Edward F. Cirk and Rose M. Cirk v. Margaret Heckler, Secretary of Health and Human Services United States Environmental Protection Agency, Region V ( 1986 )

791 F.2d 931

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
EDWARD F. CIRK AND ROSE M. CIRK, Plaintiffs-Appellants
v.
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES;
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
REGION V, Defendants-Appellees,

84-3719

United States Court of Appeals, Sixth Circuit.

4/7/86

AFFIRMED

N.D.Ohio

ORDER

1

BEFORE: MARTIN and GUY, Circuit Judges; REED, District Judge.*

2

This matter is before the Court upon consideration of plaintiffs' appeal from the district court's judgment dismissing their petition seeking review of the Secretary of Human Services' decision denying social security benefits. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the certified record and the parties' briefs, the panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

Plaintiffs allege that they suffer from bodily injury and economic loss due to infestation caused by toxic pollutants in their previous residential area. They allege that the Environmental Protection Agency is primarily responsible for their harm due to the agency's failure to enforce toxic pollutant laws. As a result, plaintiffs filed a claim for maximum social security benefits. The Secretary of the Department of Health and Human Services denied the claim on July 9, 1983. Plaintiffs sought review of the Secretary's decision in the district court on April 6, 1984. The district court dismissed the complaint on August 10, 1984, holding that the court lacked subject matter jurisdiction. The petition was untimely filed. Plaintiffs timely filed a notice of appeal.

4

Upon examination of the record, and liberal consideration of this matter, this Court finds that the district court's judgment must be affirmed.

5

A petition for review of the Secretary's final decision must be filed within 60 days of the agency's final decision. Biron v. Harris, 668 F.2d 259 (6th Cir. 1982); 42 U.S.C. Sec. 405(g). The Secretary's final decision was entered in this matter on July 9, 1983. Plaintiffs did not file their petition for review until April 6, 1984. The petition was filed nearly six months late, and hence review is barred by the running of the Statute of Limitations. The requirement that judicial review of any final decision of the Secretary be commenced within 60 days is jurisdictional and cannot be waived. Id.

6

It is therefore ORDERED that the district court's judgment be and hereby is affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.

*

The Honorable Scott Reed, U.S. District Judge for the Eastern District of Kentucky, sitting by designation