UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-20761
PAMELA FLETCHER,
Plaintiff-Appellant,
VERSUS
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
April 21, 2000
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Plaintiff-Appellant Pamela Fletcher(“Fletcher”) appeals from
the magistrate judge’s denial of her motion to reconsider its
summary judgment in favor of Defendant-Appellant Kenneth S. Apfel,
Commissioner of Social Security (“Commissioner”) due to the
untimely filing of Fletcher’s petition for review of the denial of
social security benefits under 42 U.S.C. § 405(g). For the reasons
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assigned, we AFFIRM the decision of the magistrate judge.1
I. FACTS AND PROCEEDINGS
Fletcher filed an application for disability insurance
benefits and supplemental security income on July 19, 1994 due to
claims of disability from back pain, arthritis in her knees,
asthma, high blood pressure, heart problems, irritable bowel
difficulties and vision loss. On November 24, 1995, the
Administrative Law Judge (“ALJ”) determined that, although Fletcher
suffers from multiple ailments and is incapable of performing her
past relevant work as a cook, she was ineligible for benefits in
that she was qualified to perform a significant number of sedentary
jobs. On February 20, 1997, the Appeals Council declined to review
the decision of the ALJ in that there was no basis for review under
the applicable regulations.
On March 31, 1997, Fletcher attempted to initiate a civil
action in the Southern District of Texas to review the denial of
benefits by filing an application for leave to proceed in forma
pauperis (“IFP”). The application to proceed IFP was denied on
April 2, 1997, although the rejection was not recorded by a docket
entry until April 7, 1997. On May 8, 1997, after Fletcher paid the
filing fee, the civil action was accordingly filed.
On October 6, 1997, the Commissioner filed a motion to dismiss
1
This case was heard before a magistrate judge under the consent
of both parties pursuant to 28 U.S.C. § 636(c).
2
the civil action as untimely under 42 U.S.C. § 405(g). The
magistrate judge granted the motion to dismiss on February 12, 1998
and final judgment was rendered for the Commissioner the same day.
On March 16, 1998, Fletcher filed a motion to reinstate the civil
action. The magistrate judge reinstated the case on March 31,
1998, and the Commissioner once again filed a motion to dismiss the
action as untimely, which the magistrate judge treated as a motion
for summary judgment. The magistrate judge granted the motion for
summary judgment on June 2, 1998 and entered final judgment for the
Commissioner on June 4, 1998. On June 15, Fletcher filed a motion
for reconsideration of the entry of summary judgment, which was
denied on July 22, 1998. Fletcher timely filed a notice of appeal
from the denial of the motion for reconsideration on August 20,
1998.
II. STANDARD OF REVIEW
Fletcher appeals from the magistrate judge’s denial of her
motion to reconsider the granting of summary judgment to the
Commissioner. A motion to reconsider “which challenges a prior
judgment on the merits will be treated as a [Federal Rule of Civil
Procedure] 59(e) motion if it is served within ten days after entry
of the judgment.” Trust Company Bank v. United States Gypsum Co.,
950 F.2d 1144, 1147 (5th Cir. 1992) (citing Teal v. Eagle Fleet,
Inc., 933 F.2d 341, 347 (5th Cir. 1991)). As Fletcher filed her
motion to reconsider on June 15, exactly ten days after the entry
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of judgment denying the motion to reconsider, the motion is
properly considered a Rule 59(e) motion. See FED.R.CIV.P. 6(a).
In general, a grant or denial of a Rule 59(e) motion is
reviewed for abuse of discretion. See, e.g., Southern Constructors
Group v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). This
general rule applies to a Rule 59(e) motion for a magistrate
judge’s ruling upon an issue within its discretion -- such as
whether to consider new evidence. See Ford Motor Credit Co. v.
Bright, 34 F.3d 322, 324 (5th Cir. 1994) (“If the party seeking
reconsideration attaches additional materials to its motion that
were not presented to the trial court for consideration at the time
the court initially considered the motion for summary judgment, the
court may consider the new materials in its discretion.”).
By way of contrast, if a party appeals from the denial of a
Rule 59(e) motion that is solely a motion to reconsider a judgment
on its merits, de novo review is appropriate because, interpreting
the notice of appeal liberally, “it is clear that the appealing
party intended to appeal the entire case.” Trust Company Bank, 950
F.2d at 1148 (citing Osterberger v. Relocation Realty Service
Corp., 921 F.2d 72, 73 (5th Cir. 1991)). To find otherwise would
be to significantly affect the appeal by employing an abuse of
discretion standard, which is proper when reviewing a magistrate
judge’s decision to marshal facts and determine whether it should
reconsider its decision, as opposed to a de novo standard which is
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proper when reviewing solely an issue of law. See id. at 1147 n.5.
