Elijha Burke v. Nancy Berryhill , 706 F. App'x 381 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIJHA MALCOME BURKE, No. 16-35165
Plaintiff-Appellant, D.C. No. 3:15-cv-05294-RSM
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted December 11, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges
Elijha Malcome Burke through counsel appeals the district court’s dismissal
of his case for failure to comply with the statute of limitations after an
administrative law judge (“ALJ”) concluded that Burke was not entitled to Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Security child insurance benefits and Supplemental Security Income under Titles II
and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and
we affirm.
Burke’s counsel faxed two requests to the Appeals Council to extend the 60-
day period for commencing a civil action under 42 U.S.C. 405(g). The Appeals
Council granted his first request and did not receive his second request. Burke filed
a civil action 17 days after the filing deadline following his first requested
extension, which was granted by the Appeals Council, and five days after the filing
deadline Burke’s attorney requested in the second extension request.
Sections 405(g) and (h) governs judicial review of final decisions issued by
the Commissioner of the Social Security Act, which provides that any individual
may commence a civil action within sixty days after the mailing to him of notice of
the Appeals Council’s decision or within such further time as the Commissioner of
Social Security may allow. 42 U.S.C. 405(g). The 60-day time limitation for
seeking judicial review of the ALJ’s decision can be extended in two ways. First,
the Appeals Council “may” extend the 60-day period “upon a showing of good
cause,” but that decision is within the Council’s discretion, and the Council is not
required to grant an extension. See 20 C.F.R. § 422.210(c). Second, traditional
equitable tolling or estoppel principles can toll the limitation period under certain
2 16-35165
circumstances, such as where the cause of action is based on duress or undue
influence; or the defendant fraudulently conceals the cause of action, affirmatively
misleads the plaintiff, or engages in misconduct or deception. Bowen v. City of
New York, 476 U.S. 467, 479-80 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277-
78 (9th Cir. 1987). Only in rare cases will the doctrine of equitable tolling allow a
plaintiff to avoid the statute of limitations. See Bowen, 476 U.S. at 480-81.
First, Burke did not show good cause for a second extension of time. Burke
did not demonstrate good cause; rather, Burke’s attorney located Burke nearly
three weeks before the April 17, 2015 deadline, obviating the reason provided for
the requested extension.
Second, equitable tolling should not apply. See Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). Burke failed to demonstrate he pursued his rights diligently.
Burke did not follow the instructions provided by the Appeals Council for
requesting an extension. He faxed his two requests for extensions to the Appeals
Council instead of mailing them as clearly indicated in the Notice of Appeals
Council Action dated December 16, 2014, and stamped “Received” by Talbot &
Associates on December 29, 2014. The continued reliance on fax was not
reasonable considering Burke’s attorney asserted he did not receive a response to
the first fax.
3 16-35165
Further, Burke fails to show an extraordinary circumstance prevented the
timely filing of the complaint. Burke’s attorney located Burke prior to the first
filing deadline granted by the Appeals Council, and the second deadline requested
by Burke’s attorney. Moreover, even if the Appeals Council had granted the
second requested extension until April 29, 2015, his complaint would still be
untimely because he filed it on May 4, 2015.
AFFIRMED.
4 16-35165