446 F2d 888 Wimberley v. H Finch

446 F.2d 888

Nolan Delbert WIMBERLEY, Plaintiff and Appellant,
Robert H. FINCH, Secretary, etc., Appellee.

No. 71-1710.

United States Court of Appeals, Ninth Circuit.

Aug. 13, 1971, Rehearing Denied Sept. 16, 1971.

Nolan Delbert Wimberley, in pro per.

William B. Shubb, Asst. U.S. Atty., Dwayne Keyes, U.S. Atty., Sacramento, Cal., for appellee.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.


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Wimberley has been in California state prisons since 1965. In 1966 he filed a claim with the Secretary for social security benefit payments under Title II of the Act, claiming he had been disabled from working since 1962.


A hearing examiner found him disabled since June, 1965, but found there was no medical evidence he had been unable to work since then because of any severe physical impairment. Subsequently the appeals council of the Department of Health, Education and Welfare affirmed. He was notified that he had 60 days in which to appeal to a United States District Court. He waited eleven months and then appealed.


He was too late with his appeal unless the 28 U.S.C. 2401(a) general tolling statute for those under disability is applicable. We hold the specific Limitation of 60 days for an appeal in 42 U.S.C. 405(g) was applicable. Congress was clearly attempting to get such claims as this quickly decided. The statute's severity is softened by the Secretary's power to waive the 60 day limit, something Wimberley never sought.


Other points made have no merit.


The order of the district court dismissing the appeal before it is affirmed.