CECIL R. SHOWS, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE
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The court held that the 60-day time limit for seeking judicial review of a Social Security Act disability benefit denial is waivable and not jurisdictional.
Cecil R. Shows sought judicial review of an administrative denial of disability benefits, but the district court dismissed his complaint sua sponte fo…
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PER CURIAM:
Cecil R. Shows’ complaint for judicial review of the administrative denial of disability insurance benefits under the Social Security Act was dismissed sua sponte prior to service on The Department of Health and Human Services. The court held it lacked jurisdiction since judicial review was not sought within 60 days of the Appeals Council decision. We reverse and remand, because the 60-day time limit specified in 42 U.S.C.A. § 405(g) is not jurisdictional and is waivable so that the Government must be served.
42 U.S.C.A. § 405(g) provides for judicial review of the Secretary’s final decision if the action is commenced within 60 days from receipt of the Appeals Council’s letter. An additional five-day period is provided for mail service. 20 C.F.R. § 422.-210. The Appeals Council letter is dated April 8, 1983. The 65-day period ended on Sunday, June 12,1983. Pursuant to Fed.R. Civ.P. 6(a), the period was extended to Monday, June 13, 1983. Shows filed his complaint in the district court on July 15, 1983 over a month after the period for commencing review had expired.
In Rowland v. Califano, 588 F. 2d 449, 450 & n. 2 (5th Cir.1979), this Court held that a complaint was erroneously dismissed on the ground that filing “outside the sixty day statutory time period deprived the Court of jurisdiction” where the issue of compliance was not raised in the district court. The court relied on the Supreme Court’s decisions in Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), which held the 60-day time period in § 405(g) to be a statute of limitations and waivable by the parties. See Hatchell v. Heckler, 708 F. 2d 578, 580 n. 1 (11th Cir.1983).
The district court erred in dismissing sua sponte the action prior to service. See Combee v. Shell Oil Co., 615 F. 2d 698, 700-01 (5th Cir.1980); Fed.R.Civ.P. 8(c).
REVERSED and REMANDED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stone v. Heckler, 778 F.2d 645 (11th Cir. 1985)…e 60 day time period provided for in 42 U.S.C.A. § 405(g) is not jurisdictional, but rather is a statute of limitations, Weinberger v. Salfi, 422 U.S. 749, 764, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Shows v. Dept. of Health and Human Services, 740 F. 2d 891 (11th Cir. 1984), the Secretary has not waived the limitations defense and Stone has asserted no grounds for equitable tolling or estoppel. . We note that the Secretary, having won the legal dispute in this case, may want to entertain a new motion…
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Triplett v. Heckler, 767 F.2d 210 (5th Cir. 1985)…rdingly, the parties may waive compliance with it. See Rowland v. Califano, 588 F. 2d 449, 450 & n. 2 (5th Cir.1979) (per curiam) (reversing dismissal because district court did not consider Eldridge and Salfi); accord Dep't of Health & Human Serv., 740 F. 2d 891, 891-92 (11th Cir.1984) (per curiam); Lopez v. Heckler, 725 F. 2d 1489, 1505 (9th Cir.), vacated and remanded, — U.S. -, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). Contra Hunt v. Schweiker, 685 F. 2d 121, 123 (4th Cir.1982) (“We hold that the 60-day re…
Authorities Cited
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976)
- Weinberger v. Salfi, 422 U.S. 749 (U.S. 1975)
- Combee v. Shell OIL Co., 615 F.2d 698 (5th Cir. 1980)
- Rowland v. Califano, 588 F.2d 449 (5th Cir. 1979)
- Carlyle W. Hatchell v. Heckler, 708 F.2d 578 (11th Cir. 1983)