United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
Coke Morgan, Jr., Senior United Slates District Judge
matter is before the Court on Plaintiff Richard Parker's
("Plaintiff) Objections to the Report and Recommendation
("R&R") of the Magistrate Judge, Doc. 17, and
on Defendant Carolyn W. Colvin's ("Defendant")
Motion to Dismiss for Lack of Jurisdiction, Doc. 4. For the
reasons below, the Court OVERRULES Plaintiffs objections to
the R&R and ADOPTS the R&R, Doc. 16, in its entirety.
The Court GRANTS Defendant's Motion to Dismiss for Lack
of Jurisdiction, Doc. 4, and this case is DISMISSED WITH
does not object to the recitation of the procedural and
factual background of this case contained in the R&R,
which sets forth, inter alia, the following facts.
See Doc. 17 at 1. On August 19, 2011, Plaintiff filed an
application for disability insurance benefits
("DIB") with the Social Security Administration
("SSA"). R&R at 2. On December 14, 2011,
Plaintiffs application was denied. Id. On April 25,
2012, Plaintiff filed a request for a hearing before an
Administrative Law Judge ("ALJ"). Id. On
April 17, 2013, the ALJ denied Plaintiffs application.
Id. On April 30, 2013, Plaintiff appealed the
ALJ's decision to the Appeals Council for the Office of
Disability Adjudication and Review ("Appeals
Council"). R. 182. On May 10, 2014, the Appeals Council
notified Plaintiff that it remanded Plaintiffs case to the
ALJ. R.117-20. On July 16, 2014, the ALJ conducted a
rehearing of Plaintiff s case. R. 14. On August 27, 2014, the
ALJ again found that Plaintiff was not entitled to DIB. R.
11-24. On September 8, 2014, Plaintiff again appealed the
ALJ's decision to the Appeals Council. R. 10. On
September 30, 2015, the Appeals Council issued a Notice of
Appeals Council Action ("Notice") denying
Plaintiffs appeal. R. 1-5.
Notice, dated September 30, 2015, was addressed to Plaintiff
and "copied" to his counsel. R. 1, 3. The Appeals
Council mailed the Notice to Plaintiff and his counsel.
Pl.'s Aff. ¶¶ 2-3; Carr Aff. ¶ 2.
Plaintiffs home address is Norfolk, Virginia (23502), R. 1,
and his counsel's work address is Norfolk, Virginia
(23510), R. 3. The Notice informed Plaintiff of the Appeals
Council's denial of his appeal and the sixty-day time
period for filing a civil action. R. 2-3. The Notice
specified, "The 60 days start the day after you receive
this letter. We assume you received this letter 5 days after
the date on it unless you show us that you did not receive it
within the 5-day period." R. 2. Furthermore, the Notice
advised Plaintiff that he could file a written request for an
extension of time to file a civil case. R. 3. Plaintiff has not
alleged that he or his attorney sent such a request. See Doc.
5 at 5; Pl.'s Aff. ¶¶ 2-3. Five (5) days after
September 30, 2015 was October 5, 2015. Sixty (60) days after
October 5, 2015 was December 4, 2015. Plaintiff filed the
Complaint in this Court on December 7, 2015. Doc. 1.
March 8, 2016, Defendant filed a Motion to Dismiss for Lack
of Jurisdiction alleging that this Court lacks subject matter
jurisdiction over Plaintiffs untimely Complaint. Doc. 4 at 1.
Plaintiff opposed the Motion to Dismiss, claiming that he has
made a "reasonable showing" that his receipt of the
Notice extended the time for filing this action or, in the
alternative, that equitable tolling should apply. Doc. 11 at
26, 2016, the Magistrate Judge entered his R&R
RECOMMENDING that the Court GRANT the Motion to Dismiss. Doc.
16. Plaintiff filed his objections to the R&R on August
4, 2016, Doc. 17, Defendant responded on August 12, 2016,
Doc. 18, and this matter is now ripe for the Court's
STANDARD OF REVIEW
Review of the R&R
Court reviews de novo any part of a Magistrate
Judge's R&R to which a party has properly objected.
Fed.R.Civ.P. 72(b)(3). The Court may "accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions." Id. As to the unchallenged
portions of the R&R, the Court "must 'only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'"
Diamond v. Colonial Life & Ace. Ins. Co.. 416
F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72
advisory committee's note). The R&R has no
presumptive weight, and the Court remains responsible for
making a final determination. See Mathews v. Weber.
423 U.S. 261, 269 (1976).
to an R&R must be "specific and particularized"
to "train[ ] the attention of both the district court
and the court of appeals upon only those issues that remain
in dispute after the magistrate judge has made findings and
recommendations." United States v. Midgette,
478 F.3d 616, 621 (4th Cir. 2007). If a party makes an
argument in his pleadings but does not object to the R&R
on those grounds, the party has waived his right to appeal
that issue. See Id. at 622. ("[T]o preserve for
appeal an issue in a magistrate judge's report, a party
must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection.").
Time for Filing a Civil Action
Section 405(g) of Title 42 of the United States Code,
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy, may obtain
a review of such decision by a civil action commenced 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.
42 U.S.C. § 405(g). The Commissioner has authority to
"make rules and regulations" based on this statute.
§ 405(a). The corresponding regulation dictates that a
civil action must be filed "within 60 days after the
Appeals Council's notice of denial of request for
review... or notice of the decision by the Appeals Council is
received by the individual..., except that this time may be
extended by the Appeals Council upon a showing of good
cause." 20 C.F.R. § 422.210(c). Without such an
extension, "[e]ven one day's delay in filing the
action is fatal." Davidson v. Sec, of HEW, 53
F.R.D. 270, 271 (N.D. Okl. 1971).
of an Appeals Council denial notice is presumed five (5) days
after the date of the decision. 20 C.F.R. § 422.210(c);
Cook v. Comm'r of Soc. Sec,480 F.3d 432, 436
(6th Cir. 2007) (holding that "the 60-day period begins
five days after ...