Johnson v. Flemming

• Decision Date: 24 February 1959
• Docket Number: No. 5949.,5949.
• Citation: 264 F.2d 322
• Parties: Anna M. JOHNSON, Appellant, v. Arthur S. FLEMMING, Secretary of the Department of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

264 F.2d 322 (1959)

Anna M. JOHNSON, Appellant, v. Arthur S. FLEMMING, Secretary of the Department of Health, Education and Welfare, Appellee.

No. 5949.

United States Court of Appeals Tenth Circuit.

February 24, 1959.

Carl Johnson, for appellant.

William G. Walton, Asst. U. S. Atty., for Dist. of Wyoming, Cheyenne, Wyo. (John F. Raper, Jr., U. S. Atty., for Dist. of Wyoming, Cheyenne, Wyo., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

This is an appeal from a judgment of the District Court for the District of Wyoming denying to appellant, upon review under 42 U.S.C.A. § 405(g), a claim for old age insurance benefits sought under the Social Security Act, 42 U.S.C. A. § 301 et seq. The court below reviewed the merits of appellant's claims and by its judgment affirmed the decision of the Secretary of Health, Education and Welfare, finding that "the decision of the Board (Secretary) is supported by substantial evidence and such decision is conclusive upon this (trial) Court." The trial court also entered an order dismissing appellant's complaint because the claimant "failed to bring this action within sixty (60) days from the date of the mailing of the Administrator's decision."¹ Since the latter ruling, if correct, would be dispositive of the case upon jurisdictional grounds we first consider its basis.

The present claim of appellant for old age insurance benefits was filed January 26, 1955, and subsequently heard by a referee. From an adverse decision at that level appellant then sought review by the Appeals Council. The review was denied and appellant was so notified by letter dated February 27, 1957. Appellant filed the instant suit in the District Court on Monday, April 29, 1957, sixty-one days after the mailing of the notice of the final decision of the Secretary. The sixtieth day having fallen on a Sunday, the question is thus presented as to whether or not the filing was timely under the applicable statute, 42 U.S.C.A. § 405(g), supra. The general problem is a recurring one of many aspects both under Rule 6(a) Federal Rules of Civil Procedure, 28 U.S.C.A. and various statutes. However, it seems clear that the considerations of liberality and leniency which find expression in Rule 6(a), Prudential Oil & Minerals Co. v. Hamlin, 10 Cir., 261 F.2d 626, are applicable to statutory interpretation, Union Nat. Bank of Wichita, Kan. v. Lamb, 337 U.S. 38, 69 S.Ct. 911, 93 L.Ed. 1190, and as we stated in United States v. Peters, 220 F.2d 544, 546 "* * * while there is clear divergence of authority on the question, we share the view that in the absence of a controlling statute providing otherwise, when the last day of the period fixed for the doing of an act falls on Sunday, it may be done on the succeeding Monday." We conclude that the action filed pursuant to 42 U.S.C.A. § 405(g) was timely under the circumstances of this case; that the District Court had jurisdiction to review the decisions of the Secretary upon the merits; and that the instant appeal similarly encompasses a consideration of the merits of appellant's claim.

Appellant is a woman now eighty-two years of age. She first filed application for benefits from Social Security in October 1952, alleging entitlement by reason of self-employment earnings for 1951 and 1952 derived from a partnership, Arith-Matic Commercial Enterprise, formed with her two sons in 1951. Her claim was denied by the Secretary upon the ground that Arith-Matic was in fact the sole proprietorship of one of the sons, Carl, and that monies received by the claimant did not constitute net earnings from self-employment. The decision of the Secretary was affirmed as being supported by substantial evidence by the United States District Court (Wyoming), No. 3778 (not reported.) No appeal was taken to this Court and appellant's claims for Social Security benefits based upon alleged earnings in 1951 and 1952 have been determined adversely to her contentions and with finality. Hobby v. Hodges, 10 Cir., 215 F.2d 754. She now asserts that rights to coverage for six quarters within the years 1953 and 1954 have been obtained by her through employment as a domestic, as a bookkeeper's assistant, and through self-employment income received from Arith-Matic for these years. Her first two claims were denied by the Secretary as being sham upon determination that her alleged services as a domestic were rendered to a non-paying...