United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Melissa Raye Pohl, proceeding pro se, seeks judicial review
of a final decision of the commissioner of Social Security
concerning her application for disability insurance benefits.
The government has filed a motion for summary judgment,
seeking dismissal because Pohl filed her civil action in this
court beyond the deadline for doing so. Because the record
shows that Pohl did not meet the statute of limitations for
filing her complaint, and because she fails to show that
equitable tolling should apply, I will grant the
government's motion and dismiss this case.
following facts come from this court's electronic docket
and the materials filed by the parties in the course of
briefing the government's summary judgment motion.
Melissa Raye Pohl, a New Richmond, Wisconsin, resident, filed
a claim for Social Security disability benefits in November
2012, concerning a skull injury, nerve problem in her left
arm, cervical disc disease, myofascial pain, and mental
health problems. On January 7, 2015, an administrative law
judge issued a decision concluding that Pohl was not disabled
within the meaning of the Social Security regulations. Pohl
appealed to the Appeals Council, which denied the appeal on
April 21, 2015. Pohl's complaint seeking review of the
Social Security Administration's decision was received by
this court on July 8, 2015.
the Social Security statutes and regulations, Pohl had 60
days from the date she received the Appeals Council's
decision in which to file her civil complaint in this court.
42 U.S.C. § 405(g) (claimant has 60 days “after
the mailing to him” to file civil action); 20 C.F.R.
§§ 404.981 and 422.210(c) (both stating that the
60-day period runs from the time the claimant receives the
decision). The date of receipt of the notice is presumed to
be five days after the date of such notice, unless a
reasonable showing to the contrary is made to the Appeals
Council. 20 C.F.R. §§ 404.901, 422.210(c); see
also Frappier v. Astrue, No. 09-cv-445-bbc, 2010 WL
1836792, at *1 (W.D. Wis. May 6, 2010) (dismissing Social
Security complaint that was filed 15 days late). If that
five-day presumption applies, Pohl had until June 25, 2015,
to submit her complaint. Instead, the complaint was received
by the court 13 days later, on July 8, 2015. The government
asks the court to dismiss the case because Pohl did not file
her complaint within the 60-day deadline (or 65-day deadline
given the five-day period for presumption of receipt).
seems to concede that her complaint was late, just not 13
days late. She does not give a detailed timeline of
what happened, but she says, “I fear that we are truly
looking at a matter of 5 days or less.” Dkt. 18, at 2.
She contends that part of the reason her complaint was not as
late as the government asserts is because she did not receive
the Appeals Council decision within the five-day presumption
for receipt discussed above. She states that she checks her
mail only on Sundays and “one other day of the week,
” Dkt. 18, at 1, (which day, she does not say), and
that the decision was not in her mailbox on the Sunday
following the decision (April 26, 2015). But Pohl says that
she received the decision “on a business day, ”
id., by which I take to mean some day later that
supplement, Pohl states that she spoke to her “local
United States Post Master, ” who stated that the only
way to truly guarantee delivery with five days would be to
mail something by Priority Express Mail, and that otherwise
delivery could take “weeks, especially if there are any
kinks along the way, which is not uncommon for something
mailed several states away.” Dkt. 20, at 2 (internal
quotations omitted). While we all know that mail can
get lost, Pohl does not actually say that the Appeals Council
decision did get lost or take weeks to reach her,
even if she did, it would contradict the rest of her story.
also argues that she should be given wiggle room on the back
end of the deadline because of the Independence Day holiday
that delayed the delivery of the complaint by one day (July
3, 2015 was a federal holiday because July 4 fell on a
Saturday). But this misunderstands the Federal Rules of Civil
Procedure. Documents are “filed” in this court
when they are received, not when they are mailed.
Fed.R.Civ.P. 5(d)(2)(A); Raymond v. Ameritech Corp.,
442 F.3d 600, 604-05 (7th Cir. 2006). The court received
Pohl's complaint on July 8, so that is when it is
considered filed. There does not seem to be any dispute that
she took more than 60 days from receipt of the Appeals
Council decision to file her complaint.
60-day filing requirement is a statute of limitations that
must be strictly construed in the government's favor.
See Bowen v. City of N.Y., 476 U.S. 467, 479 (1986).
But Pohl raises other arguments that I take to be requests to
invoke the doctrine of equitable tolling to allow late filing
of her complaint. Id. at 480 (equitable tolling can
apply to review of Social Security decisions). Under this
doctrine, a court may toll a statute of limitations if the
plaintiff can show that extraordinary circumstances existed
that prevented her from filing her complaint on time.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Bowen, 476 U.S. at 480-81.
courts should apply equitable tolling sparingly, Natl
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-114
(2002), and Pohl fails to show that it should apply here. She
argues that her health problems affect her memory and cause
her to forget dates, and attaches a doctor's note stating
that she “has a history of traumatic brain injury and
PTSD” and that “[t]hese conditions can cause
problems with memory.” Dkt. 20-2. But she stops short
of saying that her memory problems actually caused the delay
here by causing her to forget that she had to file her
she blames the delay on the mailing problems discussed above,
as well as the fact that she mailed the Appeals Council
decision to a law firm after receiving it. She states that
because she mailed the letter, she was left “without
the Appeals Council's specific instructions as to the
amount of time needed to have known to file an extension of
time with my claim and waiver of court fees.” Dkt. 18,
at 1. This was a mistake on her part that does not warrant
equitable tolling. She also states that she talked to someone
from the clerk's office, and “was not told about
extension of time filing for I would've done that . . .
.” Id. at 2. But the clerk of court cannot
give legal advice to parties by explaining statutes of
limitations or extension procedures. It was Pohl's job to
submit her ...