Appeal from an Order of the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, Dismissing for Failure to Comply with the 60 Day Statute of Limitations Plaintiff's Challenge to the Secretary's Denial of Supplemental Security Income Disability Benefits.
Timbers, Van Graafeiland and Cardamone, Circuit Judges.
CARDAMONE, Circuit Judge:
Plaintiff Mikhail Matsibekker appeals from an order of the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, dismissing his claim for failure to comply with the applicable 60 day statute of limitations. Matsibekker had sought to challenge a final determination of the Social Security Administration (SSA) that found he was not entitled to Supplemental Security Income (SSI) benefits. The issues presented on this appeal are whether the limitations period did, in fact, expire and whether the federal courts have the authority to make such a determination. After careful consideration, we conclude that jurisdiction does exist and there was no sufficient showing that the statute of limitations started to run more than 60 days prior to the filing of this action. Accordingly, we reverse and remand for a determination on the merits.
The facts of this case are straightforward. Appellant Matsibekker filed an application for SSI disability benefits on January 11, 1981. Upon initial consideration this application was denied. Appellant then asked for and received a hearing before an Administrative Law Judge (ALJ), and on August 26, 1982 the ALJ issued a decision, again denying the application. Next, appellant sought review before the Appeals Council of the ALJ's decision. In a letter dated October 14, 1982 the Council denied review. The letter was not mailed until October 21, seven days later. It was sent by certified mail to appellant at his home address. Matsibekker asserts that he never received it and thus had not actual notice of the Appeals Council ruling until early January 1983 when he was visiting a Brooklyn office of the SSA for the purpose of filing a new claim for benefits. At that time he was personally advised of the decision.
The SSA referred appellant to the Legal Aid Society. Legal Aid told appellant that it was unable to represent him and that he should file a pro se complaint. Heeding this advice, appellant commenced the instant action by filing a complaint on January 21, 1983 in the district court. The government responded nearly four months later -- on May 13 -- with a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. In an affidavit accompanying its motion, the government contended that appellant failed to file his complaint within 60 days from the date of receipt of the Appeals Council's October 14, 1982 letter denying his request for review. In addition, the government indicated that since appellant had not requested an extension of the 60 day limitations period from the Appeals Council he was time barred from raising the claim in district court.
Following submission of papers by both parties and a brief argument on the motion, the district court rendered an oral decision from the bench. In essence, the district court accepted the government's position. Without making a finding as to when appellant was apprised of the Appeals Council denial of review, Judge Bramwell nevertheless ruled that the complaint was filed after the statute of limitations had expired. The district court then dismissed the complaint without prejudice to appellant to apply to the SSA for an extension of the filing period.*fn1 It is from this decision that Matsibekker appeals.
Judicial review of a determination made by the Secretary of Health and Human Services is controlled by Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), which provides in pertinent part:
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 decisions 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.
If this statute were our only guide, then the government could have successfully moved to dismiss Matsibekker's complaint by proving that the Appeals Council mailed notice of its decision on October 21, 1982 and that Matsibekker did not file in the district court until January 21, 1983.
The Secretary, however, pursuant to her authority under section 405(g) to allow "further time" for the commencement of civil actions, promulgated 20 C.F.R. § 422.210(c):
Any civil action described in paragraph (a) of this section [including the present action] must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council is received by the individual, institution, or agency, except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the presiding officer's decision or notice of the decision by the ...