Zeller v. Folsom, Civ. No. 6147.

Citation150 F. Supp. 615
Decision Date07 November 1956
Docket NumberCiv. No. 6147.
PartiesDaisy ZELLER and Leslie Zeller, Plaintiffs, v. Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York

John F. Kelly, Cohoes, N. Y., for plaintiffs.

Theodore F. Bowes, U. S. Atty., Syracuse, N. Y., Charles J. Miller, Asst. U. S. Atty., Syracuse, N. Y., of counsel, for defendant.

BRENNAN, Chief Judge.

This action involves a controversy relative to certain benefits claimed to be due the plaintiffs under the provisions of the Social Security Act. Plaintiffs have pursued the administrative procedures provided thereunder and a final decision was made which in effect denied the plaintiffs the relief sought.

The action is brought under the provisions of Title 42 U.S.C.A. § 405(g) to review the above decision which was made after a hearing. The above section provides that a party "* * * 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 Administrator may allow".

The decision here involved was mailed to the plaintiffs by registered mail on Apr. 13, 1956. Enclosed therewith was a letter, dated Apr. 13, 1956, from the Chairman of the Appeals Council, a part of which is as follows: "If you desire a review of the referee'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 sixty days from this date". This action was commenced by the filing of the complaint in the Clerk's office on June 13, 1956, F.R.Civ.P. 3, 28 U.S.C.A., sixty-one days from the date of the mailing of the notice of the decision.

The defendant's motion to dismiss is urged principally upon the ground that the court lacks jurisdiction over the subject matter of this action. The motion also seeks dismissal of the complaint upon the ground that it fails to state a claim upon which relief can be granted since it does not allege that the action was commenced within sixty days after the mailing of notice to the plaintiffs of the final decision.

Although the second contention would seem to be valid, Matheny v. Porter, 10 Cir., 158 F.2d 478; Berry v. Heller, D.C., 79 F.Supp. 476, such a defect could be cured by amendment and the decision here may better rest upon the determination of the question of jurisdiction.

No authority is necessary to support the statement that this action is in effect an action against the government and that its waiver of immunity from suit must be strictly construed.

The right of action here sought to be enforced is one created by statute and is limited by the provisions thereof as to the time within which the right must be asserted. Such provisions operate as a condition of liability rather than as a period of limitation. These principles are expressed in many reported cases. Coy v. Folsom, 3 Cir., 228 F. 2d 276, at page 279; Scott v. Railroad Retirement Board, 7 Cir., 227 F.2d 684; Leimer v. Woods, 8 Cir., 196 F.2d 828, at page 837; Ewing v. Risher, 10 Cir., 176 F.2d 641; Matheny v. Porter, supra; Berry v. Heller, supra. Where the government conditionally waives its immunity from suit,...

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29 cases
  • Fyfe v. Finch
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • April 14, 1970
    ...Small v. Cohen, 393 U.S. 984, 89 S.Ct. 456, 21 L.Ed.2d 444 (1968); Ewing v. Risher, 176 F.2d 641 (10th Cir. 1949); Zeller v. Folsom, 150 F.Supp. 615 (E.D.N.Y.1965); Frost v. Ewing, 13 F.R.D. 432 Plaintiff exhausted his administrative remedies with respect to his application of May 2, 1966, ......
  • Ro Ane v. Mathews
    • United States
    • U.S. District Court — Northern District of California
    • May 16, 1977
    ...suit against the Secretary constitutes a limited waiver of sovereign immunity and must be strictly construed. E.g., Zeller v. Folsom, 150 F.Supp. 615, 617 (N.D.N.Y.1956). Nor does it appear that the state and local officials are proper defendants. Plaintiffs have cited no case authority, an......
  • Chiaradonna v. Schweiker
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 25, 1983
    ...e.g., Wiss v. Weinberger, 415 F.Supp. 293 (E.D.Pa.1976) (1 day); Gaither v. Gardner, 295 F.Supp. 458 (Md.1969) (1 day); Zeller v. Folsom, 150 F.Supp. 615 (S.D.N.Y.1956) (1 day); Sverha v. Mathews, 408 F.Supp. 1064 (W.D.Pa.1976) (1 day); Richardson v. Secretary of HEW, 403 F.Supp. 1316 (E.D.......
  • Johnson v. Railway Express Agency, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 27, 1973
    ...of liability rather than as a period of limitation and there can be no recovery unless the condition precedent is fulfilled. Zeller v. Folsom, 150 F.Supp. 615, 617, N.D.N.Y.; Coy v. Folsom, 228 F.2d 276, 279-280, C.A. 3rd; Ewing v. Risher, 176 F.2d 641, C.A. 10th; Scott v. Railroad Retireme......
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