FSM SUPREME COURT TRIAL DIVISION
Cite as Andrew v. FSM Social Sec. Admin.
12 FSM Intrm. 78 (Kos. 2003)
 
[12 FSM Intrm. 78]
 
TADASY ANDREW,
Petitioner,
 
vs.
 
FSM SOCIAL SECURITY ADMINISTRATION,
Respondent.
 
CIVIL ACTION NO. 2003-2003
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: August 22, 2003

APPEARANCES:

For the Petitioner:                   Sasaki L. George, Esq.
                                                 Micronesian Legal Services Corporation
                                                 P.O. Box 38
                                                 Tofol, Kosrae FM 96944
 
For the Respondent:              Michael J. Sipos, Esq.
                                                P.O. Box 2069
                                                Kolonia, Pohnpei FM 96941

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HEADNOTES

Administrative Law ) Judicial Review; Social Security
     Any person aggrieved by a Social Security Board final order may obtain a review of the order in the FSM Supreme Court trial division by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part. Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 78, 79-80 (Kos. 2003).
 
Administrative Law ) Judicial Review; Appellate Review ) Decisions Reviewable
     In an appeal from an administrative agency to the FSM Supreme Court appellate division,

[12 FSM Intrm. 79]

Appellate Rule 26(b) would control. That rule precludes the appellate division from enlarging the time for filing a notice of appeal from an administrative agency. Because this provision limits the appellate divisionís power to enlarge time, it is jurisdictional. Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 78, 80 (Kos. 2003).
 
Jurisdiction; Statutes of Limitation
     A statute of limitations is one of the expressly stated affirmative defenses to an action under Civil Rule 8(c). As such, it may be waived. On the other hand, a defect in subject matter jurisdiction may never be waived, and may be raised at any time, even after judgment. Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 78, 80 (Kos. 2003).
 
Administrative Law ) Judicial Review; Jurisdiction; Statutes of Limitation
     To read the language that a petitioner shall by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part, to mean that the 60 day time period is absolute, which is to say jurisdictional, would be to read the statute as limiting the trial divisionís jurisdiction to hear such appeals. Statutes which limit a courtís jurisdiction are to be construed narrowly. Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 78, 81 (Kos. 2003).
 
Administrative Law ) Judicial Review; Statutes of Limitation
     Given the absence in the statute of any express language limiting the courtís jurisdiction, the 60 day period for filing a petition in the FSM Supreme Court trial division to appeal a final order of the Social Security Administration is a statute of limitations. As such, it is one of the specifically enumerated defenses under FSM Civil Rule 8(c) that may be raised in the answer. The time limit does not affect the courtís subject matter jurisdiction. Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 78, 81 (Kos. 2003).
 
Administrative Law ) Judicial Review; Civil Procedure ) Dismissal; Statutes of Limitation
     A denial of a motion to dismiss for lack of jurisdiction is without prejudice to Social Securityís right to raise the statute of limitations defense by motion pursuant to FSM Civil Rule 12(c). Andrew v. FSM Social Sec. Admin., 12 FSM Intrm. 78, 81 (Kos. 2003).

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COURTíS OPINION

MARTIN YINUG, Associate Justice:

     The respondent FSM Social Security Administration (the SSA) has moved to dismiss the complaint (properly styled a "petition" pursuant to 53 F.S.M.C. 708) in this matter under FSM Civil Rule 12(b)(1) and (6) on the bases, respectively, of lack of subject matter jurisdiction and failure to state a claim. For the reasons that follow, the motion is denied, but with without prejudice to the SSAís right to pursue the timeliness of the filing of the petition by motion pursuant to FSM Civil Rule 12(c).

     This case is an appeal to this court from a decision by an administrative agency. The SSA Board, by letter of May 6, 2003, denied the appeal of petitioner Tadasy Andrew (Andrew) from the SSAís earlier administrative determination. At issue in both the initial determination and the appeal was Andrewís birth year. On July 14, 2003, or 69 days after the date of the Boardís letter denying his appeal, Andrew filed a complaint for judicial review with this court. Section 708 of Title 53 of the FSM Code provides in pertinent part

[a]ny person aggrieved by a final order of the Board may obtain a review of the order in

[12 FSM Intrm. 80]

the Trial Division of the Supreme Court of the Federated States of Micronesia by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part.

The SSA claims that in order for the court to have jurisdiction over the instant appeal, the notice of appeal must have been filed within 60 days of the date of the SSA letter denying Andrewís claim. The SSA also claims that because the notice of appeal was untimely, Andrew has failed to state a cause of action. The SSA requests that the petition in this case be dismissed.

