SSR 68-17c: SECTION 205(g). -- JUDICIAL REVIEW -- DISMISSAL OF REQUEST FOR REVIEW NOT TIMELY FILED

20 CFR 404.951 and 404.954

SSR 68-17c

BRAUNSTON v. GARDNER, U.S.D.C. W.D. Texas, Civil Action 66-12-EP (2-10-67)

Where plaintiff, following and adverse decision by a hearing examiner and review by the Appeals Council of the Social Security Administration denying his application for benefits, was furnished written notice of his right to initiate action in a Federal district court for review of the decision within 60 days after the mailing to him of notice thereof but who delayed filing of an action until 61 days after the mailing of notice, held, the decision of the Appeals Council is final and is not subject to judicial review, since the plaintiff failed to institute a civil action for judicial review within the time limit provided by section 205(g) of the Social Security Act; nor did the request of the Secretary a further extension of time under the Act.

[The Social Security Administration denied the claimant's application for old-age insurance benefits, initially and after reconsideration, for lack of insured status. A hearing was held before a hearing examiner of the Administration resulting in a decision adverse to the claimant. This decision, affirmed by the Appeals Council of the Social Security Administration, became the final decision of the Secretary in the matter. Written notice of the decision was sent by certified mail to the claimant on November 18, 1965.

[This letter to the claimant advised him as follows:

If you desire of the hearing examiner's decision by a court, you may commence a civil action in the district court of the United States in the judicial district in which you reside within (60) days from this date.

[Sixty-one (61) days later on January 18, 1966, the claimant filed an action for judicial review in the United States District court for the Western District of Texas, El Paso Division. The issue raised is whether the claimant requested a timely judicial review within the meaning of section 205(g) of the Social Security Act.

[In presenting the argument of the Social Security Administration before the court, it was the position of the Social Security Administration that judicial review of final decisions on claims arising under the Social Security Act is provided for and limited by sections 205(g) and (h) of the Act (42 U.S.C. 405(g) and (h)). The remedy provided by sections 205(g) and (h) is exclusive and its relevant provisions read as follows:

(g) Any individual, after any final decision of the Secretary 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 Secretary may allow. * * *

(h) The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fat or decisions of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. * * *. (Emphasis supplied.)

[There exist numerous case authorities which sustain the validity of sections 205(g) and (h), supra, holding that the only civil action permitted on any claim arising under the Social Security Act is an action to review the "final decision of the Secretary made after a hearing," and that such action must be commenced within 60 days after the mailing to him (the claimant) of notice of such decision or within such further time as the Secretary may allow.

[The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586- 587 (1941). In awarding a review of an administrative preceeding, Congress has power to formulate the conditions under which resort to the courts may be had. American Power and Light Co. v. S.E.C., 325 U.S. 584, 586-587 (1941). Where statute creates a right and provides a special remedy, that remedy is exclusive. United States v. Babcock, 250 U.S. 328 (1915).

[The question concerning the claimant's right to judicial review in this case is not unique or one of first impression. The matter has been litigated many times in other cases where, as here, the plaintiff failed to follow the statutory requirements and did not file his complaint seeking judicial review of the Secretary's decision within the sixty day allotted. There are at least three recent cases where, as in the present situation, the plaintiff filed his complaint for judicial review on the sixty- first day. In all three cases the court found it lacked jurisdiction and dismissed the plaintiff's complaint. See Knight v. Celebrezze, 238 F.Supp. 897 (1965); Zellor v. Folsom, 150 F.Supp. 615 (19656); Satterfield v. Celebrezze, 244 F.Supp. 190 (1965). In Satterfield, supra, Judge Hemphill cited the rule which has been followed in all such cases and stated:

Section 205(g) of the Social Security Act contains the sole jurisdictional basis for maintaining an action against the Secretary * * * for judicial review of a final decision * * * on a Title II claim. Congress has not waived the sovereign immunity from suit, except to the extent and in the manner provided in that section. Moreover, Congress expressly evidenced its intent to bar any other basis for jurisdiction of a civil action on such a claim by section 205(h) of the Social Security Act, quoted supra.

The complaint must show upon its face that it was filed "within sixty days after the mailing of notice to the plaintiff" or the claim is not cognizable. Saxon v. Celebrezze, 241 F.Supp. 152, 155 (W.D. S.C. 1965). See also Jamieson v. Folsom, 311 F.2d 506 (6th Cir. 1963), cert. denied 374 U.S. 487, Reh. Den. 375 U.S. 871.

[Additional authorities in support of the court's lack of authority to accept jurisdiction of a request not timely filed, are as follows:

Bomer v. Ribicoff, 304 F.2d 427;l Gross v. Celebrezze, 246 F.Supp. 66; Philip v. Ribicoff, 211 F.Supp. 510, affirmed 319 F.2d 530; Benjamin v. Ribicoff, 205 F.Supp. 532; and Robinson v. Celebrezze, 237 F.Supp. 115.

[Accordingly, the Secretary moved for summary judgment. On February 10, 1967, the District Court issued the following order.]

GUINS, District Judge:

On the 9th day of February, 1967 came on to be heard the Defendant's Motion for Summary Judgment and came the Defendant by its attorney and the Plaintiff and his attorney, though duly notified, failed to appear.

And the court having considered said motion and heard the argument and read the briefs of the defendant, finds that the plaintiff failed to commence an action within the time provided by law after the action of the Appeals Council.

And the Court therefore is the opinion that said Motion for Summary Judgment should be granted.

It is therefore Ordered, Adjudged and Decreed that Defendant's motion for Summary Judgment be and hereby is Granted and that the Plaintiff, JACK S. BRAUNSTON, take nothing.

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