Biron v. Harris, 80-1510
| Decision Date | 18 February 1982 |
| Docket Number | No. 80-1510,80-1510 |
| Citation | 668 F.2d 259 |
| Parties | John W. BIRON, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Randolph McCarthy, Jr., Kenneth Kobayashi, Kalamazoo, Mich., for plaintiff-appellant.
James S. Brady, U. S. Atty., Robert C. Greene, Asst. U. S. Atty., Grand Rapids, Mich., Randolph W. Gaines, Chief of Litigation, Andrew E. Wakshul, Atty., Dept. of Health, Ed. and Welfare, Baltimore, Md., Thomas Gezon, Washington, D. C., for defendant-appellee.
Before KENNEDY and MARTIN, Circuit Judges; and CECIL, Senior Circuit Judge.
In this Social Security action plaintiff-appellant Biron seeks reversal of the District Court's order granting the motion to dismiss of the defendant-appellee, Secretary of Health, Education and Welfare, for failing to file his action with the court in a timely manner. We here affirm that order, finding that this court is without power to waive the filing limitation missed by the plaintiff and furthermore finding that the Secretary did not waive the limitation by her consideration of additional materials submitted by the plaintiff after the final administrative decision denying Social Security benefits. The relevant facts of this case are these.
Following a negative determination of his claim for disability benefits, the plaintiff was given a hearing with respect thereto before an administrative law judge. A hearing decision, adverse to the plaintiff, was rendered on September 29, 1977, and a request was made that the decision be reviewed by the Appeals Council. On November 22, 1977, notice of that body's determination was sent to the plaintiff stating its conclusion that the hearing decision was correct and stood as the final decision of the Secretary. This letter further stated that a court review of the hearing decision could be obtained by commencing a civil action within sixty days. Plaintiff did not file suit, however, until May 26, 1978.
Plaintiff, nevertheless, insists that this action was filed in a timely manner. He bases this conclusion on a series of letters exchanged by the parties. In two letters, dated November 7, 1977, and November 10, 1977, the plaintiff sought to bring before the Appeals Council certain additional medical evidence relating to his claim for disability benefits. Although the letters were mailed before its November 22 decision, the evidence was apparently not considered by the Appeals Council in making its determination. The Appeals Council wrote to the plaintiff on January 25, 1978, and acknowledged receipt of the medical evidence submitted in November. The letter stated that such evidence "does not warrant a change in the administrative law judge's determination of September 29, 1977 which stands as the final decision of the Secretary."
On January 13, 1978, plaintiff also submitted the depositions of two physicians as additional evidence in support of plaintiff's claim for disability benefits. When no response was forthcoming, plaintiff wrote to the Appeals Council on April 26, 1978 to inquire whether the depositions would be considered. In a letter dated on May 9, 1978, the Appeals Council stated that the additional evidence "does not warrant a change in the administrative law judge's decision of September 29, 1977 which stands as the final decision of the Secretary." On May 25, 1978, plaintiff filed this action.
Contrary to ...
To continue reading
Request your trial
-
Roberts v. Shalala
...F.2d 76 (5th Cir. 1987); Dietsch v. Schweiker, 700 F.2d 865 (2d Cir.1983); Hunt v. Schweiker, 685 F.2d 121 (4th Cir.1982); Biron v. Harris, 668 F.2d 259 (6th Cir.1982); Peterson v. Califano, 631 F.2d 628 (9th Cir.1980); Teague v. Califano, 560 F.2d 615 (4th Cir.1977); Neighbors v. Secretary......
-
Galarza-Torres v. Comm'r of Soc. Sec.
... ... Thibodeaux v. Bowen , 819 ... F.2d 76, 79 (5th Cir. 1987) (per curiam); Biron v ... Harris , 668 F.2d 259 (6th Cir. 1982); Whipp v ... Weinberger , 505 F.2d 800 ... ...
-
Chiaradonna v. Schweiker
...forth in 42 U.S.C. § 405(g). Some Courts have characterized the 60-day time limit as jurisdictional. See, e.g., Biron v. Harris, 668 F.2d 259, 261 (6th Cir.1982) (per curiam); Whipp v. Weinberger, 505 F.2d 800 (6th Cir.1974) (per curiam). If the 60-day were a jurisdictional requisite, it wo......
-
Rivera v. R.R. Retirement Bd.
...Triplett v. Heckler, 767 F.2d 210 (5th Cir. 1985); Friddle v. Heckler , 720 F.2d 24 (8th Cir. 1983) (per curiam); Biron v. Harris , 668 F.2d 259 (6th Cir. 1982) (per curiam). In Banta, the Appeals Council sent the claimant a February 9, 1988 letter that denied her request for review of an a......