Petition — Goldberg v. Califano

Iy THE

Supreme Court of the United States

October Term, 1976

No.

@6-1176

Lian GOLDBERG,

Petitioner,

Vv.

CasPak Wernsencer, Secretary of Health, Education, and

Welfare of the United States,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Davw 8. Premorcer

JonaTHan A. WEIss

Legal Services for the

Elderly Poor

2095 Broadway, Room 304

New York, New York 10023

Tel.: (212) 595-1340

Attorneys for Petitioner

TABLE OF CONTENTS

PAGE

Decisions of the Courts Below -2000.............c cee cecececeeeeeeeeeee 1

Statement of the Grounds of Jurisdiction ...........0000....... 1

TE ESTEE RTT 3

Reasons For GrantTING THE Writ—

Pormst I—

Estoppel May Be Issued Against the Government 5

Porst H—

Estoppel Should Issue In This Case ................... 10

ae 13

ApPEeNpIxX A—

Decision of United States Court of Appeals for

a ee CERI -ceciarsiensesesinteccantenicsibiientenreniicnecniattonianien Al

AppEnDIx B—

Decision of United States District Court for East-

OS I A8

AppEenpix C—

Decision of United States District Court for the

Eastern District of California in Weston v. Mat-

EEE ae Reet we ev OO rete NON STD A20

TABLE or CasEs

Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970) 0000. i)

Corneil-Rodriguez v. I.N.S., 532 F.2d 301 (2d Cir.

1976) ...... 7, 8, 11,12

PAGE

Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380

UDOT RD: cinvsiisenciespiniitatitetnedsaiiiantediiitbnieincsidiidiatneaniataenil 5, 6, 8n

Fox v. Morton, 505 F.2d 254 (9th Cir. 1975) —.0000. 9

Gesturo v. District Director of U.S. Immigration and

Naturalization Service, 337 F.Supp. 1093 (C.D. Cal.

SUITED. civenirisnpscneesicnntestadipiiidialscbilanaiiietinsiuiendianiaiisiamelilladinititiniate ~

Moser v. United States, 341 U.S. 41 (1951) —..000.0..... 5, 6,8

In Re La Voie, 349 F.Supp. 68 (D.C. V.I. 1972) .......... 12

Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950) ........... 7,8

Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976) 12

Schuster v. Commissioner of Internal Revenue, 312

F.2d 311 (9th Cir. 1962) .......................... . 89

United States v. Aetna Casualty and Surety Co., 481

F.2d 1095 (8th Cir. 1973) ............... 10

United States v. Lazy F.C. Ranch, 481 F.2d 985 (9th

Ee Te 9,12

United States v. Lennox Metal Mfg. Co., 131 F.Supp.

717 (E.D.N.Y. 1954), aff'd, 225 F.2d 302 (2d Cir.

ee ee ee 10

United States v. Shubert, 14 F.R.D. 471 (S.D.N.Y.

a aes 12

United States v. Wharton, 514. F.2d 406 (9th Cir,

' 8n, 9

Weston v. Mathews, No. F-75-205 (E.D. Cal., Oct. 12,

| RR eer TE, 9,10

In THE

Supreme Court of the United States

October Term, 1976

By wediaassdlies

Petitioner,

Caspar WeEInBeRGER, Secretary of Health, Education, and

Welfare of the United States,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Decisions of the Courts Below

The decision of the United States District Court, Eastern

District of New York, dated April 12, 1976, which dismissed

petitioner’s claims is reported at 411 F. Supp. 88. The

decision of the United States Court of Appeals for the

Second Circuit Slip Op. No. 178, Dec. 1, 1976, affirming

the decision of the District Court is not yet reported. Both

decisions are reproduced in the appendix.

Statement of the Grounds of Jurisdiction

1. The basis for federal jurisdiction in the District Court

is 42 U.S.C. § 405(g). The decision of the Court of Appeals

2

affirming the dismissal of this action by the District Court

was entered on December 1, 1976. _

2. Jurisdiction to review the decision of the Court cf

Appeals in this case is conferred upon this Court by 28

U.S.C. § 1254.

Tue Questions Presentep For Review Are As Foiiows:

1. May estoppel issue against the Federal government

based upon misinformation dispensed by a federal em-

ployee?

2. When a recipient of Social Security widow’s disability

benefits calls her local Social Security district office to in-

quire as to the effect her proposed remarriage will have on

her benefits, is misinformed by an employee of that office,

Tremarries in reliance on that information, and due to the

remarriage has her benefits terminated, should estoppel be

granted against the government reinstating benefits as of

the date of termination?

Tue Statutes Wuicu TH1s Case INVOLVES ARE AS FOLLows:

United States Code, Title 42, provides in pertinent parts:

§ 402 Widow’s Insurance Benefits

(e) (1) The widow (as defined in 4 416(c) of this title)

and every surviving divorced wife (as defined in

§ 416(d) of this title) of an individual who died a fully

insured individual, if such widow or such surviving

divorced wife

(A) is not married,

(B) (i) has attained age 60, or (ii) has attained age 50

but has not attained age 60 and is under a disability

3

(as defined in 4 423(d) of this title) which began be-

fore the end of the period specified in { 5, shal! be en-

titled to a widow’s insurance benefit for each month.

(e) (4) If a widow, after attaining the age of 60, mar-

ries . . ., such marriage shall, for purposes of subsec-

tion (1) of this subsection, be deemed not to have oc-

curred; except that .. . such widow’s insurance benefit

for the month in which such marriage occurs and each

month thereafter prior to the month in which the hus-

band dies or such marriage is otherwise terminated,

shall be equal to one-half of the primary insurance

amount of the deceased individual on whose wages and

self-employment income such benefit is based.

Statement of the Case

The petitioner, Luan Gotpsers, is a 64-year-old New

York resident who had been receiving widow’s disability

insurance benefits since 1969, followng the death of her

first hubsand, Murray Kaufman, on February 12, 1969. In

1972, petitioner sought to remarry. Before doing so, she

contacted a local Social Security District Office by tele-

phone to inquire whether her continued eligibility for bene-

fits, or the amount of her benefits, would be affected if she

were to remarry. She was informed that her benefits would

continue, but would be reduced by about half.

Relying upon the information provided by the Social

Security employe, petitioner remarried on May 21, 1972.

In July, 1972, petitioner’s benefits were terminated. Peti-

tioner subsequently discovered that she had received in-

correct information from the Social Security Office. The

Social Security Act provides that widows who remarry

after attaining age 60 will have their benefits reduced.

However, the benefits of widows who remarry prior to age

4

60 are terminated.* Thus, petitioner, by remarrying only

55 days prior to her 60th birthday (July 15, 1972), lost her

benefits.

After a hearing, the Administrative Law Judge found, on

July 10, 1973, that petitioner had relied, to her detriment,

upon the misrepresentation of an employee of the Social

Security office. (A-11).** This finding was accepted by

both the District Court (A-12) and the Court of Appeals.

(A-6). Thus, there is no dispute between the parties con-

cerning the facts in this action. Despite the detrimental

reliance by petitioner, the Administrative Law Judge found

that the representation of the Social Security employee

would not bind the government; in short, the government

would not be estopped from denying benefits to petitioner.

