Angel Osornio v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL OSORNIO,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-16306
D.C. No. 3:19-cv-08267-GMS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Submitted June 16, 2023 **
San Francisco, California
Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Angel Osornio appeals from the District Court’s summary judgment holding
that her complaint against the Commissioner of Social Security was untimely.
* 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).
FILED
JUN 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Because the facts are known to the parties, we repeat them only as necessary to
explain our decision.
Any individual may commence a civil action within sixty days of the mailing
to her of notice of the Commissioner’s final decision or within such further time as
the Commissioner may allow. 42 U.S.C. 405(g). Osornio does not dispute that she
failed to commence a civil action within the sixty-day deadline. She also did not
request an extension to the sixty-day period.
The District Court correctly declined to apply equitable tolling. “[A] litigant
seeking equitable tolling bears the burden of establishing two elements: (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Osornio failed
to demonstrate she pursued her rights diligently. Osornio does not dispute that she
received an Appeals Council letter informing her of the sixty-day deadline to file a
complaint in the District Court or request an extension. Despite this, Osornio failed
to file her complaint within the proscribed period. Furthermore, there is no evidence
that some extraordinary obstacle stood in her way preventing her from asserting her
rights. See 544 U.S. at 418.1
AFFIRMED.
1 Osornio’s motion to expedite settlement, Docket No. 16, and supplemental motion
to expedite settlement, Docket no. 17, are DENIED.

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