Whipp v. Weinberger, 74-1475

• Decision Date: 02 December 1974
• Docket Number: No. 74-1475,74-1475
• Parties: Eugene WHIPP, Plaintiff-Appellee, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 800

505 F.2d 800

Eugene WHIPP, Plaintiff-Appellee, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 74-1475.

United States Court of Appeals, Sixth Circuit.

Dec. 2, 1974.

William W. Milligan, U.S. Atty., Arthur D. Jackson, Jr., Dayton, Ohio, Leonard Schaitman, Richard A. Olderman, Donald Etra, Carla A. Hills, Morton Hollander, Dept. of Justice, Washington, D.C., for defendant-appellant.

Eugene F. Whipp, in pro per.

Before PHILLIPS, Chief Judge, and PECK and McCREE, Circuit Judges.

PER CURIAM.

On September 8, 1972, the Appeals Council of the Social Security Administration, Department of Health, Education and Welfare, denied the appellee's application for disability benefits under the Social Security Act, 42 U.S.C. 416(i) and 423. This became the final decision of the Secretary. On November 8, 1972, sixty-one days after notice of this decision was mailed to the appellee, the action was filed in the District Court to review the Secretary's decision.

The District Court found that the sixty day filing limit for appeals from the Secretary's decision, imposed by 42 U.S.C. 405(g), ran from the time of actual receipt of the notice, rather than the time of mailing. Further, the District Court reversed the Secretary's findings and granted benefits to the appellee. We reverse and remand for dismissal without prejudice on the ground that the District Court did not have jurisdiction.

Final decisions of the Secretary are reviewable in the courts under a specific statutory grant found in 42 U.S.C. 405(g). This section provides:

'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.'

The following paragraph, 405(h), further cautions: 'No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided.' It is will established in this Circuit that the sixty day time limit is jurisdictional and that, as said by Judge Shackelford Miller, Jr.:

'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 conditions operate as a condition of liability rather than as a period of limitation and there can be no recovery unless the condition precedent is fulfilled.' Bomer v. Ribicoff, 304 F.2d 427, 429 (6th Cir. 1962).

If the request for review has not been filed within sixty days 'the right provided by the statute cease(s) to exist, and the present action (would be) properly dismissed.' Id.; see Johnson v. Railway Express Agency, Inc., 489 F.2d 525, 528 (6th Cir. 1973); Jamieson v. Folsom, 311 F.2d 506, 508 (7th Cir.), cert. denied, 374 U.S. 487, 83 S.Ct. 1868, 10 L.Ed.2d 1043 (1963). Other courts have dismissed applications for review of the Secretary's final decisions when the filing was one day late; Gaither v. Gardner, 295 F.Supp. 458 (D.Md.1969); Satterfield v. Celebrezze, 244 F.Supp. 190 (W.D.S.C.1965); Frost v. Ewing, 13 F.R.D. 432 (W.D.Pa.1953); or two days late, Tate v. United States, 437 F.2d 88 (9th Cir. 1971); but see Johnson v. Flemming, 264 F.2d 322 (10th Cir. 1959) (one day delay permitted if sixtieth day was a Sunday).

It is recognized that strict application of the time limit works a hardship on the unfortunate applicant who misses the deadline by one day. In other contexts a delay in filing might be tolerated. For example, Rule 6(e), Fed.R.Civ.P., adds three additional days to the length of a prescribed period if notice is served by mail. However, this provision has no application where, as in the present case, an extension of a time limit in effect would extend the jurisdiction of the court. Rule 82, Fed.R.Civ.P., makes it clear that the rules of procedure cannot be construed to reach such a result. Robinson v. Celebrezze, 237 F.Supp. 115 (E.D.Tenn.1964).

The Chairman of the Appeals Council stated in an affidavit that on September 8, 1972, the claimant was sent notice by...