Bernardo A. TORRES, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee, 417 F.3d 276

Judge Jacobs joins the opinion and concurs in a separate opinion. RAKOFF, District Judge. In May 2002, the Appeals Council of the Social Security Administration (the “SSA”) denied appellant Bernardo Torres’ appeal from a denial by an Administrative Law Judge (“ALJ”) of Torres’ application for disability benefits under the Supplemental Security Income program. Torres had 60 days to challenge this denial by bringing a complaint in the district court, but it was not until October 17, 2002 that Torres, acting pro se, did so.

In response to the Government’s subsequent motion to dismiss Torres complaint for failure to meet the filing deadline, Torres submitted a sworn affidavit averring that he had been misled into believing that an attorney who was representing him before the SSA would be timely filing the complaint and that upon learning he had been misled he promptly filed his pro se complaint.

Although these allegations, if credited, might well have excused Torres’ untimeliness under the doctrine of “equitable tolling,” the district court, without holding an evidentia-ry hearing, granted the Government’s motion and dismissed the complaint. This was an abuse of discretion. Because no evidentiary hearing was held, we construe the facts most favorably to appellant. Torres’ native language is Spanish and he speaks English imperfectly. He filed his application for Social Security benefits on June 7, 2000 and received a hearing on August 8, 2001.

While waiting for the hearing to begin, Torres was approached by a lawyer, who gave him a business card. On December 21, 2001, the ALJ denied Torres’ claim. On January 2, 2002, Torres, pro se, appealed this decision, but on May 10, 2002, the Appeals Council denied the appeal. Notice of the denial was mailed to Torres on May 21, 2002 together with a letter advising Torres that he had 60 days from the date of his receipt of the letter to file suit in the district court. See 42 U.S.C. § 405(g).

Torres, still pro se, immediately contacted the Pro Se Office of the district court, which sent him the paperwork he needed to file his civil case. Torres received these papers on May 31, 2002, and completed them the same day; but, fearing that he might be making mistakes, he contacted the lawyer, told him that he “needed to file a [social security] case in federal court,” and asked the lawyer if the lawyer could assist him.

Torres further explained to the lawyer that he had “already gotten the papers from the court house and filled them out.” The lawyer agreed to assist Torres and directed Torres to send him the district court papers.

That same day (May 81), the lawyer sent Torres a letter that thanked Torres for “contacting me to assist you with your claim for Social Security disability benefits.” He enclosed a “Social Security Appointment of Representative form,” an authorization for release of medical records, and a Fee Agreement “which shows how we get paid if we win benefits for you.” Although the “Appointment of Representative” form pertained only to representation before the SSA (no such form being required to enter an appearance in federal court), the Fee Agreement expressly provided for payment if the client’s claim was granted by the SSA or “if the claim is awarded by the Appeals Council or by a Federal Court, or following án order for remand issued by the Social Security Administration or a Federal Court.” The cover letter from the lawyer instructed Torres to sign and return the appointment, release, and fee forms, which Torres did.

The letter further instructed Torres to send the lawyer “a copy of the letter from the Appeals Council and the envelope it came in,” as well as the forms Torres had received from the district court. Torres, after cheeking with the Pro Se Office of the district court and being advised that it was okay to forward to his lawyer the papers he had received from the Pro Se Office, did so. Finally, the lawyer’s letter instructed Torres to call the SSA, begin the process of starting a new claim, and then tell the lawyer “when your telephone interview is scheduled.” Again, Torres complied.

Given all this, Torres now believed that the lawyer was representing him on all fronts and that he need do nothing further. In early October 2002, the SSA informed Torres that his new claim had been rejected. Torres called the lawyer on October 11 to report this development. During that conversation, Torres asked about the progress of his district court case. The lawyer told Torres, for the first time, that the case had never been filed. His excuse was to claim that his representation of Torres was limited to pursuing the new claim before the SSA.

Torres immediately called the Pro Se Office of the district court and asked if he could still file the lawsuit. He was told he could, but that he would have to send a notarized statement explaining why his complaint was late.

Torres immediately filled out a Pro Se complaint and attached a statement justifying his delay as follows: I, Bernardo A Torres ... [cjertify and explain that I am filling and sending the following complaint against the commissioner of social security, the late due to that when I received the letter of the Appeals Council I thought that I needed an attorney in the moment of filling out said complaint, but someone helped me fill it out and told me that I didn’t need an attorney during the time of filling it out, and that I could had looked for one in the time of the hearing.

I hope that my application would be welcomed and to be excused for the lateness. The next day, appellant notarized his statement and mailed the package to the court. Although the papers were received by the court’s Pro Se Office on October 17, 2002, the Pro Se Office did not file Torres’ complaint with the district court until November 19, more than a month later. Once it was filed, the Government (as it typically does in such cases) sought two substantial delays of its time to move or answer.

In the interim, however, the Pro Se Office forwarded Torres’ explanation for the delay to the SSA’s Appeals Council, which has authority to grant extensions of the 60-day filing deadline in the district court. It does not appear that Torres was advised of this referral.

