Davidson v. Secretary of Health, Education, & Welfare

53 F.R.D. 270, 15 Fed. R. Serv. 2d 864, 1971 U.S. Dist. LEXIS 11684

Opinion

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.

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.