Elijha Burke v. Nancy Berryhill
706 F. App'x 381
| 9th Cir. | 2017Background
- Elijha Malcome Burke sought judicial review after an ALJ denied Social Security child insurance benefits and SSI under Titles II and XVI.
- The Appeals Council issued a notice; Burke had 60 days to file a civil action under 42 U.S.C. § 405(g), subject to extension by the Appeals Council for good cause.
- Burke’s counsel faxed two requests to the Appeals Council seeking extensions; the Council granted the first request but did not receive the second faxed request.
- Burke filed his district-court complaint 17 days after the deadline tied to the first granted extension, and 5 days after the deadline his attorney had requested in the undelivered second request.
- The district court dismissed the action as time-barred; Burke appealed the dismissal to the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Appeals Council should have granted a second extension for filing under 42 U.S.C. § 405(g) | Burke argued counsel requested a second extension and relied on that request | Appeals Council said it did not receive the second request and had discretion to deny extensions absent good cause | Denial affirmed: Burke did not show good cause for a second extension |
| Whether equitable tolling applies to excuse the late filing | Burke argued equitable tolling or extraordinary circumstances prevented timely filing due to counsel’s difficulties | Commissioner argued Burke’s counsel failed to diligently pursue relief and did not follow Appeals Council instructions (mailed requests) | Equitable tolling denied: Burke failed to show diligence or extraordinary circumstances |
| Whether counsel’s method of transmission (fax) justified tolling | Burke argued reliance on faxing was reasonable and caused the delay | Commissioner argued the Notice required mailing and fax reliance was unreasonable | Court held reliance on fax was unreasonable; notice required mailing |
| Whether the untimely complaint would have been timely under the requested second extension | Burke asserted the requested later date would make filing timely | Commissioner noted Appeals Council did not receive the request and the actual filing date remained late | Court noted that even if second extension were granted to April 29, 2015, the complaint filed May 4, 2015 would still be untimely |
Key Cases Cited
- Ghanim v. Colvin, 763 F.3d 1154 (9th Cir. 2014) (standard of de novo review for mixed questions in Social Security appeals)
- Bowen v. City of New York, 476 U.S. 467 (1986) (equitable tolling and estoppel apply only in limited circumstances such as duress or fraudulent concealment)
- Vernon v. Heckler, 811 F.2d 1274 (9th Cir. 1987) (circumstances justifying tolling include duress, undue influence, or deceptive conduct)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (plaintiff seeking equitable tolling must show diligent pursuit of rights and extraordinary circumstances)