Petition — Schweiker v. Hansen

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

80-1162

No.

JAN 12

YT 4

198}

nsas0°s070— mes svence. it CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1980

PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Vv.

ANN HANSEN

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

ALICE DANIEL

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

WILLIAM KANTER

MARK H. GALLANT

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No.

PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Vv.

ANN HANSEN

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

QUESTION PRESENTED

Whether the Secretary of Health and Human Serv-

ices may be equitably estopped from denying Social

Security Act benefits to a claimant who fails to satisfy

the requirements of the statute.

(i)

TABLE OF CONTENTS

Page

RES pane marr NI ON orn, oo Oe cislolaenonia 1

i ol LD ior cslincbpelialanbalelieameiiihdnelle 1

Statutes and regulation involved .................. i iesiibtaateadieadl 1

Statement ........ sistas ieee sdibiesini eet batibcashinsasotiacosdiibsasppiabseaaataiy 4

Reasons for granting the petition ...................................- 10

RARE ES RES Seca eRe Recent aneN Ono rE Hm SAM 19

IAI ical <usiehinrh cacti svi doles isiscieageaie aielaaneenntiniet la

IEE: icccvnicegiinsninssiimennaonieansonectiipiiadingieiainacuattmemiabian 48a

SIE TD. snscssinacnsendsovennnsitinipensintmhnvestineinbiehtontanalaiinnceuniasiniatals 49a

IE TP sdssinpvnindestnesbnidntiononnpitinieovnninrcietpanteilansniaiiaaiinala 50a

INTENT cst sterlessichiowescicdlennacdinpincntiondijnesihabensnamanehedneitmmpeiaiidit 5la

SEITE TIT," "sicsrisicsloesiitinailgnt ait she itseimnetitaciabiageinaimtcimdadaanalins 57a

II TIE ches Telia hbaepinsinnicigdsietgleintatinkigtbapipbiiagiuamenebitinaskameiion 59a

TABLE OF AUTHORITIES

Cases:

Automobile Club v. Commissioner, 353 U.S. 180.... 11

Bender Vv. Celebrezze, 332 F.2d 118 .......................... 12, 15

Braunstein Vv. Harris, 498 F. Supp. 1301 ................ 18

Califano v. Boles, 448 U.S. 282 .2000..2020.222..022eeeeeee eee 17

Carpenito v. Secretary of HHS, No. 78-2798-K (D.

Ts CIE sescichensatictehthininbscocccacspheenaenamdcaioh 18

Cheers v. Secretary of HEW, 610 F.2d 463, cert.

denied, No. 79-6856 (Oct. 14, 1980) ............ 9,15, 17,18

Clark v. Celebrezze, 344 F.2d 479 _....0000 0. 5, 12, 15

Coty Vv. Harris, 495 F. Supp. 462 ..............22....-....--2- 18

Coy V. Foleom, 228 F.2a S76 ............................ pancias 12, 15

Dizon Vv. United States, 381 U.S. 68 —....0........00000..... 12, 14

(III)

PREVIOUS PAGE WAS BLANK |

Cases—Continued -~— - | Page

Dziorny V. Secretary of HHS, No. 80-CO729 (E.D.

N.Y. Get. 30, 1080). .............. Hekssiinionanacechsgeibasieh 18

FCIC v. Merrill, 882 U.S. 380 ......................---- 6, 11, 12, 13

Goff v. Weinberger, Unempl. Ins. Rep. (CCH)

7 14,470, aff’d mem., 538 F.2d 309, cert. denied,

I a Sige cine 5

Golau v. Secretary of HHS, No. 79-3192 (D.D.C.

I I nodes acre tain caatinktaaoesaseainiadh 18

Goldberg v. Weinberger, 546 F.2d 477, cert. denied,

as ceaearesad astiinlg soadinowl 6

Gressley Vv. Califano, 609 F.2d 1266 ..............2.2....... 9,11,17

Gueranty Trust Co. v. York, 326 U.S. 99 ................ 15

Hari v. United States, 95 U.S. 316 .......................... li

eo AR 9,10, 11, 16

Johnson V. United States, 572 F.2d 697 ................ 5, 12,15

Larson V. Domestic & Foreign Commerce Corp.,

GR SRE PS ee Ra 12

Lee v. Munroe & Thornton, 11 U.S. (7 Cranch)

salts aiaiseceonad 11, 12

Leimbach v. Califano, 596 F.2d 300 ..............00000..... passim

Montana Vv. Kennedy, 366 U.S. 308 .................. 9,10, 11, 14

Parker Vv. Finch, 827 F. Supp. 198 ..........................-- 5

Pine River Logging Co. v. United States, 186 U.S.