(A-12). Upon exhaustion of the administrative remedies

available to her, petitioner commenced an action in the

United States District Court for the Eastern District of

New York requesting either that the government be es-

topped from terminating her benefits or, in the alternative,

that the statutory scheme in question be declared uncon-

e‘itational.*** On April 1, 1976, the Court, per the Honor-

able Thomas C. Platt, Jr., U.S.D.J., held that estoppel

would not issue and granted defendant’s motion for sum-

mary judgment. (A-16).

The Court of Appeals affirmed on December 1, 1976,

holding that “[i]t is well established that ‘estoppel cannot

be set up against the Government on the basis of an un-

© §202(e)(1)(A), (B) (ii) and (e)(4) of the Social Security

Act, 42 U.S.C. §402(e)(1)(A), (B) (ii) and (e) (4).

** All such references throughout this petition are to the ap-

pendix submitted herewith.

*** While the constitutional claim was pursued in the Second

Circuit, it has been eliminated for the purpose of this petition and,

therefore, will not be discussed further.

)

authorized representation or at of an officer or employee

who is without authority in his individual capacity to bind

the Government.’ ” (citation omitted) (A-6).

REASONS FOR GRANTING THE WRIT

POINT I

Estoppel May Be Issued Against the Government.

While there is no rule that the government cannot be

estopped, estoppel against the government had been tradi-

tionally disfavored. The leading case for this proposition

is Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380

(1947). Not along after Merrill, supra, this Court arrived

at a differing result in the case of Moser v. United States,

341 U.S. 41 (1951). The Merrill and Moser decisions seem

to have caused confusion among the circuits in their at-

tempts to establish principles under which estoppel may

issue.

In Merrill, supra, the Court refused to issue estoppel

where wheat farmers had relied to their detriment on mis-

information regarding crop insurance provided by repre-

sentatives of the Federal Crop Insurance Corporation. The

Court declared that published wheat crop insurance regula-

tions were binding on the farmers whether or not they

knew of the regulations or were misinformed as to their

content. 332 U.S. at 385.

In Moser, supra, the plaintiff, a Swiss national, sought

naturalization as a U.S. citizen, but he had previously re-

quested exemption from military service under a Swiss-

U.S. treaty. He was informed by the State Department

that the Selective Service Act barred from citizenship any

6

resident of a neutral country who applied for such an

exemption. The Swiss legation protested and the State

Department, in conjunction with the Selective Service Sys-

tem and the Legation, agreed on a revised exemption form

which specifically omitted the reference to a bar from

citizenship. Plaintiff thereupon applied for the exemption.

The Court held that the government was estopped from

claiming that plaintiff had waived his rights to citizen-

ship. 341 U.S. at 46. The guarantee of “elementary fair-

ness,” in the opinion of the Court required estoppel.

The Moser court did not mention Merrill. However, a

possible reason for the different approaches in the two

cases is that petitioners in Merrill were farmer-business-

men who might have been presumed to have knowledge of

the appropriate rules governing insurance of their crops*

while the petitioner in Moser could not reasonably be so

charged. But, whatever the reason, federal courts such as

the court below in this case have had difficulty in resolving

the differences between these two decisions. This has re-

sulted in a conflict in the circuits concerning the standards

to be applied in estoppel cases.

In its decision in this case, the Second Circuit refused

to issue estoppel. (A-7). The Court relied principally on

Merrill in holding that reliance to detriment on misinforma-

tion obtained from a government agent would not excuse

* However, Mr. Justice Jackson (joined by Mr. Justice Douglas)

felt that such a presumption was unfounded:

To my mind, it is an absurdity to hold that every farmer who

insures his crops knows what the Federal Register contains

or even knows that there is such a publication. If he were

to peruse this voluminous and dull publication as it is issued

from time to time in order to make sure whether anything has

been promulgated that affects his rights, he would never get

time to plant any crops. Nor am I convinced that a reading of

technically-worded regulations would enlighten him much in

any event. Merrill, supra, 332 U.S. at 387.

7

a failure to qualify for benefits under relevant statutes and

regulations.* (A-6). In so ruling, the Court not only

specifically rejected the position of the Ninth Circuit on

this issue (see p. 8 infra), but also seemed to contradict

two of its own earlier decisions on estoppel.

In Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950), the

Second Circuit held that the government could not deny

citizenship to a petitioner who entered the Rumanian Army

after being erroneously informed by the State Department

that he had already lost his citizenship by prior acts. The

letter of the applicable law clearly called for loss of citizen-

ship due to his foreign military service. The Court felt,

however, that since petitioner justifiably relied to his detri-

ment on the misinformation given to him, equity and justice

required that petitioner be placed in the position he would

have been in but for the actions of the State Department.

Thus, petitioner was granted all citizenship rights. Zd. at

309. In Podea, as in the case at bar, the issue was not

simply an omission by a government agent to inform or

act, but rather an error of commission, the redress of

which would simply restore the status quo.

In its decision below, the Second Circuit’s failure to men-

tion Podea is conspicuous, particularly in light of its more

recent treatment of estoppel in Corneil-Rodriguez v. I.N.S.,

532 F.2d 301 (2d Cir. 1976). Corneil, like Podea, was a

citizenship case. There, petitioner, relying upon misin-

formation from consular officers, married three days be-

fore leaving her native Dominican Republic for the United

States, thereby forfeiting her exemption from a labor

certification requirement for entry. The consular officers

* However, petitioner was not an applicant for benefits. She was

already receiving benefits for which she was fully qualified by

statute. The issue here is whether she should continue to qualify

for benefits, albeit in a reduced amount.

.

had failed to give petitioner a warning not to marry which

was mandated by regulation. The Court granted estoppel

since “just a smattering of correct information” would

have resulted in petitioner simply postponing her wedding

for three days and thereby preventing her deportation.

Id. at 304.

Thus, Corneil differs from Podea only in that it involved

an error in omission rather than commission. Seemingly

because of this, the Court below found Corneil to be limited

to its facts and therefore unpersuasive unauthority regard-

ing the circumstances of the case at bar.

Such a holding, however, ignores the rationale underly-

ing Corneil. Nowhere in the Corneil decision does the

Court attempt to narrow its holding to cases involving

only acts of omission.* Further, the Corneil Court relied

not only on Podea, supra, to avoid a “wooden” interpreta-

tion of the Immigration and Naturalization Act, but also

on Moser, supra, as “an important illustration of ...a

sensible and humane application of the law” (Id. at 305)

in finding that estoppel should issue.**

The decision below is, therefore, quite clearly a step in

the other direction. Not only did the Court limit Corneil

to an act of omission, but it pointedly rejected the position

which the Ninth Circuit has adopted in granting estoppel

in such cases*** (A-6), to wit: Schuster v. Commissioner

*In United States v. Wharton, 514 F.2d 406 (9th Cir. 1975),

the Court noted that affirmative misconduct by government offi-

cials or misrepresentation (i.¢., an act of commission) presented

an even more compelling case for estoppel than did neglect or fail-

ure to inform. Jd. at 409-410.

** “We are, of course, aware of the decision in Federal Crop

Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.2d 10 (1947),

but believe it to have been substantially undermined by Moser.”

Corneil, supra, 532 F.2d at 305, n. 15.

