Roderick del Rosario v. Commissioner of Social Security

Background

Roderick del Rosario sought judicial review under 42 U.S.C. § 405(g) of a Social Security Administration decision partially denying his claim for supplemental security income benefits. An administrative law judge issued a decision on November 24, 2017. The Appeals Council denied review in a decision dated September 21, 2018, making the administrative law judge’s decision the Commissioner’s final decision.

The notice from the Appeals Council stated that del Rosario had 60 days to file a civil action. It also stated that receipt would be presumed five days after the notice date unless the claimant showed that the notice was received later. Applying that presumption, the court determined that receipt occurred on September 26, 2018, and that the filing deadline was November 26, 2018. Del Rosario filed this action on November 28, 2018, two days late.

Motion and Conversion to Summary Judgment

The defendant initially moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint as untimely. Because the defendant submitted materials outside the pleadings, the court notified the parties that it would treat the request as a Rule 56 motion for summary judgment on timeliness and gave del Rosario an opportunity to submit additional evidence and briefing.

Del Rosario did not dispute that the complaint was filed two days late. He argued that the defendant’s motion should not be considered because it was filed three days after the parties’ agreed deadline. The court found confusion in the service records and electronic docket entry, and concluded that the late filing resulted from an inadvertent calendaring mistake. Because refusing to consider the motion could have allowed a request for default judgment against the government, the court decided to consider the motion.

Equitable Tolling

Del Rosario argued that equitable tolling should excuse the late complaint. Equitable tolling is a limited doctrine that can extend a filing deadline in unusual circumstances. His counsel stated that a prior attorney resigned on October 2, 2018, and that the case was then transferred to him while he was traveling internationally for about two months. During that time, he lacked access to the electronic and paper files. He returned on November 28, 2018, reviewed the Appeals Council’s denial, and filed the complaint that day.

The court held that these circumstances did not meet the demanding standard for equitable tolling. It found that counsel offered little more than speculation that the Appeals Council’s notice had arrived later than the presumed five-day receipt period. The court also noted that no one apparently checked the counsel’s mail or files during his extended absence and relied on authority stating that ordinary attorney negligence, without additional circumstances such as bad faith or dishonesty, generally does not justify equitable tolling.

Disposition

The court held that equitable tolling did not apply and granted the defendant’s motion for summary judgment on timeliness. The case was dismissed with prejudice. The Clerk was directed to enter judgment for the defendant and against del Rosario and close the file.