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)

[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:

[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:

[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.

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:

cial 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:

[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.