RAL RATT tee. RE NITIES. Oe CEO BCE AERO SI IER 11

Rock Island, Arkansas & Louisiana Railroad Co. v.

United States, 264 U.S. 141 ................2...--.0-ccn000e0- 16

Simon v. Califano, 593 F.2d 121 ................ 9,11, 14, 15,17

Seer VW. TI, WI Ui OD wcvescnchcceccncscnccecesesesseseve 12, 16

Sutton v. United States, 256 U.S. 575 .....002002..0000... 11

United States v. Caceres, 440 U.S. 741.0000... 0200000.... 13

United States v. Kubrick, 444 U.S. 111 -200000000000.... 15

United States v. San Francisco, 310 U.S. 16 .......... 12,14

United States v. Stewart, 311 U.S. 60 0000000000000... 11

United States v. Testan, 424 U.S. 392 ...000000. 12

Utah v. United States, 284 U.S. 584 000. 11

Utah Power & Light Co. v. United States, 243 U.S.

RUIN E a eflayeria eae BCU np, OP ARREARS Sor koe ene ae 11

Weinberger Vv. Wiesenfeld, 420 U.S. 686 .....0...0...0.... 4

Wilber National Bank v. United States, 294 U.S.

a a eeu 11

Statutes and regulations: Page

Federal Tort Claims Act, 28 U.S.C. 2401 (b) .......... 15

Social Security Act, as amended, 42 U.S.C. 301

et seq.:

Section 202(g) (1), 42 U.S.C. 402(g) (1)........ passim

Section 202(g) (1) (D), 42 U.S.C. 402(g) (1)

ce usaecaah saad 2,4,5,7

Section 202(j) (1), 42 U.S.C. 402(j) (1).......... 16-17

Section 202(j) (1), 42 U.S.C. (Supp. III)

ca ee 2-3, 4,5, 14

Section 205(g), 42 U.S.C. 405(g) 00. 7

Social Security Amendments of 1972, Pub. L. No.

92-603, Section 114(c), 86 Stat. 1348, 42 U.S.C.

CRirree Ge, I RED GUD once d nose cnncncscccccnncess

a eee cevmanbobads

RELIES SO CLE ee

20 C.F.R.:

a woliamnatal

Section 404.601(c) (1974) 0.0...

Section 404.601(d) (1974) 000.

Sections 404.602-404.614 000

Miscellaneous:

H.R. Rep. No. 728, 76th Cong., lst Sess. (1939) ....

Social Security Administration, Office of Manage-

ment and Administration, The Year in Review:

The Administration of Social Security Programs

I I ek alee pe nt

44 Fed. Reg. 37207, 37209-37210 (1979) ...............

GE FO. TG, GR COD vnc cckecsncccevcccvcscccccsscscesovccss

The Solicitor General, on behalf of the Secretary of

Health and Human Services, petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-47a) is reported at 619 F.2d 942. The opinions

of the district court (App. E, infra, 51a-56a), the

Social Security Appeals Council (App. F, infra, 57a-

58a), and the Administrative Law Judge (App. G,

infra, 59a-74a) are not reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 48a) was entered on March 24, 1980. A pe

tition for rehearing was denied on September 16,

1980 (Apps. C & D, infra, 49a-50a). On December 9,

1980, Justice Marshall extended the time for filing

a petition for a writ of certiorari to and including

January 12, 1981. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTES AND REGULATION INVOLVED

1. Section 202(g)(1) of the Social Security Act,

as amended, 42 U.S.C. 402(g) @), provides in perti-

nent part:

(g)(1) The widow and every surviving divorced

mother (as defined in section 416(d) of this title)

of an individual who died a fully or currently in-

sured individual, if such widow or ree

divorced mother—

(1)

(A) is not married,

(B) is not entitled to a widow’s insurance

benefit

benefits, or is entitled to old-age insurance

benefits each of which is less than three-

fourths of the primary insurance amount of

such individual,

(D) has filed application for mother’s in-

surance benefits, or was entitled to wife’s

insurance benefits on the basis of the wages

and self-employment income of such individ-

ual for the month preceding the month in

which he died,

(E) at the time of filing such application

has in her care a child of such individual en-

titled to a child’s insurance benefit, and

(F) in the case of a surviving divorced

mother—

(i) the child referred to in subpara-

graph (E) is her son, daughter, or

legally adopted child, and

(ii) the benefits referred to in such

subparagraph are payable on the basis

of such individual’s wages and self-

employment income,

shall (subject to subsection (s) of this section)

be entitled to a mother’s insurance benefit for

each month, beginning with the first month after

August 1950 in which she becomes so entitled to

such insurance benefits * * *.

