                            NOT FOR PUBLICATION                              FILED
                     UNITED STATES COURT OF APPEALS                          DEC 13 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

ELIJHA MALCOME BURKE,                             No.   16-35165

                Plaintiff-Appellant,              D.C. No. 3:15-cv-05294-RSM

 v.
                                                  MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ricardo S. Martinez, Chief Judge, Presiding

                           Submitted December 11, 2017**


Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges

      Elijha Malcome Burke through counsel appeals the district court’s dismissal

of his case for failure to comply with the statute of limitations after an

administrative law judge (“ALJ”) concluded that Burke was not entitled to Social


      *
             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).
Security child insurance benefits and Supplemental Security Income under Titles II

and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and

we affirm.

      Burke’s counsel faxed two requests to the Appeals Council to extend the 60-

day period for commencing a civil action under 42 U.S.C. 405(g). The Appeals

Council granted his first request and did not receive his second request. Burke filed

a civil action 17 days after the filing deadline following his first requested

extension, which was granted by the Appeals Council, and five days after the filing

deadline Burke’s attorney requested in the second extension request.

      Sections 405(g) and (h) governs judicial review of final decisions issued by

the Commissioner of the Social Security Act, which provides that any individual

may commence a civil action within sixty days after the mailing to him of notice of

the Appeals Council’s decision or within such further time as the Commissioner of

Social Security may allow. 42 U.S.C. 405(g). The 60-day time limitation for

seeking judicial review of the ALJ’s decision can be extended in two ways. First,

the Appeals Council “may” extend the 60-day period “upon a showing of good

cause,” but that decision is within the Council’s discretion, and the Council is not

required to grant an extension. See 20 C.F.R. § 422.210(c). Second, traditional

equitable tolling or estoppel principles can toll the limitation period under certain


                                           2                                     16-35165
circumstances, such as where the cause of action is based on duress or undue

influence; or the defendant fraudulently conceals the cause of action, affirmatively

misleads the plaintiff, or engages in misconduct or deception. Bowen v. City of

New York, 476 U.S. 467, 479-80 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277-

78 (9th Cir. 1987). Only in rare cases will the doctrine of equitable tolling allow a

plaintiff to avoid the statute of limitations. See Bowen, 476 U.S. at 480-81.

       First, Burke did not show good cause for a second extension of time. Burke

did not demonstrate good cause; rather, Burke’s attorney located Burke nearly

three weeks before the April 17, 2015 deadline, obviating the reason provided for

the requested extension.

       Second, equitable tolling should not apply. See Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005). Burke failed to demonstrate he pursued his rights diligently.

Burke did not follow the instructions provided by the Appeals Council for

requesting an extension. He faxed his two requests for extensions to the Appeals

Council instead of mailing them as clearly indicated in the Notice of Appeals

Council Action dated December 16, 2014, and stamped “Received” by Talbot &

Associates on December 29, 2014. The continued reliance on fax was not

reasonable considering Burke’s attorney asserted he did not receive a response to

the first fax.




                                          3                                     16-35165
      Further, Burke fails to show an extraordinary circumstance prevented the

timely filing of the complaint. Burke’s attorney located Burke prior to the first

filing deadline granted by the Appeals Council, and the second deadline requested

by Burke’s attorney. Moreover, even if the Appeals Council had granted the

second requested extension until April 29, 2015, his complaint would still be

untimely because he filed it on May 4, 2015.

      AFFIRMED.




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