     In response, Andrew contends that the 60 day time period under 53 F.S.M.C. 708 has yet to begin to run, because the SSAís May 6, 2003, letter was not a final order entered within the meaning of 53 F.S.M.C. 708. However, given the basis on which the court disposes of the FSMís motion, the court need not consider Andrewís contentions at this time.

a. The SSAís position

     What is not at issue here is an appeal from an administrative agency to the appellate division of the FSM Supreme Court. If that were the case, then FSM Appellate Rule 26(b) would control. That rule precludes the appellate division from enlarging the time for filing "a notice of appeal from[] an administrative agency." Because this provision limits the appellate divisionís power to enlarge time, Jonas v. Mobil Oil Micronesia, 2 FSM Intrm. 164, 166 (App. 1986), it is jurisdictional. United States cases, construing the substantially identical Fed. Civil Rule 26(b) are in accord. Pennsylvania v. Interstate Commerce Commín, 590 F. 2d 1187, 1193 (D.C. Cir. 1978) (relying on Fed. App. R. 26(b) in holding that the 60 day period permitted for appeal under the Hobbs Act from Interstate Commerce Commission ruling to the circuit court of appeals was jurisdictional); Microwave Communications, Inc. v. Federal Communications Commín, 515 F.2d 385, 388-89 (D.C. Cir. 1974) (similarly relying on Fed. App. R. 26(b) in holding that the 60 day period permitted for appeal of Federal Communications Commission non-special category orders to the circuit court of appeals was "beyond cavil . . . jurisdictional and unalterable" (footnotes omitted)).

     In contrast to agency appeals to the United States circuit courts are appeals to the United States district courts from U.S. Social Security Administration rulings. Just as in the FSM, appeals in these cases are taken not to the appellate court, but to the trial court. The FSM statute, 53 F.S.M.C. 708, provides that an action for judicial review "may" be brought in the FSM Supreme Court trial division, while the U.S. statute, 42 U.S.C. ß 405(g), provides that such an action "shall" be brought in U.S. district court. Also, just as here, United States law requires that the appeal from a final order of the U.S. Social Security Administration be taken within 60 days.

     The United States Supreme Court has repeatedly held that the specified 60 day time limit in the U.S. statute is not jurisdictional, but rather is a statute of limitations on bringing an action. Bowen v. City of New York, 476 U.S. 467, 479, 106 S. Ct. 2022, 2029-30, 90 L. Ed. 2d 462, 474 (1986); Mathews v. Eldridge, 424 U.S. 319, 328 n.9, 96 S. Ct. 893, 899 n.9, 47 L. Ed. 2d 18, 29 n.9 (1976); Weinberger v. Salfi, 422 U.S. 749, 764, 95 S. Ct. 2457, 2466, 45 L. Ed. 2d 522, 538 (1975). The principle distinction is that a statute of limitations is one of the expressly stated affirmative defenses to an action under both United States Federal Civil Rule 8(c) and FSM Civil Rule 8(c). As such, it may be waived. Salfi, 422 U.S. at 764, 95 S. Ct. at 2466, 45 L. Ed. 2d at 538. On the other hand, a defect in subject matter jurisdiction may never be waived, and may be raised at any time, even after judgment. Island Dev. Co. v. Yap, 9 FSM Intrm. 220, 222 (Yap 1999).

     That the time period specified under the U.S. social security law is one of limitations, as opposed to a jurisdictional requirement, is more readily apparent than the same question under FSM law. The

[12 FSM Intrm. 81]

relevant portion of the U.S. statute provides that "[a]ny individual, after any final decision of the Secretary . . . may obtain review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow." 42 U.S.C. ß 405(g). If the 60 day period under U.S. law were jurisdictional, then it would be unalterable. Salfi, 422 U.S. at 764, 95 S. Ct. at 2466, 45 L. Ed. 2d at 538.

     Unlike the U.S. statute, the FSM statute is silent as to the allowance of additional time. It merely states that the petitioner shall "by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part." To read this language to mean that the 60 day time period is absolute, which is to say jurisdictional, would be to read the statute as limiting the trial divisionís jurisdiction to hear such appeals. However, statutes which limit a courtís jurisdiction are to be construed narrowly. 3C Dallas Sands, Sutherland Statutory Construction ß 67.03 (4th ed. 1974). Given the absence in the statute of any express language limiting the courtís jurisdiction, this court is reluctant to read such limiting language into the statute. Thus the 60 day period for filing a petition in the FSM Supreme Court trial division to appeal a final order of the SSA is a statute of limitations. As such, it is one of the specifically enumerated defenses under FSM Civil Rule 8(c) that may be raised in the SSAís answer. The time limit does not affect this courtís subject matter jurisdiction.

b. Conclusion

    Accordingly, the SSAís motion to dismiss under Rule 12(b)(1) and (6) is denied. The court has subject matter jurisdiction over the petition, and the petition also states a cause of action. Pursuant to FSM Civil Rule 12(a)(1), the SSA shall file its answer within 10 days after it receives notice of the denial of the motion to dismiss.

     The denial of the motion to dismiss is, however, without prejudice to the SSAís right to raise the statute of limitations defense by motion pursuant to FSM Civil Rule 12(c). For the purposes of any such motion and response the parties may rely on the arguments made in the motion to dismiss, response, and reply as the memorandum portions of their respective submissions. Any additional briefing on the statute of limitations issue will be at the partiesí election.

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