20 CFR 410.666 and 410.670a
ESTEP v. WEINBERGER, USDC, S.D. W.Va., Civ. No. 75-0105-CH (1/9/76)
HALL, District Judge:
This action seeking review of a final decision of the Secretary of Health, Education and Welfare, denying plaintiff's claim for black lung benefits pursuant to sections 411(a) and 412(a)(1) of the Federal Coal Mine Health and Safety Act of 1969, as amended. 30 U.S.C.A. §§ 921(a) and 922(a)(1). Review in this Court is based upon the provisions of 30 U.S.C.A. § 923(b), which expressly incorporates Section 205(g) and (h) of the Social Security Act. 42 U.S.C.A. § 405(g) and (h). The case is presently pending before the Court on a Motion to Dismiss filed by the defendant, the basis of said motion being that the action herein was not timely filed and therefor the Court lacks jurisdiction to review this case.
The relevant provisions of Section 205(g) and (h) provide as follows:
Attached to the defendant's Motion to Dismiss is an affidavit of Leonard N. Lawrence, Acting Chief of the Civil Branch of the Bureau of Hearings and Appeals, Social Security Administration, Department of Health, Education and Welfare. From this affidavit and the record as a whole, it is revealed that by letter of December 13, 1974, which was sent by certified mail to the plaintiff on the same day, the plaintiff was notified of the denial by the Appeals Council of his request for benefits. That letter (Exhibit No. 1 to the Government's motion) further stated: "If you desire a court review of the hearing decision, you may commence a civil action, within sixty (60) days from the date of this letter, in the district court of the United States in the judicial district in which you reside." (Emphasis added). A sixty (60) day period from December 13, 1974, ended on February 11, 1975, and the plaintiff filed this action on February 12, 1975.
The statutory provisions of section 405(g) are a precise statement of the time within which one can seek a review of a decision of the Secretary. It is further firmly established that this time limitation begins to run from the date of the mailing, not from the date of receipt of notice. Satterfield v. Celebrezze, 244 F.Supp. 190 (D.C. S.C. 1965); Mack v. Finch, 313 F.Supp. 378 (D.C. Pa. 1970). The sixty (60) day limit set forth in the statute must be met or the complaint must be dismissed for lack of jurisdiction. The Court of Appeals for the Sixth Circuit succinctly sums up this requirement in the case of Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), when it stated:
Specific, precise statutory language was created by Congress setting forth the time within which the plaintiff had to pursue judicial review of the Secretary's decision. Jurisdiction of this Court depends upon the plaintiff meeting the condition precedent of timely filing of his action for review. Though only one day late in filing, the plaintiff herein has placed this Court in the position of not having the jurisdiction to review his claim. Zeller v. Folsom, 150 F.Supp. 615 (D.C. N.Y. 1956); Knight v. Celebrezze, 238 F.Supp. 897 (D.C. S.C. 1965).
For the foregoing reasons, the defendant's Motion to Dismiss must be allowed and granted and this action be stricken and removed from the docket of this Court, and it is so ORDERED.
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