2. Section 202(j)(1) of the Social Security Act,

as amended, 42 U.S.C. (Supp. III) 402(j) (1), pro-

vides:

(j) (1) Subject to the limitations contained in

paragraph (4), an individual who would have

been entitled to a benefit under subsections (a)

to (g), or (h) of this section for any month after

August 1950 had he filed application therefor

prior to the end of such month shall be entitled

to such benefit for such month if he files appli-

cation therefor prior to the end of the twelfth

month immediately succeeding such month. Any

benefit under this subchapter for a month prior

to the month in which application is filed shall be

reduced, to any extent that may be necessary,

so that it will not render erroneous any benefit

which, before the filing of such application, the

Secretary has certified for payment for such

prior month.

3. 20 C.F.R. 404.601 (1974) provides in pertinent

part:’

fied, the term “application” refers only to an

application on a form prescribed in § 404.602,

and includes an application for monthly benefits,

a lump-sum death payment, a recomputation of a

primary insurance amount, and the establish-

ment of a period of disability.

(d) Filing of application on prescribed form.

Except as provided in §§ 404.611, 404.613, and

404.614, an individual has not “filed an applica-

tion” for purposes of sections 202, 216(i), or

223, of the Act * * * until an application on a

form prescribed in § 404.602 has been filed in

accordance with the regulations in this subpart.

1 These provisions were recodified in simplified form, with-

out substantive change, effective June 26, 1979. See 44 Fed.

Reg. 37207, 37209-37210 (1979); 20 C.F.R. 404.602-404.614.

how

STATEMENT

1. With some limitations and exceptions, Section

202(g) of the Social Security Act provides that the

surviving parent of the child of a deceased wage

earner insured under the Act is entitled to monthly

benefits based on the deceased’s prior earnings. 42

U.S.C. 402(g). See Weinberger v. Wiesenfeld, 420

U.S. 636 (1975).? Before January 1, 1973, such bene-

fits were payable only to a parent who was married

to, or dependent on, the wage earner at the time of

his death. Section 114(c) of the Social Security

Amendments of 1972 amended the Act to provide

that the surviving divorced parent could receive social

security benefits regardless of actual dependency. See

Pub. L. No. 92-608, Section 114(c), 86 Stat. 1348;

45 Fed. Reg. 68931 (1980).

Section 202(g) (1) sets forth various requirements

regarding eligibility for parent’s benefits. In par-

ticular, Section 202(g)(1)(D) requires that the

claimant “has filed application” for the benefits. 42

U.S.C. 402(g)(1)(D). Section 202(j) (1), in turn,

provides that any “individual who would have been

entitled to [parent’s] benefit[s] * * * for any month

after August 1950 had he filed application therefor

prior to the end of such month” may receive up to 12

months’ retroactive benefits calculated from the date

of application. 42 U.S.C. (Supp. III) 402(j) (1).

Since 1955, the regulations implementing these provi-

sions have made clear that only a written application

will satisfy the “filed application” requirement of Sec-

2In Wiesenfeld, the Court concluded that Section 202(g)

was unconstitutional insofar as it authorized benefits for

surviving mothers but not for surviving fathers. Such

“‘widow’s” benefits are now payable to widowers as well. See

20 C.F.R. 404.835-404.837; 45 Fed. Reg. 68931 (1980).

tions 202(g)(1)(D) and 202(j)(1). 20 C.F.R.

404.602, 404.610-404.614; App. A, infra, 8a. See,

e.g., Leimbach v. Califano, 596 F.2d 300, 304 (8th

Cir. 1979); Johnson v. United States, 572 F.2d 697

(9th Cir. 1978); Goff v. Weinberger, Unempl. Ins.

Rep. (CCH) § 14,470 (D. Conn. 1975), aff’d mem.,

538 F.2d 309 (2d Cir.), cert. denied, 429 U.S. 896

(1976) ; Clark v. Celebrezze, 344 F.2d 479 (1st Cir.

