It is accordingly held that A was not "without fault" within the meaning of the regulations cited above in incurring the deduction overpayment made here and that recovery of the overpayment may not be waived. ADMINISTRATIVE Page Correction of Earnings Record Effect of State ex parte determination on findings of Secretary 333 Dismissal of request for review not timely filed Time limitation for filing request for hearing-Extension for good cause-- United States District Court 335 337 341 343 Finality of decision-New and material evidence of disability— Res judicata 346 Finality of decision-Res judicata 351 Finality of decision-Correction of earnings record after expiration of 356 Finality of decision-Reopening on basis of new and material evidence- 358 Judicial review—Appeal from Administration's refusal to reopen prior final decision 360 Judicial review-Attorney's fee fixed by Administration 363 365 Representation of claimant in court proceedings-Fixing amount of 367 Representation of claimant-Attorney's fees-Authority to regulate and 371 Appeal from Administration's refusal to reopen prior final decision Where the claimant's earnings record showed self-employment income credited to his account for the years 1960 through 1962; where the claimant also had reported self-employment income for 1959 on his tax return, but such income was not credited to his account; and where an investigation was initiated on May 1, 1964, as a result of which it was determined that the claimant's income for all 4 years was excludable from net earnings from selfemployment, held, the claimant's social security earnings record may be corrected by deleting the erroneous entries for the years 1961 and 1962 because the time limitation (3 years, 3 months, and 15 days) following those years had not expired; however, the amount entered for 1960 may not be deleted because the time limitation following that year had expired. Further held, since the claimant's income for 1959 (which had not been credited to his account) was excluded from net earnings from self-employment, such income may not be entered on the records of the Administration. For the taxable years 1959 through 1962, the claimant filed timely tax returns reporting, as self-employment income, the income he received from an office building in which he had an ownership interest. His reported income for 1960, 1961, and 1962 was credited on the records of the Administration but no entry was made for 1959. On May 1, 1964, the Administration began an investigation, in view of varying descriptions of the nature of claimant's real estate activity in his tax returns, to determine whether the reported income constituted self-employment income. The investigation was actively pursued and it was subsequently determined that the claimant's income from the building constituted "rentals from real estate" and, since it was not recived by the claimant in the course of a trade or business as a real estate dealer, was excluded from net earnings from self-employment. In view of this determination, the first question presented is whether the amounts entered on the records of the Administration to the claimant's account for the years 1960, 1961, and 1962 may be deleted. As pertinent to this question, section 205(c) (4) of the Act provides that prior to the expiration of the time limitation (a period of 3 years, 3 months, and 15 days) following a taxable year, the Secretary may correct an entry of self-employment income for such year, if it is brought to his attention that such entry is erroneous. The Secretary may, pursuant to these provisions, delete the erroneous entries for the 1961 and 1962 taxable years because the investigation regarding the correctness of the entries began before the expiration of the time limitation with respect to such years. The time limitation with respect to the taxable year 1960, however, had expired and, therefore, the posted earnings for that year may not be deleted from the earnings record. The second question is whether the Secretary is required to make an entry on his records for 1959, to credit the noncovered earnings which the claimant had reported by a timely filed tax return for that year. Section 205 (c) (5) of the Act, as pertinent thereto, provides inter alia, that after the expiration of the time limitation following any year in which self-employment income was derived or alleged to have been derived by an individual, the Secretary may revise his records to include any omitted items of self-employment income to conform such records to tax returns or portions thereof (including information returns and other written statements) filed with the Commissioner of Internal Revenue under chapter 2 of the Internal Revenue Code of 1954, "Tax on Self-Employment Income," provided that such return or statement was filed prior to the expiration of the time limitation following the taxable year. If the amount reported on the claimant's 1959 tax return had constituted self-employment income, the earnings record, pursuant to section 205 (c) (5), could be revised to conform such record to the return. However, the Act does not require the Secretary to post any amount as self-employment income for 1959 when it does not appear that the claimant had any taxable self-employment income for 1959 and was never entitled to have any amounts recorded as such. Accordingly, it is held that the amounts erroneously entered on the records of the Administration to the claimant's account for 1961 and 1962 may be deleted, but that the amount entered for 1960 may not be deleted. Further held, that since the claimant's income for 1959 constituted rentals from real estate and was excluded from net earnings from self-employment, such reported earnings may not be entered on the records of the Administration. SECTION 205 (g).