On April 22, 2003, the Appeals Council, deeming Torres’ statement as a request for an extension, denied the extension on the ground that “the Appeals Council did not inform you in its notice dated May 10, 2002, that you would need an attorney to file a complaint in the United States District Court.” Immediately thereafter, on April 28, 2003, the Government moved in the district court to dismiss the complaint for failure to timely file.

Counsel was appointed to represent Torres, and he responded on Torres’ behalf by asserting that the district court should apply the doctrine of equitable tolling to excuse the tardy filing. Included in the papers was a sworn affidavit from Torres asserting the foregoing facts. The motion papers also requested that, if the Government contested Torres’ factual assertions (as it subsequently did), the Court should hold an evidentiary hearing. In a Memorandum Opinion and Order dated November 21, 2003, the district court acknowledged that the 60-day filing requirement is subject to equitable tolling, see Bowen v.

City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), and that, given the nature of social security, equitable tolling of the limitations period is “not infrequently appropriate.” See State of New York v. Sullivan, 906 F.2d 910, 917 (2d Cir.1990). However, equitable tolling requires a showing of both extraordinary circumstances and due diligence. Here, the district court concluded, Torres’ mistaken belief that an attorney was representing him did not constitute extraordinary circumstances, especially given his failure to exercise due diligence to make sure the attorney filed the complaint.

Accordingly, the district court dismissed the complaint. As the district court noted, the doctrine of equitable tolling permits courts to deem filings timely where a litigant can show that “he has been pursuing his rights diligently” and that “some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, — U.S. -, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). Since the district court recognized the correct legal standard, we review its application of that standard to determine if there has been an abuse of discretion. Alli-Balogun v. United States, 281 F.3d 362, 367-68 (2d Cir.2002).

Here, we are reluctantly led to the conclusion that the district court’s failure to conduct an evidentiary hearing was such an abuse, since Torres’ sworn aver-ments of fact, though disputed, meet the legal standards for equitable tolling. As to diligence, it is hard to imagine a more diligent pro se litigant than Torres. He correctly filed his original SSA petition and showed up for his hearing. When his claim was denied by the ALJ, he filed his appeal within days.

When his appeal was denied by the Appeals Council, he, again within days, obtained the necessary paperwork for his district court filing, filled it out, and, to make sure he was not making any mistakes, sought an attorney’s assistance. When later he learned that the lawyer had not filed his complaint, he immediately contacted the Pro Se Office to find out his options, and within a few days submitted his complaint.

Given Torres’ consistent record of diligence in this case over a period of more than two years, it was unreasonable for the district court to conclude, without benefit of an evidentiary hearing, that Torres failed to exercise due diligence simply because he failed to ask the lawyer to confirm that the complaint had been timely filed.

In his cover letter to Torres, the lawyer had specifically asked Torres to send him, not only the district court complaint forms that Torres had already filled out, but also the denial of Torres’ claim by the Appeals Council “and the envelope it came in.” The only logical reason for this last request was to see the date on which the denial was mailed, so as to determine the 60-day period, which begins running on the date the Appeals Council’s denial is received by the applicant. See 20 C.F.R. § 422.210(c).

Accordingly, Torres had every reason to believe that the lawyer was sensitive to the timing issue and would timely file the complaint. See Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir.2003) (“The standard is not ‘extreme diligence’ or ‘exceptional diligence,’ it is reasonable diligence”). Indeed, it was the manner in which the lawyer misled Torres, even if unintentionally, that constitutes the “extraordinary circumstances” that render this case appropriate for equitable tolling.

When he first called the lawyer, Torres (contrary to the district court’s suggestion) specifically stated that he needed help in filing a case in federal court. The lawyer orally stated he would help and then, both orally and in writing, requested that Torres send him the documents he would need to file the complaint, including the Appeals Council denial of the claim, the envelope it came in, and Torres’ filled out draft of the federal complaint. Moreover, his fee letter, which he also instructed Torres to sign and return, expressly referred to representation in federal court as well as before the SSA.

As the district court noted, the failure of a retained attorney to timely file a federal social security complaint does not necessarily constitute an “extraordinary circumstance” warranting equitable tolling, see Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001) (per curiam). But this pales in comparison to a case where, as here, a litigant, on the verge of timely filing his own pro se complaint, reasonably believes that an attorney, fully cognizant of the time constraints, has agreed to assist him in filing, only to learn later that the attorney has done nothing at all.

See Baldayaque, 338 F.3d at 152 (finding “extraordinary circumstances” where “[i]n spite of being specifically directed by his client’s representatives to file a ‘2255,’ [the attorney] failed to file such a petition at all” and instead pursued a different litigation initiative).

What the district court failed to appreciate is that, if Torres’ averments are credited, he presents the case of a legally-ignorant, linguistically-challenged pro se claimant who nonetheless did everything possible to try to assert his claim in timely fashion and was only stymied from so doing by being seriously misled by an attorney in whom he placed his trust. This states at least enough to warrant an evi-dentiary hearing into whether equitable tolling should be invoked.

Accordingly, the district court’s dismissal of Torres’ complaint for failure to file in timely fashion is vacated, and the case is remanded for further proceedings consistent with this opinion.