Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1988)

Leland S. MEYERZOVE, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 85-2609.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1988.Decided July 13, 1988.

Before GOODWIN, Chief Judge, and CHAMBERS and NORRIS, Circuit Judges.


Leland S. Meyerzove appeals pro se from the dismissal of his action seeking review of a final administrative ruling by the Secretary of Health and Human Services.1  The district court granted the government's motion to dismiss "for failure to timely initiate the action or, in the alternative, for lack of prosecution." Excerpt of Record at 2. We affirm.

Meyerzove filed his complaint ninety days after he received notice of the final administrative judgment. Section 405(g) of Title 42 provides, in relevant part, that a plaintiff seeking review of an administrative decision by the Social Security Administration must file "within sixty days after the mailing to him of notice of such decision." [Emphasis supplied.] Therefore, Meyerzove's complaint was thirty days late.

The sixty-day limit for filing is not "jurisdictional." Rather, the limit "constitutes a statute of limitations." Bowen v. City of New York, 476 U.S. 467, 478 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987). This limitation can be tolled by "traditional equitable tolling principles," such as when the cause of action is based on duress or undue influence or when the defendant fraudulently conceals the cause of action. Bowen, 476 U.S. at 479; Vernon, 811 F.2d at 1277-78; see also Amy v. Watertown (No. 2), 130 U.S. 320 (1889). In Vernon, for example, the plaintiff was late in filing a complaint in a similar cause of action. In that case, the plaintiff alleged that a Social Security Administration employee misinformed him about the filing deadline. 811 F.2d at 1275. In Bowen, the plaintiffs were prevented from filing because of "the Government's secretive conduct." 476 U.S. at 481.

Meyerzove does not claim that the government misled or concealed anything from him. He admits he received timely notice of his rights. In fact, the only reason claimed for his complaint's tardiness is a mix-up with his attorney. The complaint itself avers no basis for equitable tolling. Even when the complaint is read together with all of Meyerzove's other materials, there is still no basis upon which to toll the sixty-day limit. Absent specific statutory authority, a mistake is not a ground for tolling a statute of limitations.

Because we hold that the district court did not err in dismissing the action on the basis of Meyerzove's failure to timely file, we need not address the question whether the district court abused its discretion in dismissing the action for failure to prosecute.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit Rule 36-3


The district court case was filed originally as Meyerzove v. Heckler. Defendant Bowen was later substituted for defendant Heckler