Fletcher’s Rule 59(e) motion to reconsider asked the
magistrate judge to reconsider its decision that her civil action
was untimely because the statute of limitations had been tolled for
an additional three days under Federal Rule of Civil Procedure
6(e). The facts underlying this issue were undisputed. Fletcher
now comes before this court advancing the identical legal issue --
that the limitations period was tolled for an additional three days
under Rule 6(e). Thus, it is clear that Fletcher, although
nominally appealing the denial of the motion to reconsider,
intended to appeal the merits of the underlying judgment.
Accordingly, de novo review is proper.
III. DISCUSSION
The sole issue presented is whether Fletcher timely filed her
civil action. “Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he is
a party . . . 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
Commissioner of Social Security may allow.” 42 U.S.C. § 405(g)
(1999). “The [Commissioner] pursuant to its authority under §
405(g) to allow ‘further time’ for the commencement of civil
actions, promulgated 20 C.F.R. § 422.210(c)”. McCall v. Bowen, 832
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F.2d 862, 864 (5th Cir. 1987).2 In calculating this limitations
period, the magistrate judge found that the notice of decision was
mailed on February 22 and thus, applying the five day presumption,
began counting the period from February 27. However, no evidence
in the record indicates that the notice of decision was mailed to
Fletcher on a date other than February 20, 1997. By applying the
five-day presumption to February 20, Fletcher was deemed to have
received notice on February 25. Under the un-rebutted presumption
in section 422.210(c), the period thus began to run February 26.
Accordingly, the magistrate judge erred in his statement that the
notice was mailed on February 22 and in holding that the
limitations period began to run on February 28.3
Fletcher contends that if the limitations period is tolled
during the pendency of the IFP application and an additional three
days is added to the limitations period under Federal Rules of
2
“Any civil action described in paragraph (a) of this section
must be instituted within sixty days after the Appeals Council’s
notice of denial of request for review of the presiding officer’s
decision or notice of decision by the Appeals Council is received
by the individual, institution or agency, except that this time may
be extended by the Appeals Council on a showing of good cause. For
purposes of this section, the date of receipt of notice of denial
of request for review of the presiding officers’ decision or notice
of the decision of the Appeals Council shall be presumed to be five
days after the date of such notice, unless there is a reasonable
showing to the contrary.” 20 C.F.R. § 422.210(c) (2000).
3
Although there is no evidence in the record to support
Fletcher’s assertion and the magistrate judge’s conclusion that the
notice of decision was mailed February 22 rather than February 20,
the calculation of the limitations period may well be different if
such evidence were in the record, making for a stronger argument
that Fletcher’s civil action was timely filed.
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Civil Procedure 6(e) because the denial of IFP was mailed to her,
her suit would be timely filed on May 8. This circuit has not
previously addressed whether the limitations period is tolled
during the pendency of an unsuccessful application for IFP status.
We have held, however, that the period is tolled during a delay in
stamping a complaint “filed” in a case in which IFP status is
eventually granted. See, e.g., Ynclan v. Department of Air Force,
943 F.2d 1388, 1392-93 (5th Cir. 1991). This circuit has also held
that the sixty-day limitations period of section 405(g) is non-
jurisdictional. See Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir.
1990); Thibodeaux ex rel. Thibodeaux v. Bowen, 819 F.2d 76, 79 (5th
Cir. 1987). Other circuits that have addressed the question have
held that, because the limitations period is non-jurisdictional, it
is properly tolled during the pendency of an application for IFP
status and that three days are added under Rule 6(e) if notice of
denial of IFP is mailed. See Jarrett v. U.S. Sprint Communications
Co., 22 F.3d 256, 259 (10th Cir. 1994) (“we hold that the 90-day
limitation period was only tolled for those four days, and the
additional three days required by Fed.R.Civ.P. 6(e).”) (emphasis
added); see also Williams-Guice v. Board of Education, 45 F.3d 161,
164-65 (7th Cir. 1995).
Fletcher’s legal analysis may be correct, but we need not
decide the issue. Her contention that her civil action was timely
filed due to the tolling and grace period provisions assumes that
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the notice of decision was posted on February 22 and that the
limitations period in her case therefore began to run on February
28. Because the record evidence indicates that the notice was
mailed on February 20 and does not support any date other than
February 20 for the start of the limitations period, however, we
must begin the calculation of the limitations period as of that
date. Applying the five day presumption, tolling the period
pending IFP and extending the period three days under Rule 6(e),
the limitations period, starting February 26, expires on May 7.
Thus, Fletcher’s suit would not be timely filed even though the
period was tolled during the pendency of the IFP period and three
additional days were added under Rule 6(e), because Fletcher did
not file her civil action (by paying her filing fee) until May 8.
We therefore need not address whether the IFP period was tolled
pending the eventually denied IFP application or if three days are
added to the limitations period under Rule 6(e) because notice of
such denial was mailed.
IV. CONCLUSION
Because there is no evidence in the record supporting the
magistrate judge’s statement that notice was mailed on February 22,
1997 instead of February 20, or Fletcher’s contention that she
timely filed, the summary judgment entered for the Commissioner is
AFFIRMED.
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