*** The two leading Ninth Circuit cases cited above were favor-

ably mentioned in Corneil, 532 F.2d at 305, n. 15.

9

of the Internal Revenue, 312 F.2d 311 (9th Cir. 1962) (re-

liance on erroneous determination by Commissioner of

estate tax due); Brandt v. Hickel, 427 F.2d 53 (9th Cir.

1970) (reliance on ambiguous statements by bureau of land

management) ; United States v. Lazy F. C. Ranch, 481 F.2d

985 (9th Cir. 1973) (reliance on approval of contracts and

failure to provide necessary information by service of De-

partment of Agriculture); Fox v. Morton, 505 F.2d 254

(9th Cir. 1975) (reliance on misleading program descrip-

tion by Bureau of Indian Affairs) ; United States v. Whar-

ton, 514 F.2d 406 (9th Cir. 1975) (reliance on misrepresen-

tation of Interior Department officials).

While the specific facts of these cases may differ from

those in the instant case, they make clear that where the

government’s wrongful conduct (whether affirmative or by

omission) threatens to work serious injustice and the pub-

lice interest would no‘ be unduly damaged, the imposition

of estoppel is appropriate. Wharton, supra, at 412-13; Foz,

supra, at 256; Lazy F.C. Ranch, supra, at 989.

Following these decisions, a California District Court has

held in a case similar to the one at bar that estoppel may be

applied against the government in a case concerning the

Social Secrrity Act. Weston v. Mathews, No. F-75-205,

(E.D. Cal. Oct. 12, 1976) (A-20), concerned an applicant

for Social Security widow’s insurance and Supplemental

Security Income (SSI) benefits who was erroneously in-

formed that she could not apply for SSI until her widow’s

benefit application had been processed. She eventually re-

ceived SSI benefits but not retroactively to the time of the

misinformation. In granting retroactive relief, the Court

found that the Ninth Circuit’s estoppel standards required

such a result since the affirmative misconduct of a govern-

ment employee goes beyond mere nonfeasance and con-

stitutes “a further and distinct basis for estopping the

defendant in this case.” Weston, supra, at 4.

10

Thus Weston and the decision of the Second Circuit in

this case are diametrically opposite and clearly evidence

the conflict between the Second and Ninth Circuits regard-

ing the doctrine of estoppel of the government. A resolu-

tion of this conflict requires the intervention of this Court.

POINT II

Estoppel Should Issue In This Case.

The circumstances surrounding the termination of peti-

tioner’s benefits clearly indicate the propriety of granting

estoppel in this case. Petitioner, while receiving Social

Security widow’s disability benefits, was misinformed as to

the effect her proposed remarriage would have on her con-

tinued receipt of benefits. It is undisputed that had peti-

tioner been given accurate information, she could and

would have waited an additional 55 days to remarry, there-

by protecting her rights to continued benefits in a reduced

amount.

The cases discussed in Point I, supra, indicate that if

failure to grant estoppel would result in manifest injustice,

and the public interest would not be unduly affected, es-

toppel should issue against the government provided that

all the elements of estoppel are present. These elements

are: a lack of knowledge and means of knowledge of the

facts in question by the party claiming the estoppel; reli-

ance, in good faith, upon the false representations of the

party to be estopped; and, a change in position based there-

on to his injury, detriment or prejudice. U.S. v. Aetna

Casualty and Surety Co., 481 F.2d 1095, 1099 (8th Cir.

1973) ; U.S. v. Lennox Metal Mfg. Co., 131 F.Supp. 717, 731

(E.D.N.Y. 1954), aff'd, 225 F.2d 302 (2d Cir. 1955).

All of these elements are present in the instant case.

Petitioner had no knowledge of the effects of her con-

11

templated remarriage on her continuing eligibility for

widow’s benefits. In order to gain such knowledge, she in-

quired at the local Social Security office. She relied, in good

faith, on the misinformation given her there, namely, that

her remarriage before age 60 would result only in a reduc-

tion of her benefits. Due to this reliance, petitioner remar-

ried before she reached age 60. This change in status was

permanently detrimental to her right to receive widow’s

benefits under the Social Security Act.* But for the misrep-

resentation, petitioner would simply have waited until her

60th birthday, merely 55 days away, before remarrying.

Thus, she would have continued to receive benefits, albeit

in a reduced amount. Instead, she was deprived of her

right to the benefits, although she was not at fault. Peti-

tioner’s reliance was reasonably based on the affirmative

action of a government agent, since she had no other in-

formation that the facts were otherwise. It is noteworthy

that the publications of the Social Security Administration

regarding benefits instruct the beneficiary to contact his/

her local Social Security District Office for benefit informa-

tion. Certainly it is unreasonable to require petitioner to

seek the advice of an attorney in order to decipher the de-

tailed requirements of the statute. As the court in Corneil,

supra, said:

Unfortunately, unintentional injustices too often can

be visited upon the naive albeit honest alien who is

understandably unfamiliar with the labyrinthine intri-

eacies of our immigration laws. 532 F.2d at 304.

* While petitioner would have been entitled to receive widow’s

disability benefits for only two additional months after her re-

marriage (and did in fact receive these through an error), said

benefits would have automatically been converted to aged widow’s

benefits upon petitioner reaching age 60 had she not remarried.

Because of the misinformation, petitioner is foreclosed from re-

ceiving these benefits.

12

Persons unfamiliar with the equally labyrinthine Social

Security Act obviously fall victim to similar fates.

\ Finally, it can be heard that estoppel will not be allowed

if it works a violation of the law. What this rule tries to

prevent is a violation of the purpose of the law and public

policy. One must look beyond the strict interpretation of

the words of the statute to the governmental policy meant

to be achieved by those words. Corneil, supra.

The legislative history of § 202(e) (42 U.S.C. § 402(e))

of the Social Security Act clearly states that the essential

purpose of the provision was to benefit widows (like those

in petitioner’s position). Remedial legislation like the So-

cial Security Act should be construed and applied broadly.

Rosenberg v. Richardson, 538 F.2d 487 (2nd Cir. 1976).

Thus, the real purpose of the law should not be frustrated.

U.S. v. Shubert, 14 F.R.D. 471, 474 (S.D.N.Y. 1953).

It is clear that petitioner is in the specific category of

people whom this statute seeks to protect and benefit and

through no fault of her own, she is in technical non-compli-

ance with the statute. It has been held that the govern-

ment will be estopped where there is merely such a

technical non-compliance. In Re La Voie, 349 F.Supp. 68,

72-74 (D.C. V.I. 1972). It is also well accepted that where

estoppel against the government will not disrupt the ad-

ministration of national policy, Gesturo v. District Director

of U.S. Immigration and Naturalization Service, 337

F.Supp. 1093, 1101 (D.C. Calif. 1971), and will not go

against the public interest,* U.S. v. Lazy F. C. Ranch,

supra, 481 F.2d at 989 (9th Cir. 1973), it should be allowed.

*It can hardly be argued that permitting petitioner to continue

to receive benefits would frustrate any public policy considering :

(1) §202(e) of the Social Security Act (42 U.S.C. §402(e)) clearly

was promulgated to grant benefits to needy widows; (2) widows

over the age of 60 are permitted to remarry with only a reduction

13

The Social Security Administration should be estopped

from denying petitioner widow’s insurance benefits.

