Davidson v. Secretary of Health, Education, & Welfare
Jewel J. DAVIDSON v. The SECRETARY OF HEALTH, EDUCATION, AND WELFARE
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
ORDER DAUGHERTY, District Judge.
Defendant moves to dismiss Plaintiff’s action for the reason the same was not filed within sixty days of the final decision of the Defendant, as required by 42 U.S.C.A. § 405 (g) and (h). Plaintiff refers to Rule 6(e), F.R.Civ.P., 28 U.S. C.A. and asserts that as the notice of the Appeals Council denying his claim was served by mail, three days must be added to the pei’iod of sixty days and that therefore the action was timely filed.
*271 Plaintiff’s assertion is not correct. Rule 82, F.R.Civ.P., 28 U.S.C.A. admits of no interpretation of the rules which will extend jurisdiction of this Court beyond its statutory limits. Rule 6(e) is not available to extend the sixty day period of time, which is a jurisdictional requirement. Ewing v. Risher, 176 F.2d 641 (Tenth Cir. 1949); Small v. Gardner, 390 F.2d 186 (First Cir. 1968). Even one day’s delay in filing the action is fatal. Zeller v. Folsom, 150 F.Supp. 615 (N.Y.1956). However, even by Plaintiff’s reckoning, this action was out of time. It was filed on June 15, 1971, sixty-four days after the decision of the Appeals Council was mailed to Plaintiff on April 12, 1971.
Defendant’s Motion to Dismiss is granted, and Plaintiff’s action is hereby dismissed.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 5 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.