United States District Court, Northern District of Illinois, E.D
July 12, 1984
EZEKIEL CARTER, PLAINTIFF,
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Ezekiel Carter ("Carter") sues the Secretary of Health and
Human Services ("Secretary") under 42 U.S.C. § 405(g) ("Section
405(g)"), seeking judicial review of Secretary's decision denying
Carter's application for disability benefits. Secretary has moved
alternatively for dismissal or for summary judgment because
Carter did not file his complaint within 60 days after
Secretary's final decision, as required by Section 405(g). For
the reasons stated in this memorandum opinion and order,
Secretary's summary judgment motion is granted.*fn1
Carter applied for disability benefits November 21, 1981. After
his application was denied, he requested a hearing before an
Administrative Law Judge ("ALJ"). After a November 18, 1982
hearing, the ALJ issued his December 8, 1982 decision denying
Carter benefits. Two days later Carter requested review by the
Appeals Council. On March 21, 1983 the Appeals Council affirmed
the ALJ's decision, rendering it Secretary's final decision.
On August 9, 1983 Carter's newly-retained attorney requested
both the Appeals Council and the ALJ to reopen the case and hold
a new hearing. On August 22 Carter's attorney asked the Appeals
Council to extend the time to file this action. Carter received
no response and filed this action February 6, 1984.
On March 23, 1984 the ALJ informed Carter's attorney he was
reviewing Carter's file. On May 1 the ALJ's office advised
Carter's attorney "they are looking into whether or not they can
reopen for new hearing." Carter's attorney responded that was all
Carter wanted and this action would be dismissed if one were
afforded. Carter's attorney was then asked to send additional
medical records and did so the same day. Then on May 10 the ALJ
told Carter's attorney he had no jurisdiction to reopen the case
because this action was pending.
Carter has consistently maintained he is merely seeking a new
hearing with representation by counsel and a chance to present
evidence of his mental disability.
Carter also argues his mental disability prevented him from
seeking review of Secretary's decision in a timely manner.
Section 405(g) and Its Application
Section 405(g) provides in relevant part:
Any individual, after any final decision of the
Secretary 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 Secretary may allow.
Under Secretary's regulations (1) "mailing" is the date the
claimant receives the notice of the Appeals Council's decision
and (2) receipt is presumed to have occurred five days after the
notice's date unless the claimant makes a reasonable showing to
the contrary. 20 C.F.R. § 422.210(c). Thus Carter should have
filed this action no later than May 25, 1983 (65 days after March
Carter essays four means of escape from Section 405(g)'s
1. Secretary's inaction on Carter's requests to
reopen the case or extend the filing time is
tantamount to denial of those requests. Such denial
is an abuse of Secretary's discretion reviewable by
2. Secretary waived the 60-day time limit by
requesting the medical records.
3. Secretary's review of the additional material
was in effect a reopening of the case, starting the
time clock anew.
4. Carter should not have to comply with the 60-day
time limit because his mental illness prevented his
None of those contentions is supported by the authorities. Each
will be addressed in turn.
1. Reviewability of Secretary's "decision" to deny Carter's
requests to reopen and to extend time
Even if it is assumed Secretary's silence was equivalent to a
denial, case law teaches denials of requests to reopen are not
reviewable under Section 405(g), for they are not "final
decision[s] of the Secretary made after a hearing. . . ."
Califano v. Sanders, 430 U.S. 99
, 108, 97 S.Ct. 980, 985, 51
L.Ed.2d 192 (1977); Watters v. Harris, 656 F.2d 234
, 238-40 (7th
Cir. 1980). That rationale also applies to any denial of a
request to extend time. See Watters, 656 F.2d at 239 n. 10. And
Section 405(g) is the only potential basis for judicial review of
Secretary's decision to deny benefits. 42 U.S.C. § 405(h);
Sanders, 430 U.S. at 104-07, 97 S.Ct. at 983-85; cf. Lopez v.
