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SEALY v. SHALALA

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 10, 1994

PEARL SEALY, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 In this Social Security case brought under 42 U.S.C. 405(g) to review a decision of the Secretary of Health and Human Services denying disability benefits, the Secretary has moved to dismiss the complaint. The motion is denied.

 The Secretary's motion is based on alleged lack of subject matter jurisdiction on the ground that no final decision subject to judicial review exists, because plaintiff's request for agency appellate review was untimely. After receiving an adverse decision from an Administrative Law Judge on July 21, 1993, plaintiff requested Appeals Council review on November 3, 1993, notwithstanding a 60 day time limit on such appeals set forth in 20 CFR 422.210.

 II

 Administratively imposed time limits, while entitled to reasonable deference to achieve their objectives of avoiding lengthy delays prejudicial to agency functions, are subject to application in light of other legal principles such as inquiry into whether or not prejudice was caused, exemplified by but not limited to the harmless error rule set forth in Fed.R.Civ.P. 61. See Amberg v. FDIC, 934 F.2d 681 (4th Cir 1991). Where a legally unsophisticated citizen may not have understood the nature or importance of a deadline, a delay not long enough to cause prejudice may be excused. Bayer v. United States Dept. of the Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330 (DC Cir 1992); Wojik v. Postmaster General, 814 F. Supp. 8 (SDNY 1993). The importance of these principles to the administration of justice was recently reaffirmed in the Advisory Committee Notes to the 1993 amendments to Fed.R.App.P. 4(a)(4), describing the amendments as designed to avoid traps for the unwary created by former provisions relating to timeliness of appeals.

 The plaintiff should be afforded the opportunity to argue the merits, thereby enabling the court to determine whether the claim has sufficient merit to make strict application of the time limit unfair. Mathews v. Eldridge, 424 U.S. 319, 328-32, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).

 SO ORDERED.

 Dated: White Plains, N.Y.

 November 10, 1994

 VINCENT L. BRODERICK, U.S.D.J.

19941110

© 1992-2004 VersusLaw Inc.



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