-JUDICIAL REVIEW-DISMISSAL OF REQUEST FOR REVIEW NOT TIMELY FILED 20 CFR 404.951 and 404.954 SSR 68-17c BRAUNSTON v. GARDNER, U.S.D.C. W.D. Texas, Civil Action 66-12-EP (2-10-67) Where plaintiff, following an adverse decision by a hearing examiner and review by the Appeals Council of the Social Security Administration deny. ing his application for benefits, was furnished written notice of his right to initiate action in a Federal district court for review of the decision within 60 days after the mailing to him of notice thereof but who delayed filing of an action until 61 days after the mailing of notice, held, the decision of the Appeals Council is final and is not subject to judicial review, since the plaintiff failed to institute a civil action for judicial review within the time limit provided by section 205(g) of the Social Security Act; nor did he request of the Secretary a further extension of time under the Act. [The Social Security Administration denied the claimant's application for old-age insurance benefits, initially and after reconsideration, for lack of insured status. A hearing was held before a hearing examiner of the Administration resulting in a decision adverse to the claimant. This deci sion, affirmed by the Appeals Council of the Social Security Administration, became the final decision of the Secretary in the matter. Written notice of the decision was sent by certified mail to the claimant on November 18, 1965. [This letter to the claimant advised him as follows: If you desire a review of the hearing examiner's decision by a court, you may commence a civil action in the district court of the United States in the judicial district in which you reside within (60) days from this date. [Sixty-one (61) days later on January 18, 1966, the claimant filed an action for judicial review in the United States District Court for the Western District of Texas, El Paso Division. The issue raised is whether the claimant requested a timely judicial review within the meaning of section 205(g) of the Social Security Act. [In presenting the argument of the Social Security Administration before the court, it was the position of the Social Security Administration that judicial review of final decisions on claims arising under the Social Security Act is provided for and limited by sections 205(g) and (h) of the Act (42 U.S.C. 405 (g) and (h)).* The remedy provided by sections 205(g) *Section 205 (g) of the Social Security Act and section 404.954 of Social Security Administration Regulations No. 4 (20 CFR 404.954) provide that the Secretary may grant an extension of time, for good cause shown, in which to begin civil action; such extension may be granted only if the claimant has filed a written petition with the Appeals Council of the Social Security Administration. No such petition was filed. and (h) is exclusive and its relevant provisions read as follows: (g) 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.* (h) 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 decisions of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided.* (Emphasis supplied.) [There exist numerous case authorities which sustain the validity of sections 205(g) and (h), supra, holding that the only civil action permitted on any claim arising under the Social Security Act is an action to review the "final decision of the Secretary made after a hearing," and that such action must be commenced within 60 days after the mailing to him (the claimant of notice of such decision or within such further time as the Secretary may allow. [The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586-587 (1941). In awarding a review of an administrative preceeding, Congress has power to formulate the conditions under which resort to the courts may be had. American Power and Light Co. v. S.E.C., 325 U.S. 584, 586-587 (1941). Where statute creates a right and provides a special remedy, that remedy is exclusive. United States v. Babcock, 250 U.S. 328 (1915). [The question concerning the claimant's right to judicial review in this case is not unique or one of first impression. The matter has been litigated many times in other cases where, as here, the plaintiff failed to follow the statutory requirements and did not file his complaint seeking judicial review of the Secretary's decision within the sixty days allotted. There are at least three recent cases where, as in the present situation, the plaintiff filed his complaint for judicial review on the sixty-first day. In all three cases the court found it lacked jurisdiction and dismissed the plaintiff's complaint. See Knight v. Celebrexze, 238 F. Supp. 897 (1965); Zellor v. Folsom, 150 F. Supp. 615 (1956); Satterfield v. Celebrezze, 244 F. Supp. 190 (1965). In Satterfield, supra, Judge Hemphill cited the rule which has been followed in all such cases and stated: ⚫ for Section 205 (g) of the Social Security Act contains the sole jurisdic- not waived the sovereign immunity from suit, except to the extent and in |