1965); Parker v. Finch, 327 F. Supp. 1938 (N.D.

Ga. 1971).

2. Respondent, a divorced mother of two whose

former husband died in 1967, filed a written applica-

tion for mother’s benefits in May 1975. Pursuant to

Section 202(g)(1), the Social Security Administra-

tion (“SSA”) awarded respondent benefits retroac-

tive to May 1974—tthe 12-month period prior to her

written application. Respondent contended, however,

that she was entitled to an additional year’s retroac-

tive benefits. She asserted that she had visited the

SSA claims office in Newport, Vermont, in May 1974,

and had made an oral inquiry about her eligibility for

benefits at that time. She further claimed that the

SSA representative had incorrectly informed her that

she was ineligible. The SSA denied this claim and

respondent timely requested a hearing (Tr. 3; App.

A, infra, 2a, 5a; App. G, infra, 61a).

At an evidentiary hearing before an administra-

tive law judge, respondent testified that on June 12,

1974, she met with an SSA field representative at

the Newport office for 10-15 minutes.* Respondent

claimed that she told the agency employee that she

was the divorced mother of two boys and that the

employee replied that she was ineligible for benefits

because she was divorced (App. G, infra, 61a-62a; Tr.

® Respondent had previously claimed that this meeting had

occurred in May 1974 (Tr. 3; App. A, infra, 27a).

5-8). Respondent did not claim, however, that she ever

told the representative that her former husband, who

would have been 48 years old at that time, was in fact

dead (App. A, infra, 10a, 27a-29a). Moreover, al-

though the SSA office records show that respondent

and her two sons met with a field representative on

June 12, the representative, who conducts thousands

of interviews annually, was unable to recall the meet-

ing or any conversation that may have occurred

(App. G, infra, 63a).*

Based on this evidence, the ALJ determined that

respondent had made an oral inquiry about her eligi-

bility for benefits on June 12, 1974. The ALJ fur-

ther found that at that meeting, the SSA representa-

tive had not “refuse[d] to give [respondent] an appli-

cation[, but that h]Je merely advised [respondent]

regarding her eligibility and [that] she decided not

to press the issue” until the following year (App.

G, infra, 64a). Accordingly, the ALJ concluded that

respondent had not satisfied the written application

requirement for benefits in June 1974 (id. at 64a-

65a, 73a). In addition, relying on FCIC v. Merrill,

332 U.S. 380 (1947), and Goldberg v. Weinberger,

546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S.

937 (1977), the ALJ rejected respondent’s conten-

tion that the SSA should be estopped from requiring

a written application because of the representative's

incorrect advice regarding her eligibility (App. G,

infra, 67a-72a). The Social Security Appeals Coun-

cil affirmed the ALJ’s decision (App. F, infra, 57a-

58a).

* We further note that the office records, which refer to a

post-adjudicative inquiry, indicate that respondent discussed

her sons’ continuing eligibility and not her own (App. A,

infra, 3a).

3. Respondent pursued her claim for an addi-

tional award of retroactive benefits by filing this suit

in the United States District Court for the District

of Vermont. See 42 U.S.C. 405(g). In April 1979,

the district court held that the SSA regulations re-

quiring a written application for benefits are “too

restrictive” as applied to this case (App. E, infra,

54a). Observing that the claims representative had

failed to suggest that respondent file an application

to resolve her doubtful eligibility, the court con-

cluded that respondent’s oral inquiry constituted a

“filed application” within the meaning of Section

202(g)(1)(D) of the Act (App. E, infra, 54a-55a).

Hence, the district court granted respondent’s motion

for summary judgment and remanded the case to the

Secretary for an additional award of benefits (id. at

56a).

On appeal, a divided panel of the court of appeals

affirmed on other grounds. The court first held that

the SSA regulations requiring a written application

are consistent with the statutory language and serve

the substantial congressional policy of limiting fraud

and confusion in the administration of the Act (App.

A, infra, 8a-9a). The court therefore concluded that

the district court had erroneously disregarded the

“valid implementing regulations * * * [merely be-

cause] their application appears to be somewhat un-

fair or particularly onerous” (id. at 9a). See also

id. at 14a (Friendly, J., dissenting).

Although recognizing that, at least in the absence

of affirmative misconduct, this Court has never sug-

gested that the government may be estopped (App.

