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WISS v. WEINBERGER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 17, 1976

CHARLES F. WISS
v.
CASPAR WEINBERGER, Secretary of Health, Education and Welfare, United States of America

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

 BECHTLE, J.

 Plaintiff brought this suit to obtain judicial review of a final decision of the Secretary of Health, Education and Welfare ("Secretary") which denied his claim for disability benefits under the Social Security Act, 42 U.S.C. § 301 et seq. The sole source of jurisdiction for a civil action challenging the denial of claimed benefits is 42 U.S.C. § 405(g). Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 899, 47 L. Ed. 2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). That statute requires, inter alia, that a suit of this type be "commenced within sixty days after the mailing" to the claimant of notice of the Secretary's adverse decision. *fn1" The notice in this case was mailed on April 18, 1975. *fn2" Accordingly, the 60-day time limit expired on June 17, 1975. Plaintiff's complaint was filed on June 18, 1975. *fn3" Defendant has filed a motion to dismiss the complaint for lack of jurisdiction. We will grant the motion. *fn4"

 While the 60-day statute of limitations contained in 42 U.S.C. § 405(g) is waivable by the parties, Weinberger v. Salfi, supra, 422 U.S. at 764, it is a restriction upon this Court's jurisdiction which may not be altered by judicial action. Whipp v. Weinberger, 505 F.2d 800 (6th Cir. 1974); Richardson v. Secretary of HEW, Social Security Administration, 403 F. Supp. 1316 (E.D.Pa. 1975). Even one day's delay in filing the action is fatal. Davidson v. Secretary of HEW, 53 F.R.D. 270, 271 (N.D. Okl. 1971); accord, Estep v. Weinberger, 405 F. Supp. 1097 (S.D.W.Va. 1976).

 Our dismissal of the complaint will be without prejudice to the right of plaintiff to petition the Appeals Council, pursuant to 20 CFR § 404.954 (1975), for an extension of time in which to commence a civil action in a district court. While we intimate no view as to how such a petition should be treated, we believe the circumstances of this case merit granting plaintiff the opportunity to seek such an extension.

 An appropriate Order will be entered.

 ORDER

 AND NOW, TO WIT, this 17th day of June, 1976, IT IS ORDERED that defendant's motion to dismiss the complaint is granted without prejudice to plaintiff's right to seek an extension of time in which to file a timely action, in accordance with the accompanying Memorandum.

 LOUIS C. BECHTLE, J.


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