Chevres v. Kijakazi

Background

Alfredo Chevres sued Kilolo Kijakazi, the Acting Commissioner of Social Security, seeking review of the Social Security Administration’s denial of his claim for disability insurance benefits under Title II of the Social Security Act. Chevres asked the court to set aside the agency’s decision and send the matter back for a fair hearing.

An administrative law judge denied the claim on May 13, 2021. After Chevres requested review, the Appeals Council mailed a notice denying review on April 12, 2022. The notice stated that Chevres had 60 days after receiving it to file a civil action and that receipt would generally be presumed five days after the notice date. Chevres did not ask the Appeals Council for more time before filing his lawsuit.

Chevres’s counsel said the notice went to counsel’s former office even though counsel had reported a new address to the Social Security Administration on January 10, 2022. Counsel also said Chevres received the notice but believed counsel had received a copy, so he did not promptly contact the lawyers. Counsel stated that the lawsuit was filed soon after counsel learned of the denial.

Motion and legal standards

The Commissioner moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) as untimely, or alternatively sought summary judgment under Rule 56 on the same ground. Summary judgment is a decision based on evidence showing that no material factual dispute requires a trial.

The court held that the motion should be treated as one for summary judgment because both sides relied on materials outside the pleadings, including the administrative record and evidence about counsel’s address. The court also had given the parties an opportunity to submit additional evidence.

Under 42 U.S.C. § 405(g) and the related regulation, a claimant generally must file a court action within 60 days after receiving the Appeals Council’s notice. Receipt is presumed five days after the notice date unless the claimant makes a reasonable showing otherwise. The court explained that equitable tolling—an exception that can extend a deadline when a claimant diligently pursued rights but an extraordinary circumstance prevented timely filing—requires proof from the claimant.

Court’s analysis

The court found that Chevres’s action was untimely. It calculated that, based on the April 12, 2022 notice date and the five-day receipt presumption, Chevres had until June 16, 2022 to file. The court stated that Chevres did not dispute that the action was late and offered no evidence showing that he personally received the notice more than five days after it was mailed.

The court ruled that the fact that Chevres’s counsel did not receive the notice did not change the deadline. The statute and regulation measure the period from when the notice is received by the individual claimant, not by the claimant’s lawyer. The court also stated that counsel’s address-update evidence did not alter the statutory deadline.

The court declined to apply equitable tolling. It found that Chevres had not shown the required diligence because, although he apparently learned of the decision after the notice was mailed, he did not contact counsel about filing a court action or try to file one himself during the filing period. The court also found that counsel’s failure to receive the notice was not an extraordinary circumstance of the type that had supported equitable tolling in other cases, particularly because there was no evidence that Chevres believed during the 60-day period that his attorneys were preparing or had filed a timely action.

Disposition

The court granted the Commissioner’s motion for summary judgment. The Clerk of Court was directed to close the motion docket entry. The opinion did not decide whether Chevres was disabled or otherwise entitled to benefits; it resolved the case based on the filing deadline.