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FEEKO v. WEINBERGER

October 3, 1973

Joseph L. FEEKO
v.
Caspar WEINBERGER, Secretary of Health, Education and Welfare


Troutman, District Judge.


The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 On November 16, 1971, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act. Plaintiff's claim was denied initially and upon reconsideration and on August 31, 1972, he filed a request for a hearing, which was scheduled for October 12, 1972. Upon his failure to appear at the initial hearing, the hearing was rescheduled for November 16, 1972. Several days later, plaintiff requested a postponement of the hearing on the ground that he was scheduled to appear at the final "Millionaire's Drawing" of the Pennsylvania State lottery. This request for a continuance, as well as two subsequent requests, were denied and plaintiff did not appear at the hearing as scheduled. On November 28, 1972, the Administrative Law Judge, upon a finding that the plaintiff's reason for his non-appearance was unacceptable, issued an Order of Dismissal of Request for Hearing on the ground of abandonment pursuant to 20 C.F.R. § 404.936. The Appeals Counsel denied plaintiff's request for review and, thereafter, plaintiff commenced this action.

 In plaintiff's complaint, which he denominates as an "appeal", jurisdiction is predicated on Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff's claim, succinctly stated, is that the decision of the Administrative Law Judge was arbitrary and capricious, thus constituting an abuse of his discretion. Plaintiff seeks to have the decision of the Administrative Law Judge set aside and to have the case remanded for hearing. Before the Court at this time are plaintiff's motion for summary judgment and defendant's motion to dismiss the complaint. The grounds upon which defendant bases the motion to dismiss are that plaintiff failed to exhaust his administrative remedies and that the decision of the Secretary was not arbitrary and capricious.

 Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), provides in pertinent part as follows:

 
"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 * * *".

 Thus, under a strictly literal reading of Section 205(g), three jurisdictional prerequisites must be satisfied before the Court may review a decision by the Secretary: (1) the civil action must be timely filed, i.e., it must be commenced within sixty days after the mailing to the claimant of the final decision of the Secretary or within such further time as the Secretary may allow; (2) the decision of the Secretary must be a final decision; and (3) the decision must have been made after a hearing to which the claimant was a party. In the instant case, defendant argues that since the hearing before the Administrative Law Judge was dismissed in this case, no "final decision" of the Secretary has been rendered and, accordingly, this case is not subject to judicial review pursuant to Section 205(g).

 Thus, the initial question before the Court is whether the Appeals Council's denial of plaintiff's request for review of the dismissal by the Administrative Law Judge constitutes a "final decision" of the Secretary within the meaning of the Act and its applicable regulations. The Administrative Law Judge dismissed plaintiff's request for a hearing by reason of abandonment pursuant to 20 C.F.R. § 404.936. 20 C.F.R. § 404.937b, pertaining to the effect of a dismissal of a request for hearing, provides as follows:

 
"The dismissal of a request for hearing shall be final and binding unless vacated. (see § 404.938)."

 Section 404.938 is concerned with the procedure by which the Appeals Council may vacate the dismissal of a request for a hearing. In the instant case, however, the Appeals Council denied plaintiff's request for review, and in that respect 20 C.F.R. § 404.940 provides in pertinent part as follows:

 
"If a party's request for review of the hearing examiner's decision is denied (see § 404.947) or is dismissed (see § 404.952), such decision shall be final and binding upon all parties to the hearing unless a civil action is filed in a district court of the United States * * *".

 Similarly, 202 C.F.R. § 404.951 provides that:

 
"The decision of the Appeals Council, or the decision of the hearing examiner where the request for review of such decision is denied (see § 404.947, shall be final and binding upon all parties to the hearing unless a civil action is filed in a district court of the United States * * *".

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