Heckler, 725 F.2d 1489
, 1507-08 (9th Cir. 1984) (mandamus may be
available to require Secretary to comply with her own procedures,
but not to review the merits of the decision denying benefits).
Consequently it does Carter no good to make the assumption most
favorable to his position: that Secretary's non-response to his
lawyer's requests to reopen the case and extend the time for
filing was the same as a denial of those requests. This Court
would still be without jurisdiction to review those decisions.
2. Secretary's claimed "waiver" of the time limit
Carter's second argument is in the nature of an estoppel claim:
Because the ALJ asked for more evidence, Secretary should be
estopped from asserting the 60-day time limit. Carter relies on
Funderburk v. Califano, 432 F. Supp. 657, 659 (W.D.N.C. 1977),
where the Appeals Council requested more evidence three days
before expiration of the 60-day time limit (forcing the claimant
to choose between pursuing further administrative remedies and
instituting judicial action).
Estoppel against the government because of its employees' acts
is at best a doubtful proposition. See Heckler v. Community
Health Services of Crawford County, ___ U.S. ___, ___, 104 S.Ct.
2218-2223, 81 L.Ed.2d 42 (1984); id. at ___ - ___, 104 S.Ct. at
2227-28 (Rehnquist, J., concurring). But even on the most
favorable assumptions*fn2 Carter cannot invoke the Funderburk
precedent. After all the request for new evidence came May 1,
1984 — almost one year after the 60-day time period had expired,
and 3 months after this action was already on file. Carter has
(unsurprisingly) not even suggested any "reliance" on the ALJ's
much-later action as a reason for not having filed within the
allowable 60 days that had ended May 25, 1983.
In fact there is another flaw in Carter's assertion that a
request for additional evidence can be a waiver of the time
limit. If accepted, that notion would effectively circumvent the
established rule discussed in the preceding section: that denial
of a request to reopen a case is not a reviewable decision.
3. Secretary's claimed effective reopening of the case
Carter next argues the ALJ's review of additional evidence was
a reopening of the case, so the time for judicial review started
to run anew from May 1984. As with his prior contention (see n.
2), Carter reads far more into the facts than they reasonably
support. There is nothing at all to suggest the ALJ reviewed the
newly-provided medical records at all, as distinct from simply
deciding the ALJ "won't be able to reopen case because of pending
U.S. District Court Case" (Carter Mem. 3).
To rephrase the matter in terms the cases have dealt with,
Carter must demonstrate the ALJ's decision not to reopen the case
was based on a reconsideration of the merits. Tolbert v.
Secretary of Health and Human Services, 537 F. Supp. 631, 633
(N.D.Ill. 1982); see Funderburk, 432 F. Supp. at 658-59. No such
showing has been made. This argument too must fail.
4. Tolling the 60-day time period because of Carter's mental
If the 60-day time period is jurisdictional in nature, it would
of course not be subject to the principle of equitable tolling in
any event. But because the jurisdictional vel non question is the
subject of some controversy,*fn3
this Court will assume arguendo it
is not jurisdictional and can be waived:
1. by Secretary (Weinberger v. Salfi, 422 U.S. 749,
764, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975)) or
2. by the Court when matters of a constitutional
dimension are raised (Sanders, 430 U.S. at 108-09, 97
S.Ct. at 985-86; Lopez, 725 F.2d at 1505-07.
That however is not enough to save Carter, for he still cannot
invoke equitable tolling. Waivers of sovereign immunity are
strictly construed. Sims v. Heckler, 725 F.2d 1143
, 1145 (7th
Cir. 1984). There is a long line of cases*fn4
disability does not toll the limitations period against the
federal government (where the limitations statute itself contains
no tolling provision). See cases cited in Bassett v. Sterling
Drug, Inc., 578 F. Supp. 1244, 1246 (S.D.Ohio 1984). Carter's
final contention, like the rest, is unsuccessful.
There is no genuine issue of material fact, and Secretary is
entitled to a judgment as a matter of law. This action is
dismissed as untimely under Section 405(g).