Opinion
No. 61 C 115.
December 14, 1961.
Ernest Feldon, Chicago, Ill., for plaintiff.
James P. O'Brien, U.S. Atty., Chicago, Ill., for defendant.
Plaintiff's complaint, filed in this court on January 19, 1961, under 42 U.S.C. § 405(g), seeks review of a denial on November 3, 1960, by the Appeals Council, Social Security Administration, Department of Health, Education and Welfare of her request for review of a hearing examiner's decision.
Said Section 405(g) provides that —
"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. * * *" (Italics supplied)
This matter is now before the court on the motion of defendant Secretary to dismiss the action.
It is the view of this court that because it does not affirmatively appear from the face of the complaint that this action was commenced within the time prescribed by aforesaid Section 405(g), it should be dismissed (a) for failure of the complaint to state a claim upon which relief can be granted and (b) for lack of jurisdiction of this court over the subject matter of the action.
It is, therefore, ORDERED that the motion of defendant Secretary to dismiss this action be and it is hereby sustained and said action is dismissed (a) for failure of the complaint to state a claim upon which relief can be granted and (b) for lack of jurisdiction of this court over the subject matter of the action.