CONCLUSION

For the foregoing reasons, petitioner respectfully sub-

mits that a writ of certiorari should be issued to the United

States Court of Appeals for the Second Circuit.

Respectfully submitted,

Davin S. PREMINGER

JonaTHAN A. WEISS

Legal Services for the

Elderly Poor

2095 Broadway, Room 304

New York, New York 10023

Tel.: (212) 595-1340

Attorneys for Petitioner

in benefits; (3) petitioner was only 55 days from her 60th birthday

when she remarried and clearly would have waited to remarry had

she been given correct information ; and, (4) estoppel would merely

put the parties into the positions that would have existed had not

the Social Security Administration given misinformation.

A-1

UNITED STATES COURT OF APPEALS

For tHe Seconp Crmcvuir

—

No. 178—September Term, 1976.

(Argued October 19, 1976 Decided December 1, 1976.)

Docket No. 76-6078

++

Luiuy GoLpBere,

Appellant,

v.

Caspan Wertnpercer, Secretary of Health, Education

and Welfare,

Appellee.

—~+ +e

Before:

Hays, Anperson and GuRrEIn,

Circuit Judges.

+O.

Appeal from an order of the United States District Court

for the Eastern District of New York, Thomas C. Platt,

Judge, which sustained appellee’s decision that appellant

is not entitled to widow’s insurance benefits, and dismissed

the complaint.

- Affirmed.

<>

Davip S. Premincer, New York, N.Y. and Jour

C. Gray, Jz., New York, N.Y., for Appellant.

Davm C. Tracer, United States Attorney, New

York, N.Y. (Josephine Y. King and Richard

723

A-2

P. Caro, Assistant United States Attorneys,

of counsel), for Appellee.

+o

Hays, Circuit Judge:

Prior to July, 1972, plaintiff-appellant Lillian Goldberg

had been receiving widow’s disability benefits pursuant to

section 202(e)(1)(B)(ii) of the Social Security Act, 42

U.S.C. § 402(e) (1) (B) (ii) (1970 ed.) [“the Act”].* On May

21, 1972, about two months before her sixtieth birthday,

plaintiff remarried, thereby disqualifying herself from re-

ceiving any more widow’s disability insurance benefits or

widow’s insurance benefits under the Act.? Accordingly, in

1 Section 202(e)(1) provides, in pertinent part:

“(e) Widow's insurance benefits.

(1) The widow (as defined in section 416(¢c) of this title) and

every surviving divorced wife (as defined in section 416(d)

of this title) of an individual who died a fully insured

individual, if such widow or such surviving divorced wife—

(A) is not married, [and]

(B)(i) has attained age 60, or (ii) has attained age 50

but has not attained age 60 and is under a disability (as

defined in section 423(d) of this title) which began before

the end of the period specified in paragraph (5),

* . —

shall be entitled to a widow’s insurance benefit for each month

42 U.B.C. § 402(e)(1) (1970 e4.).

2 Had plaintiff waited until after her sixtieth birthday to remarry, she

would have remained eligible to receive continued, albeit reduced, bene-

fite. Thus, section 202(e)(4) of the Act provides:

“If a widow, after attaining the age of 60, marries . . ., such

each month thereafter prior to the month in which the husband

dies or such marriage is otherwise terminated, shall he equal to

of the primary insurance amount of the deceased in-

724

A-3

July of 1972 plaintiffs benefits were terminated by the

Social Security Administration, which affirmed ite deci-

sion in a Reconsideration Determination dated November

7, 1972. This decision was upheld, in turn, by an Admin-

istrative Law Judge and the Appeals Council of the Social

Security Administration. On review in the United States

District Court for the Eastern District of New York,

Judge Platt sustained the Secretary’s decision, and granted

the government’s motion for summary judgment.

Plaintiff now appeals to this court, attacking the deci-

sion of the district court on two grounds: First, she

claims that as a result of information given her by her

local Social Security office prior to her remarriage, to the

effect that marriage would reduce but not eliminate the

benefits, the government is estopped from finding her in-

eligible for benefits. Second, and in the alternative, she

argues that the relevant statutory provisions arbitrarily

discriminate on the basis of marital status and age, in

violation of the equal protection and due process clauses.

Because we find both of these contentions to be without

merit, we affirm the district court’s decision.

L

The Social Security Act, insofar as it is relevant to

this controversy, provides as follows: section 202(e)(1)

grants benefits to widows who are (A) unmarried, and

(B) either (i) over the age of 60 or (ii) over the age of 50

and disabled. See 42 U.S.C. § 402(e)(1)(1970 ed.), note

1, supra. Section 202(e)(4) provjdes that if a widow re-

marries after attaining the age of 60, the marriage will be

dividual on whose wages and self-employment income such benefit

is based.”

42 U.S.C. §402(e)(4) (1970 ed.).

In actual fact, plaintiff's disability benefits were continued for two

months, due to a delay in administrative processing. She was allowed

to retain the overpayments because she was without fault in their receipt.

725

A-4

disregarded, except that her benefits will be reduced. See

42 U.S.C. § 402(e)(4) (1970 ed.), note 2, supra. A widow

who remarries before attaining the age of 60, however, is

simply no longer “not married” within the meaning of

section 202(e)(1)(A). Thus, if a disabled widow remar-

ries before she reaches 60, her benefits are terminated be-

cause she does not satisfy the requirements of either

202(e)(1) or 202(e)(4); if the disabled widow waits until

after she is 60 to remarry, she continues to receive reduced

benefits.

Plaintiff attacks this statutory scheme on the ground

that it deprives her of her rights to due process and equal

protection of the law by impermissibly discriminating on

the basis of marita] status and age.’ We disagree.

The Act admittedly draws a sharp line between widows

who remarry before age 60 and those who wait until after

their sixtieth birthday to remarry. Nevertheless, we can-

not overturn this classification unless we find that it bears

no rational relationship to a valid Congressional purpose.‘

3 ##We agree with the district court that plaintiff lacks standing to

challenge the statutory scheme insofar as it mandates termination of

disability benefits upon remarriage by a widow under the age of 60.

Since plaintiff's disability benefits continued after her marriage until

her sixtieth birthday, see note 2 supra, she received all such benefits to

which she would have been entitled even had she not remarried. See

Social Security Act § 202(e)(1)(B) (ii), 42 U.S.C. § 402(e) (1) (B) (ii)

(1970 ed.). She therefore has not suffered the requisite personal injury

to object to the provision for termination of disability benefits upon

remarriage. See generally Evans v. Hills, No. 74-1793 (2d Cir. June 4,

1976) (en banc).

4 We reject appellant's suggestion, based on the Supreme Court's deci-

sions in Loving v. Virginia, 388 U.S. 1 (1967), Skinner v. Oklahoma,

316 U.S. 535 (1942), and Griswold v. Connecticut, 381 U.S. 479 (1965),

that the statute be examined under a standard of strict scrutiny. She

argoes that the Act infringes on a fundamental right, namely the right

to marry, by requiring as a condition to securing benefits that a widow

remain unmarried until her sixtieth birthday.

