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Rodemeier v. Berryhill

United States District Court, W.D. Wisconsin

March 31, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]


          William M. Conley District Judge

         Plaintiff Mary Rodemeier seeks judicial review of a December 2013 administrative decision denying her claim under the Social Security Act for disability insurance benefits. This is the second time that she has sought review of that decision in this court. In the first case, Rodemeier v. Colvin, 15-cv-376-bbc (W.D. Wis.), the commissioner moved to dismiss the case because plaintiff missed her 60-day deadline under 42 U.S.C. § 405(g) for filing a federal lawsuit after the Appeals Council denied review of her claim. While the commissioner's motion was pending, however, plaintiff asked the Appeals Council to grant a retroactive extension of time to file a civil action. As a result, the court dismissed plaintiff's case without prejudice to her refiling after the Council ruled on the motion. The Appeals Council subsequently denied her request for extension and plaintiff refiled this case. Predictably enough, the commissioner moves again to dismiss the case on the ground that it is untimely. For the reasons explained below, that motion will be granted.


         Because the deadline for filing suit under § 405(g) constitutes a statute of limitations, Bowen v. City of New York, 476 U.S. 467, 478 (1986), the commissioner's opposition amounts to the assertion an affirmative defense. Fed.R.Civ.P. 8(c). Generally an affirmative defense cannot be raised in a motion to dismiss, but an exception exists if it is clear from the face of the complaint and any facts subject to judicial notice that the defense clearly applies. O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015); Henson v. CSC Credit Services., 29 F.3d 280, 284 (7th Cir. 1994).

         Here, the plaintiff clearly missed her deadline, as confirmed by the filings in this case as well as those in case no. 15-cv-376-bbc, a fact she does not dispute. Instead, plaintiff makes two arguments: (1) the commissioner's motion is itself untimely; and (2) the Appeals Council erred in refusing to grant her an extension of time.

         With respect to the first argument, plaintiff is correct that the commissioner missed her deadline for filing a responsive pleading by one day. This argument is, however, a nonstarter because a party may file a motion for failure to state a claim at any time before trial. Arbaugh v. Y&H Corp., 546 U.S. 500, 507 (2006) (“Under Rule 12(h)(2), th[e] objection [for failure to state a claim] endures up to . . . trial on the merits.”). Further, plaintiff does not identify any unfair prejudice that she suffered from this one-day delay. Global Technologies & Trading, Inc. v. Tech Mahindra Ltd., 789 F.3d 730, 732-33 (7th Cir. 2015) (district court may permit untimely affirmative defense when plaintiff is not unfairly prejudiced). Understandably, plaintiff suggests that it is unfair to enforce her deadline under § 405(g) for filing a lawsuit when defendant missed her own deadline under Fed.R.Civ.P. 12(b) for filing a responsive pleading. However, the obvious difference between the two deadlines is that a defendant does not have to prove prejudice in order to prevail on a statute of limitations defense. While prejudice may be relevant to the question whether a plaintiff is entitled to equitable tolling, Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750, 757 (2016), plaintiff makes no such argument here.

         With respect to her second argument, plaintiff says nothing in her complaint about the Appeals Council's decision denying her motion for an extension of time. However, this argument fails for other reasons. As an initial matter, the parties debate whether the Appeals Council's decision to deny plaintiff more time can be appealed under § 405(g) as a “final decision.” Plaintiff cites Boley v. Colvin, 761 F.3d 803, 804 (7th Cir. 2014), a Social Security case in which the court allowed review of an administrative decision denying a motion for an extension of time to request a hearing. In contrast, the commissioner cites 20 C.F.R. 404.903(j), which states that a denial of a request for an extension of time to file an appeal is “not subject to judicial review.”

         Even if the court assumes that plaintiff can appeal the agency's decision, however, her appeal still fails. Under Boley, 761 F.3d at 808, and 20 C.F.R. § 404.911, a party is not entitled to an extension of time without good cause. A federal court reviews a decision denying an extension of time for “substantial evidence, ” Boley, 761 F.3d at 808, which is “evidence as a reasonable mind might accept as adequate to support a conclusion.” Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012). This is a “deferential” standard that does not allow this court to reweigh the evidence or substitute its own judgment for that of the agency. Id.

         Although the review of an administrative decision generally occurs in the context of a motion for summary judgment, plaintiff has provided all the relevant documents with her opposition brief (including the decision of the Appeals Council, dkt. #8-4) and the relevant facts are undisputed. Accordingly, it is not necessary to convert the commissioner's motion to dismiss into a summary judgment motion. Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 480 (7th Cir. 2002) (failing to convert motion not reversible error when “there are no potential disputed material issues of fact”); Edgenet, Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 665 (7th Cir. 2011) (concluding that “[n]o harm was done” by failing to convert motion because “[t]he facts are essentially uncontested and present a question of law”). There is in particular no unfair prejudice to plaintiff in deciding the issue now because it was plaintiff who invited the court in her opposition brief to review the Appeals Council's decision.

         As for the merits, plaintiff stated in her motion to the Appeals Council that she missed the deadline because her counsel's “staff inadvertently considered the [wrong] date . . . in determining the appeal period.” Dkt. #8-2. As importantly, plaintiff did not allege that the agency had given her incorrect information or otherwise misled her in any way. On the contrary, the Appeals Council denied the request for more time because the “correct date . . . is clearly displayed” on the Appeals Council's decision. Dkt. #8-4.

         In arguing that the Appeals Council erred, plaintiff relies on two examples of “good cause” listed in § 404.911(b):

(4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods.
* * *
(9) Unusual or unavoidable circumstances exists . . . which show that you could have not known of the need to file timely, or which ...

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