                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2111
                         ___________________________

                             Dennis Thomas Thompson,

                        lllllllllllllllllllllPlaintiff - Appellant,

                                            v.

                 Commissioner of Social Security Administration,

                        lllllllllllllllllllllDefendant - Appellee.
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: October 17, 2018
                               Filed: March 22, 2019
                                   ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

COLLOTON, Circuit Judge.

      Dennis Thompson filed a civil action in the district court challenging the Social
Security Commissioner’s denial of his application for disability insurance benefits.
The district court1 dismissed the action as untimely, and Thompson appeals. We


      1
       The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota, now retired, sitting by consent of the parties pursuant to 28
U.S.C. § 636(c).
conclude that Thompson is not entitled to equitable tolling of the time limit, and we
therefore affirm.

                                          I.

      In 2005, Dennis Thompson was diagnosed with a neurological disorder called
transverse myelitis and other conditions. He applied in 2013 for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 423. The Social
Security Administration denied Thompson’s application after a hearing before an
administrative law judge, and the Appeals Council denied review in a letter dated July
27, 2015. The letter included the following text:

      If You Disagree With Our Action

      If you disagree with our action, you may ask for court review only of the
      Administrative Law Judge’s decision concerning Supplemental Security
      Income by filing a civil action.

             ....

      How to File a Civil Action

      You may file a civil action (ask for court review) by filing a complaint
      in the United States District Court for the judicial district in which you
      live. The complaint should name the Commissioner of Social Security
      as the defendant and should include the Social Security number(s)
      shown at the top of this letter.

             ....

      Time To File a Civil Action

      C      You have 60 days to file a civil action (ask for court review).



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      C     The 60 days start the day after you receive this letter. We assume
            you received this letter 5 days after the date on it unless you show
            us that you did not receive it within the 5-day period.

      C     If you cannot file for court review within 60 days, you may ask
            the Appeals Council to extend your time to file. You must have
            a good reason for waiting more than 60 days to ask for court
            review. You must make the request in writing and give your
            reason(s) in the request.

      You must mail your request for more time to the Appeals Council at the
      address shown at the top of this notice.

      Thompson received a thirty-day extension of time on November 13, 2015. The
extension letter included the following language:

      The Council has now received your request for more time to file a civil
      action (ask for court review).

      We Are Giving You More Time to File a Civil Action

      The Appeals Council now extends the time within which you may file
      a civil action (ask for court review) for 30 days from the date you
      receive this letter. We assume that you received this letter 5 days after
      the date on it unless you show us that you did not receive it within the
      5-day period.

The extension gave Thompson until December 18, 2015, to file an action in his local
United States District Court.

       Thompson’s wife sent two letters on Thompson’s behalf before the deadline,
but she mailed both to the Social Security Administration rather than to the federal
district court. One sent on December 10 began, “Dear Appeals Court, I am writing
to respectfully disagree and appeal your decision regarding my disability and social


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security benefits.” The second sent on December 14 explained, “I am writing to add
to the appeal regarding my client’s disability status.”

        The Administration sent Mrs. Thompson a letter on January 6, 2016,
acknowledging receipt of her “second request for review” of the ALJ’s decision. The
letter noted that the Appeals Council had granted Thompson an extension of time “to
file a civil action in U.S. District Court,” but noted that he still had not done so. At
that point, Mrs. Thompson realized her mistake and made efforts to request another
extension. Mrs. Thompson says that she went back and forth with the Administration
after it repeatedly told her to wait until her December documents were “upload[ed]
into the system.” Mrs. Thompson eventually filed a pro se complaint on Thompson’s
behalf in federal district court on April 18, 2016.

      The Commissioner moved to dismiss the complaint for lack of jurisdiction,
arguing that Thompson failed to state a claim upon which relief could be granted.
The Commissioner maintained that Thompson’s action was untimely under 42 U.S.C.
§ 405(g), because it was filed after the extended deadline of December 18, 2015, and
equitable tolling was inappropriate. After considering a responsive affidavit from
Mrs. Thompson, the district court granted the motion, saying it was sympathetic to
Mrs. Thompson, but “d[id] not have jurisdiction over a time barred case.” Thompson
appealed; we appointed counsel for Thompson and ordered briefing on whether he
was entitled to equitable tolling. We have jurisdiction to address that question, see
Bowen v. City of New York, 476 U.S. 467, 478, 480 (1986), and we consider the issue
de novo. Bess v. Barnhart, 337 F.3d 988, 989 (8th Cir. 2003) (per curiam).

                                          II.