In Loving v. Virginia, supra, the Court described the freedom to marry

as “one of the vital , crsonal rights essential to the orderly pursuit of

happiness by free men.” 388 U.S. at 12. However, the Virginia stat-

726

A-5

Originally, the Act provided that a widow who remar-

ried was disqualified from receiving any insurance bene-

fits. In 1965 Congress added section 202(e)(4), provid-

ing for a reduction rather than a total elimination of

benefits to widows remarrying over the age of 60. Act of

July 30, 1965, Pub. L. No. 89—97, § 333(a), 79 Stat. 286,

403-04. Congress could have decided to extend reduced

benefits to widows who remarry at any age, but it chose

to draw the line at age 60.

As the district court reasoned, Congress may well have

concluded that a widow who remarries during her 50’s is

more likely to marry a man having several years earning

capacity than is a widow 60 or older. Alternatively, Con-

gress may have decided that practical considerations of

administration require that there be an objective, some-

what arbitrary criterion for determining benefit eligibility.

See, e.g., Matthews v. Lucas, 96 S. Ct. 2755, 2764-67 (1976) ;

Weinberger v. Salfi, 422 U.S. 749, 781-85 (1975); Dan-

utory scheme there invalidated prevented marriages between persons

solely on the basis of race; neither a total bar to marriage nor an

invidious racial classification is involved in this case. Moreover, Loving

did not hold that the right to marry is “fundamental,” as that term

is understood in an equa) protection context.

Skinner v. Oklahoma, supra, is not to the contrary. Despite dictum

to the effect that “[m]Jerriage and procreation are fundamental] to the

very existence and survival of the race,” 316 U.S. ac 541 (emphasis

added), Skinner held only that “strict scrutiny of the classification which

a State makes in a sterilization law is essential .. .” Id. (emphasis

added). Again the court did not hold that any classification which

burdens the right to marry must be examined with strict scrutiny.

Nor does Griswold v. Connecticut, supra, support plaintiff's argument.

There the Court was concerned with “the notions of privacy surround-

ing the marriage relationship,” 381 U.S. at 486, not with the right

to marry.

In any event, eligibility for benefits may be dependent upon marital

or familial relationships without violating the constitution. See, ¢.g.,

Weinberger v. Salfi, 422 U.S. 749, 777-85 (1975); Kahn v. Shevin, 416

U.S. 351, 353-56 (1974). We therefore agree with appellee that the

crux of plaintiff's constitutional objection is that the statute uncon-

stitutionally discriminates on the basis of age.

727

A-6

dridge v. Williams, 397 U.S. 471, 485 (1970). In either

case, we cannot say that Congress acted unreasonably in

denying benefits to widows who remarry before reaching

60 years of age.

We hold that the Act does not discriminate among bene-

fit claimants on the basis of criteria which bear no rational

relationship to a legitimate congressional purpose. It fol-

lows that plaintiff’s constitutional argument is without

merit.

I.

Plaintiff also argues that the government is estopped

from terminating her benefits because of a misrepresenta-

tion by a local Social Security Office employee, to the effect

that remarriage before attaining age 60 would reduce but

not terminate her benefits.

The government does not dispute plaintiff’s claim that

she received misinformation and relied on it to her detri-

ment. Rather, the government argues that plaintiff may

not invoke the doctrine of estoppel in this case.

It is well established that “estoppel cannot be set up

against the Government on the basis of an unauthorized

representation or act of an officer or employee who is

without authority in his individual capacity to bind the

Government.” Byrne Organization, Inc. v. United States,

287 F.2d 582, 587 (Ct. Cl. 1961). See also Federal Crop

Insurance Corp. v. Merrill, 332 U.S. 380 (1947). Although

at least one court has evinced a willingness to depart from

this principle in certain circumstances, see, e.g., United

States v. Wharton, 514 F.2d 406, 412-13 (9th Cir. 1975);

Fox v. Morton, 505 F.2d 254, 256 (9th Cir. 1974); United

States v. Lazy F C Ranch, 481 F.2d 985, 988 (9th Cir.

1973); Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970);

Schuster v. C.I.R., 312 F.2d 311 (9th Cir. 1962), we decline

to do so here.

728

> A-7

+

The government could scarcely function if it were bound

by its employees’ unauthorized representations. Where a

party claims entitlement to benefits under federal statutes

and lawfully promulgated regulations, that party must

satisfy the requirements imposed by Congress. Even

detrimental reliance on misinformation obtained from a

seemingly authorized government agent will not excuse a

failure to qualify for the benefits under the relevant stat-

utes and regulations.

Thus, since it is clear that the local employee of the

Social Security Administration was not authorized to rep-

resent to plaintiff that she would continue to receive re-

duced benefits after her marriage, the government is not

estopped from denying her widow’s insurance benefits.

Accordingly, the judgment of the district court is af-

firmed.

5 Our decision in Corniel-Rodriguez v. I.N.8., 532 F.2d 301 (2d Cir.

1976), is not to the contrary. We held there that estoppel may be in-

voked against the government where there is “noncompliance with an

affirmatively required procedure. . . .” 532 F.2d at 306-07. We took

pains, however, to limit our decision to the specific facts of that case,

particularly the fact that the government employee had failed to pro-

vide petitioner with a warning mandated by federal regulations. Jd.

and n.18. No such regulation governs Social Security Office employees.

729

A-8

Lillian GOLDBERG, Plaintiff,

v.

Caspar WEINBERGER, Secretary of

Health, Education and Welfare,

Defendant.

No. 74C157.

United States District Court,

E. D. New York.

April 2, 1976.

Widow’s disability insurance benefits

were terminated upon her remarriage 55

days prior to her 60th birthday, and she

brought action for recovery of benefits.

The District Court, Platt, J., held that

government was net estopped from ter-

minating benefits by reason of fact that

social security employee had _ misin-

formed her of effect of remarriage, and

that termination of benefits did not deny

widow equal protection or deprive her of

property without due process.

Widow’s motion denied.

1. Estoppel @=62.2(4)

Though social security employee

misinformed widow of effect of proposed

remarriage on her social security bene-

fits, she could not invoke doctrine of es-

toppel to bar government’s termination

of widow’s insurance benefits. Social

Security Act, § 202(e})(1)(A, B), (eX4), 42

U.S.C.A. § 402(eX 1A, B), (e)(4).

2. Social Security and Public Welfare

= 145

Where widow received widow’s dis-

ability insurance benefits until her re-

A-9

marriage 55 days before she attained age

60, and benefits would have been termi-

nated at age 60 even if she had not

. remarried, since she would then have

been entitled to old-age insurance bene-

fits, widow lacked standing to raise con-

. Stitutional challenge to statutory provi-

sion requiring termination of widow's

disability insurance benefits upon remar-

riage before age 60. Social Security Act,

§ 202(eX1XA, B), 42 USCA.

§ 402(e)(1A, B).

3. Social Security and Public Welfare

e= 122

Congress had rational basis for al-

lowing widows who remarry efter 60th

birthday to draw widow’s insurance ben-

efits while denying such benefits to wid-

ows who remarry before age 60, and

_ thus such provisions of Social Security

Act did not unreasonably discriminate

between women similarly situated solely

on basis of their marital status. Social

Security Act, § 202(e1)(A, B), 42 US.

