 478 (1986). Because the sixty-day requirement is a
"condition on the waiver of sovereign immunity, "
courts must construe that requirement strictly. Id.
at 479. The court can equitably toll the sixty-day
requirement in rare cases where the claimant shows
"extraordinary circumstances" to justify equitable
tolling. Id. at 479-80.
present case, Mr. Johnson did not respond to the
Defendant's motion and provided no explanation for his
untimely filing. As such, he has failed to show
"extraordinary circumstances" to justify the court
applying the doctrine of equitable tolling.
court finds that no genuine issues of material fact exist in
this case and that the Defendant is entitled to summary
judgment as a matter of law because Mr. Johnson's
Complaint in this action was untimely.
court will enter a separate Order in conformity with ...