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SVERHA v. MATHEWS

February 18, 1976

GEORGE SVERHA
v.
DAVID MATHEWS, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: GORBEY

 GORBEY, J.

 Defendant has moved to dismiss or in the alternative for summary judgment. The motion is supported by a memorandum of law and the affidavit of Paul R. Muller, Chief of the Civil Actions Branch of the Bureau of Hearings and Appeals, Social Security Administration, Department of Health, Education and Welfare.

 
"(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 decisions 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 section 41 of Title 28 (the section of the Judicial Code defining the jurisdiction of the Federal district courts which has been superseded by section 1331 et seq. of new Title 28 U.S.C.A.) to recover on any claim arising under this subchapter." (Emphasis supplied)

 The lack of jurisdiction of any court on any claim arising under Part B, Title IV of the 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.

 The pertinent facts are set forth in the aforementioned affidavit. A portion thereof reads as follows:

 
". . . The official file maintained by the Bureau of Hearings and Appeals relating to the claim of the plaintiff, George Sverha, under title IV, Part B, of the Federal Coal Mine Health and Safety Act of 1969, as amended, is presently within my legal custody and possession and has been examined under my supervision. To the best of my knowledge and belief said file shows that:
 
"(a) On March 20, 1975, a hearing decision was rendered and a copy was mailed to the plaintiff. Thereafter, the plaintiff requested review of this decision. On July 17, 1975, the Appeals Council sent, by certified mail addressed to the plaintiff at Buck Mountain Road, Barnesville, Pennsylvania 18214, notice of its action on the plaintiff's request for review and of his right to commence a civil action within sixty (60) days (Exhibit 1).
 
"(b) No extension of the sixty (60) days' time specified in said notice (and in section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. section 405(g)) for the commencement of a civil action was ever granted to the plaintiff nor did he ever file such request for an extension of time for the commencement of such action.
 
"(c) On September 16, 1975, a civil action was filed in the United States District Court for the Eastern District of Pennsylvania."

 It thus appears that the crucial dates are July 17, 1975, the date of mailing by Certified Mail, of the action taken on plaintiff's request for review and of his right to commence a civil action within 60 days of the date of mailing said notice, a copy of which notice is attached to the affidavit as Exhibit 1, and September 16, 1975, the date the civil action was commenced in the United States District court for the Eastern District of Pennsylvania. It thus appears that the action was commenced on the 61st day after the date of mailing the notice, and is, therefore, untimely.

 Plaintiff has filed no response to defendant's motion, and no memorandum of law in opposition to the motion. The court is, however, in receipt of a letter from ...


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