United States District Court, N.D. Mississippi, Greenville Division
CATHERINE DAVIS on behalf of R.R.T. PLAINTIFF
COMMISSIONER OF SOCIAL SECURITY DEFENDANT
M. BROWN, UNITED STATES DISTRICT JUDGE
the Court for consideration is United States Magistrate Judge
Roy Percy's recommendation that the Commissioner of
Social Security's motion to dismiss be granted. Doc. #12.
13, 2018, Catherine Davis, on behalf of R.R.T., a minor,
filed a pro se complaint challenging the Social Security
Administration's denial of benefits for
R.R.T. Doc. #1. On November 15, 2018, the
Commissioner of Social Security filed a motion to dismiss for
lack of subject matter jurisdiction based on the argument
that the appeal is untimely. Doc. #9. Davis did not respond
to the motion. On December 10, 2018, United States Magistrate
Judge Roy Percy issued a Report and Recommendation
(“R&R”) recommending that the motion be
granted. Doc. #12. Neither party filed objections to the
28 U.S.C § 636(b)(1)(C), “[a] judge of the court
shall make a de novo determination of those portions of the
report ... to which objection is made.” “[W]here
there is no objection, the Court need only determine whether
the report and recommendation is clearly erroneous or
contrary to law.” United States v. Alaniz, 278
F.Supp.3d 944, 948 (S.D. Tex. 2017) (citing United States
v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)).
seeking dismissal, the Commissioner of Social Security argues
that this Court lacks subject matter jurisdiction because
Davis failed to file her appeal within the sixty-day period
provided by 42 U.S.C. § 405(g) following a final
determination of benefits. Doc. #10 at 2-3. Although the
R&R noted that timely filing under § 405(g) is
non-jurisdictional, it concluded that dismissal for lack of
jurisdiction was appropriate. Doc. #12 at 2. Finding this
conclusion clearly erroneous, this Court disagrees.
405(g) provides, in relevant part:
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy, 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. Such action shall be brought in
the district court of the United States for the judicial
district in which the plaintiff resides, or has his principal
place of business, or, if he does not reside or have his
principal place of business within any such judicial
district, in the United States District Court for the
District of Columbia.
sixty-day limitation period operates as a statute of
limitations and is therefore non-jurisdictional. Bowen v.
City of N.Y., 476 U.S. 467, 479 & n.10 (1986).
Accordingly, Rule 12(b)(6), rather than Rule 12(b)(1) applies
to untimely social security appeals. See Ryan v.
Colvin, No. 4:14-cv-676, 2015 WL 7734124, at *1 n.1
(E.D. Tex. Nov. 30, 2015) (Rule 12(b)(1) did not ...