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DUPREE v. RICHARDSON

August 19, 1970

Thomas DUPREE, Plaintiff,
v.
Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant


Gourley, Senior District Judge.


The opinion of the court was delivered by: GOURLEY

This is an appeal from the decision of the Referee of the United States Department of Health, Education and Welfare, Social Security Administration, holding that plaintiff is not totally and permanently disabled within the provisions of the Social Security Act. Jurisdiction of this Court is invoked under the provisions of Title 42, Section 405(g), United States Code, 42 U.S.C.A. § 405(g).

 The Court has heard the oral argument of counsel for the Secretary, has considered the brief of authorities presented, and the plaintiff presented no brief nor was an appearance made personally.

 The Complaint in this proceeding was filed in the Office of the Clerk of Court on the 1st day of June 1970, which was beyond the period of sixty days provided by law for an appeal of this nature.

 Judicial review of final decisions on claims arising under Title II of the Social Security Act is provided for and limited by Sections 205(g) and (h) of said Act (42 U.S.C.A. § 405(g) and (h)). The remedy provided by Section 205(g) is obviously exclusive. The relevant provisions read as follows:

 
"(g) 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. * * *
 
"(h) The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under § 41 of Title 28 (the section of the Judicial Code defining the jurisdiction of the Federal district courts which has been superseded by § 1331 et al. of new Title 28 U.S.C.A.) to recover on any claim arising under this sub-chapter." (Emphasis supplied.)

 The lack of jurisdiction of any court on any claim arising under Title II of the Social Security Act, except for judicial review in a timely action brought against the Secretary of Health, Education, and Welfare pursuant to section 205(g), would be just as clear even in the absence of the provisions of section 205(h) expressly denying any other jurisdiction.

 In McCrae v. Johnson, 84 F. Supp. 220 (D.C. Md., 1949), the Court said:

 
"It is, of course, well known that federal courts are courts of limited jurisdiction; and the United States District Court has only that jurisdiction which is expressly conferred by Act of Congress, and within the constitutional grant of power of Article 3 of the Federal Constitution. Therefore when the jurisdiction of the court is challenged it is always necessary to be able to point to some federal statute which confers the jurisdiction in the particular case. * * *"

 The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586-587, 61 S. Ct. 767, 85 L. Ed. 1058 (1941). In awarding a review of an administrative proceeding Congress has power to formulate the conditions under which resort to the courts may be had. American Power and Light Co. v. S.E.C., 325 U.S. 385, 389, 65 S. Ct. 1254, 89 L. Ed. 1683 (1945). Where a statute creates a right and provides a special remedy, that remedy is exclusive. United States v. Babcock, 250 U.S. 328, 331, 39 S. Ct. 464, 63 L. Ed. 1011 (1919).

 In N.L.R.B. v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S. Ct. 553, 554, 90 L. Ed. 739 (1946), the Supreme Court said:

 
"When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional ...

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