Fletcher v. Apfel

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).

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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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