John S. Peterson v. Joseph Califano, Secretary of Health, Education and Welfare for the United States of America

John Peterson appeals from the district court’s dismissal for lack of jurisdiction of his complaint wherein he alleged abuse of discretion by the Department of Health, Education, and Welfare (HEW). Appellant invoked appellate jurisdiction under 42 U.S.C. § 405 (g) (1976) and 28 U.S.C. § 1291 (1976). We affirm the dismissal.

I

FACTS

On August 4, 1977, the HEW Appeals Council affirmed an administrative law judge’s decision to revoke John Peterson’s social security benefits and informed Peterson by duplicate letters sent to Peterson and his lawyer that, pursuant to 42 U.S.C. § 405 (g) (1976), he had sixty days to file an appeal in federal district court. Peterson did not respond until November 16, 1977, well after the sixty-day period had expired, when his attorney asked the Appeals Council to extend the filing period, explaining that its letter either never arrived in the attorney’s office or had been misfiled. The Appeals Council denied the request. Nevertheless, on January 23,1978, Peterson filed a complaint in federal district court alleging that HEW had abused its discretion by denying an extension and by denying his benefits claim. HEW moved to dismiss the complaint and…