C.A. § 402(eX 1A, B).

4. Constitutional Law @242.3(1), 299

Social Security and Public Welfare

e122

Congress had rational basis for spe-

cifically providing that widows who re-

marry before 60th birthday not receive.

widow's insurance benefits, and thus

widow was not denied equal protection

or due process of law on basis of age

when widow’s insurance benefits were

_ terminated after she remarried 55 days

prior to her 60th birthday. Social Secur-

ity Act, § 202(eX1), 42 U.S.C.A.

§ 402(e)(1).

- 2

- A-10

David S. Preminger, Legal Services

for the Elderly Poor, New York City, .

John C. Gray, Jr., Brooklyn, N. Y., Legal '

Services Corp., Brooklyn, N. Y., for

plaintiff.

David G. Trager, U. S. Atty., Brook-

lyn, N. Y., by Douglas J. Kramer, Asst. :

L. S. Atty., Brooklyn, N. Y., for defend-

ant

" PLATT, District Judge.

OPINION AND ORDER

PRELIMINARY STATEMENT

Plaintiff sues for Social Security wid-

ow’s insurance benefits and both parties

have moved for summary judgment, the

defendant seeking dismissal of plaintiff's

complaint, and plaintiff seeking benefits

in whole or in part, or, in the alternative,

_injunctive relief and a declaration that

42 U.S.C. § 402(e)1A) and (B) and

§ 402(e)4) are unconstitutional on the

grounds that they arbitrarily discrimi-

nate on the basis of marital status

and/or age.

The dispute arises because the plain-

tiff, when she was a 59 year old widow

receiving widow’s disability insurance

benefits, married her present husband

" about two months before she became 60

years of age. As a result of her remar-

riage before age 60, plaintiff became in-

eligible to receive (i) any more widow’s

disability insurance benefits, and (ii) any

“idow's insurance benefits under the So-

cia] Security Act. In fact, although she

was not eligible therefor since she had

remarried some two months prior to age

60, plaintiff did receive all of her wid-

ow’s disability insurance payments up to

the date when she attained that age, cf.

42 U.S.C. § 402(e)1).

A-11

The facts are not in dispute. Plaintiff

was born on July 15, 1912 and attained

the age of 60 years on July 15, 1972.

Plaintiff was once married to a Mr.

Murray Kaufman, who died. Thereafter

plaintiff filed an application for widow's

disability insurance benefits and received

them beginning in 1969.

Shortly before her remarriage, plain-

tiff, at the urging of her son, talked on

the telephone with a representative in

the local Social Security Office about the

possible effects of her forthcoming mar-

riage upon her disability benefits. She

was informed that the marriage might

reduce her benefits but would not termi-

nate them. The Administrative Law

Judge, in the proceeding below, gave

“full credence to her testimony that she

did consult the local Social Security Of-

fice prior to her marriage and that she

was misinformed as to the effect of her

contemplated nuptial arrangements upon

the benefits she was receiving.”

Relying upon this information, plain-

tiff married her present husband, Mr.

Goldberg, on May 21, 1972. In July 1972

plaintiff's Social Security benefits were

terminated because she had remarried

before attaining the age of 60.

As indicated, plaintiff's 60th birthday

was on July 15, 1972, 55 days after she

remarried.

The Administrative Law Judge made

the following findings and conclusions:

“1. The plaintiff filed an applica-

tion for widow’s insurance benefits on

March 10, 1969, alleging disability

from February, 1969 at age 53.

“2. The claimant remarried in May,

oe and attained age 60 on July 15,

1 ,

“3. By remarrying prior to the at-

Ael2

tainment of age 60, the claimant lost

her right to,obtain widow's benefits on

the earnings record of her deceased

husband, Murray Kaufman.

“4. There was an overpayment cre-

ated in the sum of $265.

“5. The claimant was ‘without’

fault’ in the creation of such overpay-

ment.

“6. The recovery of such overpay-

ment will be waived, since it is

‘deemed’ that such adjustment will be

‘against equity and good conscience.’”

and it was the decision of the judge

“e ©* © that, based on her appli-

cation * * * the claimant is not

entitled to widow’s insurance benefits

under Section 202 of the Social Securi-

ty Act s 2 aa

This decision was affirmed by the Ap-

_ peals Council and plaintiff commenced

the present action within 60 days from

the date of such affirmance as required

by 42 U.S.C. § 405(g).

THE ESTOPPEL ARGUMENT

Plaintiff first claims that the govern-

ment should be estopped from terminat-

ing plaintiff's disability insurance bene-

fits by reason of the misrepresentation

of the local Social Security Office em-

ployee concerning the effects of plain-

tiff’s proposed remarriage on such bene-

fits and plaintiff's reliance thereon to

her alleged detriment.

The law ‘is and has for many years

been, however, that “estoppel cannot be

set up against the Government on the

basis of an unauthorized representation

or act of an officer or employee who is

without authority in his individual capac-

ity to bind the Government”. Byrne. Or-

ganization, Inc. v. United States, 287

F.2d 582, 587, 152 Ct.Cl. 578 (1961); Fed-

A-13

eral Crop Ins. Corp. a ee OS Se.

380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); Mas-

saglia v. 286 F.2d 258 (10th Cir.

1961); Flamm v. Ribicoff, 203 F.Supp.

507, 510 (S.D.N. Y. 1961); Terrell! v. Finch,

302 F.Supp. 1063 (S.D.Tex.1969); Rock v.

United States, 279 F.Supp. 96, 101 (S.D.

N.Y.1968).

As the Government points out, the

Terrell and Flamm cases, supra, are for

all intents and purposes here indistin-

guishable. In both cases the claimant

relied upon incorrect telephone informa-

tion from an employee of the Social Se-

curity Administration, as did the plain-

tiff in the case at bar, and in both cases

the Court denied plaintiff's motion for

summary judgment. In Terrell, where

claimant remarried in reliance on such

misinformation only 26 days before her

sixtieth birthday, the Court said (302

F.Supp. at p. 1064):

“Thus, if a widow remarries before

age sixty, she forfeits her right to

widow’s insurance benefits. It is clear

that plaintiff has not complied with

the provisions of the Act. Unless the

government is estopped to deny plain-

tiff the widow’s insurance benefits,

the decision of the hearing examiner

must be affirmed.

‘It is an established proposition that

estoppel cannot be set up against

the Government on the basis of an

‘unauthorized representation or act

of an officer or employee who is

without authority in his individual

capacity to bind the Government.’

Byrne Organization Inc. v. United

States, 287 F.2d 582, 587, 152 Ct.Cl.

578 (1961). See also, Massagiia v.

C.L.R., 286 F.2d 258 (10th Cir. 1961);

Ewing v. Risher, 176 F 2d 641 (10th

. Cir. 1949); Southern Hardwood

Traffic Assoc. v. United States, 283

A-14

F.Supp. 1013 (W.D.Tenn.1968);

Flamm v. Ribicoff, 203 F.Supp. 507

(S.D.N.Y.1961); Taylor v. Flemming,

186 F.Supp. 280 (W.D.Ark.1960).

“There is no doubt that the local em-

ployee of the Social Security Adminis-

tration who purportedly misinformed

plaintiff was not authorized to make

the representation in question.

