'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 provisions operate as a condition of liability rather than as a period of limitation.' Zeller v. Folsom (N.D.N.Y.1956), 150 F.Supp. 615, 617.
Plaintiff takes the position that the final administrative decision was rendered on November 7, 1961, when the Appeals Council denied plaintiff's request for review of the hearing examiner's denial of benefits. If plaintiff is correct, the complaint, having been filed on November 30, 1961, was well within the sixty-day limitation. The Government, however, argues that the sixty-day statutory period ran not from November 7, 1961, but from the decision of the Secretary, dated September 6, 1960, when the final order was entered denying her benefits. We have already found that the facts contained in the December 2, 1960 application requesting benefits were the same as those involved in the first application. To sustain plaintiff's position under such circumstances, it would appear that a plaintiff could defeat the definitely stated limitation by repeatedly filing applications based on the same set of facts. This would appear to us to be wholly inconsistent with the very positive provisions set forth in the Act of Congress.
The defendant also calls our attention to Section 205(h) of the Act, which states that:
'No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided.'
Also, Section 205(a) provides that:
'The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions * * *.'
More particularly, the provisions of Social Security Administration Regulation (20 C.F.R., Section 404.937), inter alia, are as follows:
'* * * (a) Res judicata. Where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, upon the claimant's failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision.'
The action of the Appeals Council dismissing plaintiff's request is not a final decision of the Secretary of Health, Education and Welfare within the meaning of Section 205(g) and is not reviewable. Hatter v. Ribicoff, 199 F.Supp. 654 (D.C.Okl.1961).
The issue as we see it, harsh though it may be, is whether or not under the terms of this Act, when the original hearing examiner denied the application, and the Secretary denied the request for review, an appeal should have been taken to this Court within sixty days from that date as clearly expressed to the plaintiff at that time, or whether having failed to do so plaintiff could at a later date reapply on the same facts, thus avoiding the definite limitation provisions of the Act. No case of precisely the same facts has been presented to us, but we are of the opinion that the sixty-day period of limitation ran from the original decision and it could not be thwarted by a later application unless the second application was based on facts dissimilar from those contained in the original application or which might conceivably consist of a different work period having evolved since the original application. Accordingly, the following order is entered:
AND NOW, this 13th day of December, 1962, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment is Denied;
2. Plaintiff's motion for judgment by default is Denied; and
3. Defendant's motion for summary judgment is Granted.
© 1992-2004 VersusLaw Inc.