claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). However, in light of the court's ruling on the defendant's first argument, the lack of subject matter jurisdiction, it is not necessary to consider the defendant's second argument.
The court will begin its evaluation of the defendant's motion with a review of the history of the underlying dispute. On July 30, 1976, the plaintiff filed an application for child's insurance benefits under the Act with the Social Security Administration of the Department of Health, Education and Welfare. The plaintiff based her application upon her claim that she was the daughter of a Mr. Johnnie L. Grubbs, who had died on February 8, 1976. The plaintiff's application for these benefits was denied initially, upon reconsideration, and after submission to an Administrative Law Judge of the Social Security Administration's Bureau of Hearings and Appeals. The Administrative Law Judge based his denial of the plaintiff's application upon his conclusion that the evidence failed to establish that Rouse was the daughter of Grubbs under Section 216(h)(2), the pertinent provision of the Act.
Plaintiff then requested review of the denial by the Appeals Council. The Appeals Council affirmed the decision of the Administrative Law Judge, thereby making it the final decision of the Secretary.
On May 2, 1978, the Appeals Council sent a letter by certified mail to the plaintiff reporting its affirmance of the decision of the Administrative Law Judge and advising her that she might seek judicial review of the decision by bringing an action in the district court within sixty days of the receipt of this notice of its decision.
The letter also stated that it would be presumed that the letter was received within five days of the date when it was written, unless a reasonable showing to the contrary was made. Although the plaintiff claims that she did not receive this letter, the defendant has produced a receipt for this certified letter, which was signed by one Alberta Williams. Ms. Williams was identified by the plaintiff in her benefits application as her mother, with whom she was living at the time of Grubbs' death. The plaintiff's attorney subsequently sent a letter to the Social Security Administration on November 22, 1978 indicating that neither he nor his client had been informed of the disposition of her appeal to the Appeals Council and asking to be advised of the current status of the matter. By letter dated December 19, 1978, the Appeals Council advised the plaintiff's attorney that, by notice dated May 2, 1978, the Appeals Council denied the plaintiff's benefits claim and enclosed a photocopy of the May 2, 1978 letter. The plaintiff claims that her attorney did not receive this second letter until January 6, 1979, more than two weeks after it was written by the Appeals Council. Fifty-nine days later on March 5, 1979, the plaintiff instituted this district court action.
In determining whether this court has jurisdiction over the subject matter of this action, the court must be guided by the principle that
federal courts are courts of limited jurisdiction; and the United States District Court has only that jurisdiction which is expressly conferred by Act of Congress, and within the constitutional grant of power of Article 3 of the Federal Constitution. Therefore, when the jurisdiction of the court is challenged it is always necessary to be able to point to some federal statute which confers the jurisdiction in the particular case.