“Ewing v. Risher, supra; Flamm v.

Ribicoff, supra; and Taylor v. Flem-

ming, supra, are all cases in which

local Social Security employees al-

legedly misinformed claimants. In

each case the courts ruled that estop-

pel would not apply. In Taylor, @

plaintiff seeking Gependent parent's

insurance benefits was erroneously in- -

formed that she did not have to file a

proof of support. In ruling that estop- -

pel did not apply the Court said:

‘It is apparent that plaintiff is at-

tempting to assert some type of es-

toppel against the defendant; how-

ever, no cases are cited in support of

this position. If Mrs. Taylor did

rely to her detriment upon such a

statement, it is indeed unfortunate.

However, the Government cannot be

estopped from insisting upon per-

formance of statutory conditions

precedent by the unauthorized acts

of an employee of a local Social Se-

curity Office.’ Id. at 284.

“The right to widow's insurance

benefits that plaintiff seeks to enforce

here is one created by statute, not by

common law. Plaintiff must comply

with the statutory requirements in or-

der to have an enforceable right. The

unauthorized act of a government em-

ployee cannot vary the requirements

established by Congress.” |

and in Flamm, the Court held (208

A-15

F.Supp. at p. 510):

“But even assuming that he did re-

Berger acted to her detriment, it is

plain that estoppel will not lie against

the Government under these circum-

ceive ‘misinformation’ on which Mrs. .

it

edge of and are bound by statutes and

lawfully promulgated regulations de-

spite reliance to their pecuniary detri-

ment upon incorrect information re-

ceived from Government agents or em-

ployees. Failure to comply with the

applicable statute and regulations pre-

cludes recovery against the Govern-

ment ‘no matter with what good rea-

son” the claimant believed she had

come within the requirements. Estop-

~~ pel will not lie regardless of the finan-

cia! hardship ‘resulting from innocent

‘gnorance.” Federal Crop Insurance

Corp. v. Merrill, 332 U.S. 380, 68 S.Ct.

i, 92 L.Ed. 10; Walker-Hill Co. v.

United States, 162 F.2d 259 (7 Cir.

_ 1947), cert. den. 332_U.S. 771, 68 S.Ct.

85, 92 L.Ed. 356; James v. United

States, 185 F.2d 115 (4 Cir. 1950).”

Plaintiff herself cites and relies in part

upon the Massaglia case, supra, but that

case clearly does not support her position

for there the late Chief Judge Murrah

held (286 F.2d at p. 262):

“e ° ©* But neither the duty of

consistency, nor the principles of equi-

table estoppel bind the Commissioner

to unauthorized acts of his agents,

Sanders v. Commissioner, 10 Cir., 225

F.2d 629, nor preclude him from cor-

recting mistakes of law in the imposi-

tion and computation of tax liability,

including the power to retroactively

correct his rulings, regulations and de- ~

cisions upon which taxpayers have re-

lied. Automobile Club of Michigan v.

Commissioner, 358 U.S. 180, 77 S.Ct.

A-16

707, 1 L.Ed.2d 746; * * °”

Corniel-Rodriguez v. Immigration and .

Naturalization Service, 582 F.2d 301 (2d

Cir. 1976), does not change the prin- |

ciples that control here. While that

case, which involved review of a deporta-

tion order, did hold that the government

- was estopped, the ruling was clearly lim-

ited to the facts before the Court. The

” major feature relied on by the Court of

Appeals in Corniel-Rodriguez to distin-

guish cases like Terrell] and Flamm

seems to have been that the defendant

was affirmatively required by regulation

to present correct immigration informa-

tion even in the absence of requests for

information, see 22 C.F.R. § 42.122(d).

Of course, no such regulation governs

Social Security Office employees.

{1} In short, as the law now stands

plaintiff may not invoke the doctrine of

estoppel to require that the government

pay her widow’s insurance benefits.

THE EQUAL PROTECTION

ARGUMENT

The plaintiff further claims that Sec-

tion 202(eX1KA) and (7) of the Social .

Security Act (42 U.S.C. § 402(e1)A)

and (B)) violates the Equa! Protection

Clause of the Constitution in that it dis-

criminates between women similarly sit-

uated solely on the basis of marital sta-

tus, granting disability benefits and wid-

ow’s insurance benefits to widows who

remain single but denying such benefits

to widows who remarry before they

reach 60. She also advances the closely

related argument that such Section and

Section 202(e)(4) of the Act violate the

Equal Protection and Due Process Claus-

es of the Constitution in that they dis-

criminate on the basis of age by grant-

ing widow’s insurance benefits to women .

A-17

who marry after age 60 and denying

such benefits to those who marry before |

attaining the age of 60.

{2] Since plaintiff received and has

been allowed to keep all of the widow’s

disability insurance benefits to which she

would have been entitled even if she had

not remarried, she lacks standing in this

case to raise a constitutional objection to

- the statutory provision for termination

of such benefits upon remarriage.

In other words, plaintiff received wid-

ow’s disability insurance benefits from

age 53 when she was first entitled to the

same through July 15, 1972 when she

attained age 60. Under 42 U.S.C.

§ 402(eX(1), if she had not remarried pri-

or to the age of 60 her benefits would

have been terminated since she would at

that date have become “entitled to an

old age insurance benefit equal to or ex-

ceeding the primary insurance amount of

such deceased individual”—i.e., she

would have been entitled to a widow's

insurance benefit.

{3} Plaintiff may also be understood

to argue that a widow who has not re-

married by age 60 can receive the stan-

dard widow’s insurance benefits, that

one who has remarried by age 60 cannot

do so, and that this constitutes discrimi-

nation based on marital status. As will

be discussed below, we cannot find that

Congress had no rational basis for con-

cluding that widows who remarry before

60 have less need for benefits than those

who do not. And unless widows who

remarry at any age, even in their 20's,

are to be given benefits, Congress had to

draw a line; we can only conclude that

Congress had a rational basis for deter-

mining that such a line should be drawn .

somewhere, and cannot say that age 60

is an unreasonable place to draw it.

A-18

Thus plaintiff in the case et bar has

no basis to make her claim that the stat-

ute discriminates between women simi-

larly situated solely on the basis of mari-—

tel status.

The second half of plaintiff's claim is,

as indicated, that the statute arbitrarily

discriminates on the basis of age. The

gist of this claim is that there is no

rational basis to presume that marriage

before age 60 improves a widow's eco-

nomic situation and eliminates her need

for social security benefits, but that mar-

riage after 60 does not eliminate the

need for social security benefits. This is,

plaintiff says, particularly true in cases

like hers where the claimant is disabled

both before and after age 60.

Stated in another way, plaintiff says

she was, on account of her disability, no

more able to obtain or hold a job before

_ 60 than she was after that age and Con-

' gress recognized that fact when they

lowered the age of entitlement to wid-

ow’s disability insurance benefits to 50.

From this, plaintiff concludes that Con-

gress must have overlooked inserting a

provision in the law which would have

enabled disabled widows in their 50's

who remarried to receive reduced bene-

fits in the same manner as widows who

remarried after 60.

