Montgomery, Jordan v. Kijakazi, Kilolo

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JORDAN SCOTT MONTGOMERY,
Plaintiff, OPINION AND ORDER
v.
23-cv-740-wmc
MICHELLE KING,
Acting Commissioner of Social Security
Defendant.
Representing himself, plaintiff Jordan Scott Montgomery brings this civil action
under 42 U.S.C. § 405(g) seeking review the Social Security Appeals Council’s decision to
deny his request for review. Before this court is defendant’s motion to dismiss or, in the
alternative, for summary judgment. (Dkt. #7.) For the following reasons, the court will
grant defendant’s motion.
UNDISPUTED FACTS1
On November 23, 2022, an administrative law judge issued a decision denying
Montgomery’s claims for disability insurance benefits and supplemental security income.
(Dkt. #1-1.) Montgomery timely appealed this denial and on August 17, 2023, the
Appeals Council denied his review. (Dkt. #1-2.) The Appeals Council’s denial specifically
advised Montgomery that he had sixty days from receipt of its notice of denial to file a civil
action for review. Id. Sixty-two days later, on October 18, 2023, Montgomery began to
research where he must file his civil action. (Dkt. #10.) On October 20, 2023, Montgomery
1 As the parties have both submitted supporting affidavits, the court will examine this motion under
the standards for summary judgment. Unless otherwise noted, the court finds the following facts
to be material and undisputed.
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sent copies of his lawsuit by certified mail to three addresses, including this court. (Id.)
The court received and filed this civil action on October 24, 2023, some 68 days after
receipt of the Appeals Council’s denial. (Dkt. #1.)
OPINION
The court may grant summary judgment if the moving party “shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In deciding whether to grant summary judgment, the
court views all facts and draws all inferences in the light most favorable to the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A factual dispute can
preclude summary judgment, but only if the “facts might affect the outcome of the suit
under the governing law.” Id. at 248. The party moving for summary judgment carries the
initial burden of showing that there is no genuine issue of material fact and that it is
entitled to relief. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
I. Plaintiff’s Complaint is Untimely
Under 42 U.S.C. § 405(g), a Social Security claimant may obtain judicial review of
any final decision of the agency by filing a civil action within sixty days following notice of
the agency’s decision. The date of receipt of an Appeals Council action is presumed to be
five days after the date of such notice, unless shown otherwise. 20 C.F.R. § 404.901.
There is no genuine dispute of material fact that plaintiff filed this lawsuit late,
albeit by just one day. The Appeals Council sent a notice denying plaintiff’s request for
review on August 17, 2023. As a result, plaintiff is presumed to have notice of the decision
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five days later, on August 22, 2023. Plaintiff has neither claimed nor shown that he did
not receive the notice within the presumptive five-day period. Thus, plaintiff had until
October 21, 2023, to file his lawsuit. Since that date fell on a weekend, plaintiff had until
the next business day--Monday, October 23, 2023--to file his complaint. Fed. R. Civ. P.
6(a)(1)(C). Since this lawsuit was filed on October 24, 2023 -- one day late -- the civil
action was not timely filed.
II. Plaintiff is not Entitled to Equitable Tolling
Despite being untimely, there remains a question whether plaintiff is entitled to
equitable tolling, particularly given a one day delay. Bowen v. City of New York, 476 U.S.
467, 479 (1986). “Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) he has been pursuing his rights diligently; and (2) some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Equitable tolling “aids plaintiffs who, because of disability, irremediable lack of
information, or other circumstances beyond his control just cannot reasonably be expected
to sue in time. It does not provide aid to those plaintiffs who fail to research the
requirements of bringing a lawsuit.” Hoosier Bancorp of Indiana, Inc. v. Rasmussen, 90 F.3d
180, 183 (7th Cir. 1996) (internal citation and quotations omitted); see also Cada v. Baxter
Health Care Corp., 920 F.2d 446, 451 (7th Cir. 1990) (A plaintiff is only entitled to
equitable tolling of a statute of limitations “if, despite all due diligence, he is unable to obtain
vital information bearing on the existence of his claim.”) (emphasis added).
Unfortunately, plaintiff has not alleged any facts nor provided any evidence that he
was misled by the Appeals Council and points to nothing other than his pro se status as
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grounds for a failure to file this action timely. A pro se litigant’s pleadings are held to “less
stringent standards than formal pleadings drafted by lawyers.” Henderson v. Sheahan, 196
F.3d 839, 845 (7th Cir. 1999). However, a plaintiff’s pro se status at the time of filing does
not, standing alone, excuse compliance with procedural rules or justify equitable tolling.
See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Procedural
requirements established by Congress for gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for particular litigants.”).
Nor does the fact that plaintiff’s lawsuit is late by just one day influence this
analysis. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (holding that
a pleading filed one-day late was untimely, while explaining that “[f]oreclosing litigants
from bringing their claims because they missed the filing deadline . . . may seem harsh, but
courts have to draw lines somewhere [because] statutes of limitation protect important
social interests”); Wilson v. Doctors Hosp. of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill.
1996) (dismissing pro se plaintiff’s complaint filed one day after the statutory deadline);
Berg v. Bowen, 699 F. Supp. 184, 184-85 (S.D. Ind. 1988) (dismissing a social security
complaint filed two days later than the limitation period where the plaintiff provided no
showing that the notice of denial was not received within the presumptive five-day period
and failed to show any facts warranting equitable tolling of the limitations period). A pro
se plaintiff’s miscalculation of the limitations period likewise fails to constitute grounds for
tolling, because principles of equitable tolling “do not extend to what is at best a garden
variety claim of excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
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Having found that the civil action was not timely filed and plaintiff has proffered
no basis for equitable tolling, the court concludes that defendant is entitled to summary
judgment as to this action.
ORDER
IT IS ORDERED that:
1) Defendant’s motion to dismiss or, in the alternative, for summary judgment
(dkt. # 7) is GRANTED.
2) The clerk of court is directed to enter judgment for defendant and close this
case.
Entered this 29th day of December, 2025.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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