20 CFR 404.918, 404.937(c) and 404.954
ROSEN v. CELEBREZZE, U.S.D.C., N.D. of N.Y., Civ. No. 9430 (1/22/64) (CCH U.I.R. Fed. Par. 16,133)
[The Social Security Administration had disallowed the claimant's application for old-age insurance benefits, initially and after reconsideration, on the ground that he was not a partner in a business as he had alleged, could not therefore be credited with net earnings from self-employment by reason of such alleged partnership, and without such net earnings did not have fully insured status as required for entitlement to old-age insurance benefits. Notice of the reconsidered determination mailed to the claimant informed him that if he wished to appeal from the determination he must file a request for a hearing within 6 months after the date of mailing of the notice. He filed a request for a hearing 2 weeks after the end of the 6- month period, without showing good cause for the law filing and without requesting an extension of time for filing. A hearing examiner dismissed the claimant's request for hearing because the request was not timely filed, and the appeals Council denied review of such dismissal. The claimant thereupon instituted court proceedings seeking reversal of the decision denying him old-age insurance benefits.]
FOLEY, District Judge: This action is filed and specifically by the words of the complaint based upon the provisions of 42 U.S.C. 405(g), as amended, to review a final decision of the defendant Secretary. The motion to dismiss the action by the Secretary is on enumerated ground (1) the complaint fails to state a claim upon which relief can be granted; (2) the Court lacks jurisdiction over the subject matter, and (3) the plaintiff failed to timely exhaust his administrative remedies. The motion is sustainable, in my judgment, on each of the grounds. In my opinion, the motion must be granted no matter the view of this Court that the result may be considered in some respect unfortunate. Administrative hearing and court review are barred by failure of the plaintiff to request hearing by a hearing examiner within the time period prescribed by regulation of the Social Security Administration, mandated as a matter of right if timely. The lapse is a short period of two weeks.
It is undisputed that the request for the administrative hearing was not filed within the six-month period provided by the pertinent regulation after the Reconsideration Determination. This six-month period of limitation set forth in the Regulations is in accord with the statutory provisions of 42 U.S.C. 405(b) as amended. (See Hobby v. Hodges (1954), 10 Cir. 215 F.2d 754, 758-9). The dismissal of the request for hearing by the hearing examiner on the ground the same was untimely and no good cause was shown to excuse the failure to file within the six-month period, and the denial of request to review this dismissal by the Appeals council are all authorized by clear provisions of the pertinent administrative regulations.
The time limit period promulgated and the discretion to extend are within the rule-making power and judgment of the Secretary as vested and delegated by 42 U.S.C. 405(a), and reasonably consistent with the delegation of such authority by the Congress. (42 U.S.C. 405(a); Ford v. Ribicoff, (E.D. Tenn.), 199 F. Supp. 822, 828; see Lilly v. Grand Trunk R. Co., 317 U.S. 481, 483). This Court cannot direct or compel extension of time by the Secretary where discretion is conferred legislatively. (Bomer v. Ribicoff, 6 Cir. 304 F.2d 427, 429). Judicial power should never be exercised for the purpose of giving effect to the will of the judge. Osborn v. U.S. (1824), 9 Wheat. 204, 234 (22 U.S.)). The jurisdiction of the District Court to review in these matters is expressly limited by statute and particularly as it pertains to this matter, that jurisdiction is conferred to review a final decision of the Secretary made after a hearing. (42 U.S.C. 405(g), (h), italics mine). Inconsistency is claimed by the plaintiff concerning the statement of the Appeals Council in its final denial to open up the dismissal of the hearing examiner "that a formal review of the hearing examiner's action would result in no advantage to the claimant." However, I would think this position is creditable in that it indicates a careful examination of the record, containing a lengthy reconsideration determination denying the original application, before the drastic sanction of the six-month time limitation was maintained and the hearing refused (See Matteson v. U.S.., 2 Cir. 240 F.2d 517). The bar of a time limit preventing trial or hearing is always unpleasant to impose. The plaintiff, in the administrative procedures, was not acting without any advice or assistance inasmuch as he was represented by a Certified Public Accountant of New York. It is unnecessary to indulge on the merits, but the issue as to genuine partnership is usually factual or at best a mixed question of law and fact. (Morrison v. Commissioner, 2 Cir. 177 F.2d 351, 352; Singer v. Shaughnessey, 2 Cir. 193 F.2d 178; Lusthaus v. Commissioner, 327 U.S. 293; Commissioner v. Culbertson, 337 U.S. 733).
The motion to dismiss is granted upon the several grounds specified in the formal motion, and the action is dismissed.
It is so ordered.
 Under the provisions of 20 CFR 404.918 the request for hearing must be made in writing and filed within 6 months after the date on which notice of the reconsidered determination is mailed to the claimant. However, under 20 CFR 404.954, this time limitation may be extended upon petition made in writing and showing good cause therefor. 290 CFR 404.937(c) provides that where a party has failed to file timely a hearing request and the time for filing has not been extended, the hearing examiner may dismiss the request. [Ed.]
 42 U.S.C.A. 405(b) provides, in pertinent part: "* * * Any such request [for a hearing] . . . must be filed within such period after such decision as may be prescribed in regulations of the Secretary, except that the period so prescribed may not be less than six months after notice of such decision is mailed to the individual making such request." [Ed.]
 42 U.S.C.A. 405(g) 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 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. * * *" (Emphasis supplied.) 42 U.S.C.A. 405(h) provides, in pertinent part: "The findings and decision 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. * * *" [Ed.]
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