United States District Court, W.D. Virginia, Roanoke Division
S. Ballou United States Magistrate Judge
social security appeal, I GRANT the
government's motion to dismiss (Dkt. 8) because
Plaintiff, Tonya Renee Hash (“Hash”), failed to
file this action within the 60-day statute of limitations,
and no circumstances exist to justify equitable tolling of
the statutory period.
applied for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”) on
November 3, 2011. Hash's applications were denied at both
the initial and reconsideration levels. An ALJ denied
Hash's claim on December 12, 2013, but on review, the
Appeals Council remanded the case to the ALJ on February 6,
2015. The ALJ subsequently issued an unfavorable decision on
March 14, 2016, and the Appeals Council declined to review it
on May 4, 2017. Hash filed this action on August 7, 2017.
individual must file a civil action challenging a denial of
social security benefits within 60 days of receiving notice
of the Appeals Council's decision by mail. See
42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). The
date of receipt of the notice from the Appeals Council is
presumed to be five days after the date of the notice, unless
there is a reasonable showing to the contrary. §
60-day statute of limitations is not jurisdictional and is
subject to equitable tolling. See Bowen v. City of New
York, 476 U.S. 467, 478-80 (1986). “[T]olling of
the period of limitation will rarely be appropriate.”
Hyatt v. Heckler, 807 F.2d 376, 378 (4th Cir. 1986).
Generally, equitable tolling will apply only where a
plaintiff actively pursued her judicial remedies by filing a
defective pleading during the statutory period or allowed the
deadline to pass due to agency misconduct. Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
Equitable tolling does not extend to “a garden variety
claim of excusable neglect.” Id.
the plaintiff's burden to demonstrate that the statutory
period should be equitably tolled. See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); Gibbs v.
Barnhart, No. 2:04cv00056, 2005 WL 283205, at *2 (W.D.
Va. Feb. 7, 2005). This burden requires proof that some
extraordinary circumstance stood in the way of a plaintiff
diligently pursuing available appeal rights. Pace,
544 U.S. at 418. Equitable tolling requires “(1)
extraordinary circumstances; (2) beyond [the litigant's]
control or external to [the litigant's] own conduct; (3)
that prevented [the litigant] from filing on time.”
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
presumptively received notice of the Appeals Council's
denial of her request for review on May 9, 2017. Hash was
then required to file her complaint (or, alternatively,
request an extension from the Commissioner) by July 10,
2017. Hash filed her complaint on August 7,
2017-twenty-eight days after the statutory deadline.
Hash's complaint is time barred unless her delay is
otherwise excused by equitable tolling.
explains that she mailed her complaint to the court's
former post office box on June 30, 2018-well within the statutory
period-but it was returned as undeliverable. The return
envelope had the court's correct mailing address. Hash
then mailed her complaint to the court on August 3, 2017, and
it was filed four days later. Hash does not provide any
evidence as to when she received the return envelope, how
much time passed until she mailed her complaint again, or any
other circumstance which prevented her from timely filing her
improper mailing address is not an exceptional circumstance
justifying equitable tolling, but a simple mistake. Hash
never filed a defective pleading and was never subject to
agency or governmental misconduct. See Irwin, 498
U.S. at 96. The fact that she mailed her complaint to the
wrong address before the statutory deadline is immaterial,
equitable tolling does not apply to simple “excusable
complaint is time-barred having been filed twenty-eight days
after the statutory deadline, and exceptional circumstances
justifying equitable tolling are not present. Accordingly, I
GRANT the government's motion to dismiss
and I DISMISS this action.
 Hash had until Monday, July 10, 2017,
the first business day after the 60-day period expired, to
file her complaint in this court. See ...