Opinion
Proceeding on motion by the Secretary of Health, Education and Welfare to dismiss plaintiff's action to review denial of claim as untimely filed. The District Court, Daugherty, J., held that rule allowing three additional days within which a party required to do an act after service of a notice may perform that act if notice was served upon him by mail was not available to extend 60-day period within which plaintiff was required to file action to review appeals Council's denial of his claim under Social Security Act even though notice of the denial was served on plaintiff by mail.
Motion granted.
Marion M. Dyer, Tulsa, Okl., for plaintiff.
Nathan Graham, U.S. Atty., Oklahoma City, Okl., for defendant.
ORDER
DAUGHERTY, District Judge.
Defendant moves to dismiss Plaintiff's action for the reason the same was not filed within sixty days of the final decision of the Defendant, as required by 42 U.S.C.A. § 405(g) and (h). Plaintiff refers to Rule 6(e), F.R.Civ.P., 28 U.S.C.A. and asserts that as the notice of the Appeals Council denying his claim was served by mail, three days must be added to the period of sixty days and that therefore the action was timely filed. Plaintiff's assertion is not correct. Rule 82, F.R.Civ.P., 28 U.S.C.A. admits of no interpretation of the rules which will extend jurisdiction of this Court beyond its statutory limits. Rule 6(e) is not available to extend the sixty day period of time, which is a jurisdictional requirement. Ewing v. Risher, 176 F.2d 641 (Tenth Cir. 1949); Small v. Gardner, 390 F.2d 186 (First Cir. 1968). Even one day's delay in filing the action is fatal. Zeller v. Folsom, 150 F.Supp. 615 (N.Y.1956). However, even by Plaintiff's reckoning, this action was out of time. It was filed on June 15, 1971, sixty-four days after the decision of the Appeals Council was mailed to Plaintiff on April 12, 1971.
Defendant's Motion to Dismiss is granted, and Plaintiff's action is hereby dismissed.