Congress did not, however, overlook

such contingency. It specifical! orovid-

ed that disabled widows who remarried

in their 50’s would stop receiving bene-

fits on such remarriage. 42 U.S.C.

§ 402(e1). !

{4] Nor may it be said that no ration-

al basis exists for making such distinc-

tion. Congress may well have concluded,

for example, that a widow who remar-

ries during her 50’s (whether or not she

is receiving disability benefits during her

A-19

50's) will in all likelihood marry a man

who still has several years earning ca-

pacity from which she will derive sup-

: port, and that the same is not likely to

be true in the case of a widow 60 years

or more.

CONCLUSION

In reality, in the case at bar, plaintiff

when she remarried only 55 days short

of her 60th birthday was in the same

situation as all other widows just shy of

their 60th birthday, and not in a special

category on account of disability. By

reason of an unfortunate mistake she re-

married too soon and lost certain wid-

ow's benefits to which she might other-

wise have been entitled. This Court,

however, cannot rectify this situation:

only Congress can. F

Accordingly, defendant’s motion for

summary judgment must be granted and

plaintiff's cross-motion must be denied in

all respects.

SO ORDERED.

A-20

HOWARD K. WATKINS #056204

FRESNO COUNTY LEGAL SERVICES, INC.

505 Brix Building

1221 Fulton Mall

Fresno, California 93721

Telephone: 485-9880

Attorneys for Plaintiff

ORIGINAL

FILED

NOV 12 1975

Clerk, U. S. Dist. Court

Eastern District of California

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF CALIFORNIA

*x* *«

GLADYS P. WESTON, )

) Civil Action

Plaintiff, ) No. F-75-205

)

vs. ) AMENDED

) ORDER

F. DAVID MATTHEWS, ) (FR. CIV.

SECRETARY OF HEALTH, ) P. 52)

EDUCATION AND WELFARE, )

)

Defendant. )

A-21

This action came on for hearing be-

fore the Court, Honorable M.D. CROCKER,

United States District Judge, presiding; and,

after hearing from counsel upon plaintiffs'

and defendants’ counter motions for summary

judgment, the court makes the following Find-

ings of Facts and Conclusions of Law:

A. FINDINGS OF FACT.

1. On July 19, 1974, the plain-

tiff, a 62 year old widow, went to the Social

Security Administration office in Fresno,

California, for the specific purpose of filing

a formal written application for, inter alia,

Social Security widow's insurance benefits and

Supplemental Security Income (SSI) benefits

on the grounds that she was a widow and was

disabled due to heart disease and arthritis.

2. On the above-stated date and

location the Social Security Administration,

A-22

through one of defendants' authorized employ-

ees, specifically and erroneously refused to

give plaintiff a formal SSI application to fill

out. Plaintiff was erroneously told that she

could not apply for SSI benefits until her

claim for widow's benefits was processed.

At this time plaintiff was allowed to and pro-

ceeded to file a formal written application

for Social Security widow's benefits, having

been informed by defendants' employee that

this was the first step in obtaining SSI bene-

fits. Said widow's insurance benefits were

subsequently granted.

3. In August, 1974, plaintiff inquired

about SSI and widow's disability benefits at a

Portland, Oregon, Social Security Office.

This is when she first learned that she had a

right to apply for SSI benefits when she first

attempted to do so in the Fresno Office on

A-23

July 19, 1974, é

4. In October, 1974, after her re-

turn to Fresno, plaintiff filed a formal writ-

ten application for SSI benefits which was

subsequently granted effective October l,

1974, and based upon the same disabilities

that Mrs. Weston suffered when she first

attempted to apply in July 1974.

5. Plaintiff filed a timely adminis-

trative hearing request contending that her

SSI benefits should have commenced as of

July 1, 1974, the month in which she first

attempted to apply for said benefits.

6. The hearing was held on March

31, 1975. The Administrative Law Judge,

after hearing plaintiff's and her daughter's

testimony, found that plaintiff filed an effec-

tive application for SSI benefits on July 19,

1974 and that she was entitled to benefits as

A-24

of July 1, 1974.

7. The Appeals Council, reviewing

the case upon its own motion, reversed the

Administrative Law Judge's decision. It

concluded that since plaintiff did not file a

formal written application for SSI benefits,

prior to October 1, 1974, she was not entitled

to said benefits prior to that date.

8. Plaintiff timely commenced this

court action on October 3l, 1975.

9. But for defendants’ erroneous

refusal to allow plaintiff to submit a formal

written application for SSI benefits on July

- 19, 1974 and but for its erroneously inform-

ing her, on the same day, that nothing could

be done for her SSI claim until her applica-

tion for widow's insurance benefits was proc-

essed, she would have formally applied for

and would have been granted SSI benefits as

A-25

of July 1, 1974.

B. BASED ON THE FOREGOING FIND-

ING OF FACT, THE COURT MAKES

THE FOLLOWING CONCLUSIONS OF

LAW:

1. Defendant was legally required

to allow the plaintiff to apply for SSI benefits

when she first attempted to do so on July 19,

1974.

2. Defendant was also legally obliga-

ted to affirmatively assist Mrs. Weston in

completing a formal written application for

said benefits on the above date.

3. Except for not filing a formal

written application for SSI benefits, plaintiff

met all requirements for the entitlement of

SSI benefits effective July 1, 1974.

4. The refusal by defendant to allow

the plaintiff to complete and file a formal

written application for SSI benefits and his

A-26

misinforming her that she could not apply for

SSI benefits until her claim for Social Secu-

rity widow's benefits was processed were the

sole causes for plaintiff's failure to file a

formal written application for SSI benefits on

July 19, 1974.

5. The refusal by defendant to allow

the plaintiff to complete and file a formal

written application for SSI benefits and the

plaintiff's reliance on defendant informing

her that she could not apply for said benefits

until her application for widow's insurance

benefits was processed caused her not to be

granted benefits she was otherwise entitled to.

6. The plaintiff has met all the re-

quirements for estoppel to apply in this case

in accordance with the Ninth Circuit's stand-

ards for estoppel as enunciated in United

States v. Georgia-Pacific Co. 421 F. 2d 92,

A-27

96 (9th Cir. 1970) and United States v. Whar-

ton, 514 F. 2d 406, 412 (9h Cir. 1975)

7. The defendant's disobedience of

its own rules and regulations goes beyond

mere nonfeasance and constitutes affirmative

misconduct. This affirmative misconduct pro-

vides a further and distinct basis for estopping

the defendant in this case. See In the Matter

f 68 Filipino War Vets, 406

of Naturalization

F, Supp. 931, 938 (N. D. Cal. 1975)

8. Except for the filing of formal

written application for SSI benefits, plaintiff

met all legal requirements for the granting of

SSI benefits effective July 1, 1974.

C. BASED UPON THE FOREGOING

FINDINGS OF FACT AND CONCLU-

SION OF LAW, IT IS HEREBY

ORDERED THAT:

1. That defendant grant plaintiff SSI

benefits as of July 1, 1974 without requiring

ewe were ~2 ee

A-28

any further formal written application; and

2. That plaintiff be awarded her

costs, in the sum of $19.40.

Dated this 12th day of November,

1976.

ls/_ M.D. CROCKER

M., D,. CROCKER

United States District

Judge