      “Generally, 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). Two other circuits have held that this two-part test from the habeas

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corpus context applies to equitable tolling of 42 U.S.C. § 405(g). See Jackson v.
Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007); Torres v. Barnhart, 417 F.3d 276, 279
(2d Cir. 2005). The parties embrace that approach here, so we apply it without
deciding whether an even stricter test might otherwise apply in a nonhabeas action.
Cf. Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 756 n.2 (2016).

       The Commissioner does not dispute that Thompson diligently pursued his
rights. The contested issue is whether an “extraordinary circumstance” kept
Thompson from timely filing an action in the district court. To meet this standard,
Thompson must show that an “external obstacle” prevented timely filing, for the test
from Pace “would make little sense if equitable tolling were available when a litigant
was responsible for its own delay.” Id. at 756. Thus, “the second prong of the
equitable tolling test is met only where the circumstances that caused a litigant’s
delay are both extraordinary and beyond its control.” Id.

        Thompson’s delay was not beyond his control. Correspondence from the
agency in July 2015 and November 2015 prominently stated that Thompson could
“ask for court review” by filing “a civil action.” The July notice letter specified that
Thompson should proceed by “filing a complaint in the United States District Court
for the judicial district” where he lives. Thompson does not dispute that he had the
capacity to appeal: he did ask for review, but he sent his request to the wrong entity.
Mrs. Thompson admitted that she simply made a mistake by sending the appeal to the
wrong place. But by overlooking the directions in the two letters, Thompson was
responsible for his own delay. There was no external obstacle that prevented a timely
filing.

       Thompson’s arguments in support of extraordinary circumstances are
unavailing. First, he relies on Burnett v. New York Central Railroad Co., 380 U.S.
424 (1965), and Herb v. Pitcairn, 325 U.S. 77 (1945), for the proposition that
equitable tolling applies where a claimant timely files in the wrong forum. We think
this characterization overstates the holdings. Neither Burnett nor Herb addressed the

                                          -5-
Social Security Act; in both cases, the plaintiff timely filed suit in a state court under
the Federal Employers Liability Act, but the state court was an improper venue. See
Burnett, 380 U.S. at 424-25; Herb, 325 U.S. at 78-79. In Herb, the complaint was
timely filed in state court, and the Court held it was not untimely if the state court
could transfer the action to a court with power to resolve it. 325 U.S. at 78-79. The
state court in Burnett lacked a mechanism to transfer the action to the proper venue,
but the Court nonetheless concluded the litigant was entitled to equitable tolling
because he had “brought an action within the statutory period in a state court of
competent jurisdiction.” 380 U.S. at 429. The rationale of these cases does not
extend to a situation like this one under § 405(g), where federal courts have exclusive
jurisdiction over a claim, and the complainant mistakenly corresponds with an agency
rather than a court of competent jurisdiction. See Jackson, 506 F.3d at 1357.
Thompson’s failure to file his appeal in the district court despite clear, repeated
instructions that he should do so “is at best a garden variety claim of excusable
neglect” for which equitable tolling is unavailable. Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990).

        Second, Thompson argues that his untimely filing was due to his mental
incapacity. “[T]he standard for tolling due to mental illness is a high one.” Lyons v.
Potter, 521 F.3d 981, 983 (8th Cir. 2008). A litigant seeking equitable tolling on that
ground must show that “a mental condition prevented him from understanding and
managing his affairs generally and from complying with the deadline he seeks to
toll.” Jessie v. Potter, 516 F.3d 709, 715 (8th Cir. 2008). Mrs. Thompson asserted
in the district court that Thompson suffers from mental health issues, but these
afflictions did not prevent him from complying with the deadline. He was able to
secure an extension of time and to send a pro se appeal and a follow-up letter, albeit
to the wrong address, before the extended deadline. Thompson’s ability to manage
his affairs to this extent, with the help of his wife, precludes an inference that
Thompson’s mental condition prevented him from sending an appeal to the district
court.


                                           -6-
       Finally, Thompson contends that “misdirection” by the agency in
communications during early 2016 is an extraordinary circumstance. That alleged
misdirection, however, occurred after Thompson already had missed the extended
deadline of December 18, 2015, to file his action in the district court. Whatever
additional delay the agency may have caused after the deadline did not prevent
Thompson from timely filing in the first place.

                                 *       *      *

      Thompson was not entitled to equitable tolling because no extraordinary
circumstance prevented him from timely filing an action in the district court. His
complaint was thus untimely, and the judgment of the district court is affirmed. The
court appreciates the efforts of appointed counsel in presenting the case for Mr.
Thompson.
                      ______________________________




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