United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
John Harvey Bright filed this social security appeal one day
outside of the statute of limitations period. Accordingly,
the Commissioner moves to dismiss the case as time-barred.
Plaintiff concedes that his complaint was filed one day after
the deadline due to counsel's oversight, but he argues
equitable tolling principles should be extended in this case
and excuse the late filing.
matter was referred to the Honorable Joel C. Hoppe, United
States Magistrate Judge, pursuant to 28 U.S.C. §
636(b)(1)(B), for proposed findings of fact and a recommended
disposition. The magistrate judge filed a report recommending
the court grant the Commissioner's motion to dismiss this
action as untimely. The magistrate judge reasoned that the
"garden variety" excusable neglect by counsel does
not constitute the type of extraordinary circumstances that
would warrant equitable relief. Bright objects to the
magistrate judge's report, arguing the magistrate judge
erred by not following the ruling in Stanley v.
Astrue. No. 2:09cv00821, 2011 WL 6009967 (S.D. W.Va.
Dec. 1, 2011), and applying equitable tolling.
case is unlike Stanley, however. The plaintiff in
Stanley filed his civil action two days after the
statute of limitations had run due to a personnel issue
involving a paralegal who was responsible for filing the
action in federal court. 2011 WL 6009967, at *1. The court
determined that plaintiff had met his burden under Irwin
v. Department of Veterans Affairs, 498 U.S. 89, 96
(1990), and established that he had pursued his rights
diligendy and extraordinary circumstances stood in his way.
2011 WL 6009967, at *2-3. Specifically, the court reasoned:
"that Plaintiffs counsel consistently files in a timely
manner shows that the events surrounding this filing, the
paralegal and personnel trouble of the Plaintiffs counsel,
were in fact extraordinary circumstances." Id.
at *3. The Stanley court applied equitable tolling
and denied the Commissioner's motion to dismiss the
complaint as untimely. Id.
"personnel issue" exists in Bright's case.
Rather, the late filing is attributable to an oversight on
the part of local counsel. There is no dispute that the
filing deadline for Bright's federal complaint was March
20, 2017. Nor is there any dispute that Bright did not
request an extension from the Appeals Council before that
complaint was signed by John Osborne Goss, a member of the
bar of this court, and dated March 14, 2017~yet it was not
filed in federal court until March 21, 2017, i the day after
the statute of limitations had run. In a written statement
filed in connection with the Commissioner's motion to
dismiss, Mr. Goss admits that the Olinsky Law Group, admitted
pro hac vice in this case, sent the complaint documents to
him on March 14, 2017, the date the documents were signed;
however, "due to oversight, " he did not file the I
complaint until March 21, 2017.
days after Mr. Goss filed the complaint, Brad Myler,
out-of-state counsel who represented Bright at the
administrative hearing, requested a one-day extension from
the Appeals Council, explaining that Bright's case had
been referred to another firm for the appeal and counsel had
filed the complaint one day late as a result of a calendaring
error. The Appeals Council denied Myler's request,
finding no good cause for extending a missed deadline.
courts apply equitable tolling sparingly. Irwin v.
Dep't of Veterans Affairs. 498 U.S. 89, 96 (1990).
Its application "must be reserved for those rare
instances where- due to circumstances external to the
party's own conduct-it would be unconscionable to enforce
the limitation period against the party and gross injustice
would result." Harris v. Hutchinson. 209 F.3d
325, 330 (4th Cir. 2000). Equitable tolling principles
"do not extend to what is at best a garden variety claim
of excusable neglect, " Irwin, 498 U.S. at
96-and that is precisely what we have here. Plaintiff
attributes his late filing only to an "oversight"
on the part of local counsel. But counsel's mistake in
filing the complaint one day after the deadline expired
'"does not present the extraordinary circumstance
beyond the party's control where equity should step
in"' to cure counsel's error. Rouse v.
Lee, 339 F.3d 238, 248 (4th Cir. i 2003) (quoting
Harris. 209 F.3d 325); see Id. at 248-49
(collecting cases that have held mistake by a party's
counsel in interpreting a statute of limitations does not
justify equitable tolling).
argues his "preferred" counsel, the Olinsky Law
Group, was required to I associate with local counsel to
initiate these proceedings in federal court, and this somehow
amounts to an extraordinary circumstance justifying equitable
tolling. To be sure, attorneys like Mr. Olinsky who are not
qualified and licensed to practice under the laws of Virginia
may appear only in association with a member of the bar of
this court. W.D. Va. Gen. R. 6(d). Notwithstanding plaintiffs
"preferences" as to counsel, Bright hired Mr. Goff
to file his complaint in this case. Mr. Goff s actions in
doing so one day after the filing deadline expired are
attributable to plaintiff under standard agency principles.
Rouse. 339 F.3d at 249. There is nothing
extraordinary about these circumstances.
bears the burden of establishing exceptional circumstances
that warrant equitable tolling, Gibbs v. Barnhart.
No. 2:04CV00056, 2005 WL 283205, at *2 (W.D. Va. Feb. 7,
2005) (Jones, C.J.), and he has failed to meet that burden in
this case. The case law makes clear that equitable tolling
principles do not extend to counsel's failure to file
within the statutory limitations period due to oversight.
Accordingly, the court must dismiss Bright's complaint as
appropriate order will be entered.