A, infra, 1la-12a), the court of appeals nevertheless

held that the Secretary should be estopped from de-

nying respondent additional retroactive benefits. The

court observed that the claims representative had

failed to comply with the SSA internal claims man-

ual, which indicates that a claimant should be en-

couraged to file an application even in doubtful cases

(id. at 10a-lla). The. court of appeals conceded

that the claims manual was not a legally binding

regulation and that the representative’s omission did

not otherwise constitute affirmative misconduct (id.

at 12a). The court concluded, however, that appiica-

tion of the estoppel doctrine is warranted in these

circumstances because, in its view, respondent failed

to satisfy an “essentially procedural requirement”

for benefits rather than a substantive condition of

eligibility (ibid.). Rejecting the contrary conclusion

of the Eighth Circuit in Leimbach v. Califano, 596

F.2d 300 (1979), on “facts quite close to the present

ones” (App. A, infra, 12a), the court held that the

government may be estopped “where (a) a procedural

not a substantive requirement is involved and (b) an

internal procedural manual or guide or some other

source of objective standards of conduct exists and

supports an inferenc of misconduct by a Government

employee” (id. at 14a).°

5 Judge Newman filed a concurring opinion (App. A, infra,

35a-47a). He stated that “when a claimant is within the sub-

stantive scope of the pertinent legislative policy, but ineligible

because of a procedural default attributable in part to conduct

of a government official, the rationale for rejecting estoppel or

limiting it to cases of affirmative misconduct disappears”

(App. A, infra, 39a). Hence, “public policy favors the grant-

ing of the benefit, not its denial” in such circumstances, and

therefore when a claimant’s “failure to observe the procedural

requirement is caused by conduct of a government official, an

estoppel to prevent the Government from asserting procedural

noncompliance means that the substantive legislative policy

will be carried out” (ibid.). Thus, in Judge Newman’s view,

Judge Friendly dissented (App. A, infra, 14a-35a).

He pointed out (App. A, infra, 15a) that “[a] con-

trolling decision of the Supreme Court has established

for more than three decades that all courts must ‘ob-

serve the conditions defined by Congress for charging

the public treasury.’ Federal Crop Ins. Corp. v. Mer-

rill, 332 U.S. 380, 385 (1947).” Citing Montana v.

Kennedy, 366 U.S. 308 (1961), and INS v. Hibi, 414

U.S. 5 (1973), Judge Friendly further observed that

subsequent to Merrill, the Court had declined to estop

the government in far more compelling circumstances

than those involved in this “run of the mill’ case con-

cerning the extent of retroactive social security bene-

fits (App. A, infra, 16a-18a, 26a). Judge Friendly

also noted (id. at 22a-26a, 35a) that the majority’s

decision was in conflict with the decisions of several

courts of appeals, including Leimbach v. Califano,

supra; Cheers v. Secretary of HEW, 610 F.2d 463

(7th Cir. 1979), cert. denied, No. 79-6856 (Oct. 14,

1980) ; Gressley v. Califano, 609 F.2d 1265 (7th Cir.

1979); and Simon v. Califano, 593 F.2d 121 (9th

Cir. 1979).

Judge Friendly stated that such a radical depar-

ture from well established precedent was particularly

unwarranted in this case. He observed that respond-

ent apparently had not informed the claims repre-

sentative that her former husband, who would have

been only 48 at the time of the interview, was de-

ceased, and that the representative’s advice regarding

respondent’s “ineligibility was thus not wrong on the

basis of what he was proved to have known” (App.

A, infra, 29a). In addition, Judge Friendly asserted

that the representative’s violation of a non-binding

the claim representative’s ‘noncompliance with the internal

office manual is not a dispositive factor in favor of [respond-

ent’s] claim” (id. at 42a n.6).

internal claims manual fell far short of constituting

affirmative misconduct, and he criticized the distinc-

tion between procedural and substantive requirements

as unworkable and without merit (id. at 33a-34a).

Finally, Judge Friendly warned that the majority’s

decision would subject the public fisec to thousands

of claims that the government could not effectively

rebut and that would cost the government millions

of dollars merely to investigate and process (id. at

14a-15a).

On September 16, 1980, the court of appeals de-

nied the government’s petition for rehearing with

suggestion for rehearing en banc by a 5-5 vote.°

REASONS FOR GRANTING THE PETITION

This case presents important questions concerning

whether and in what circumstances the government

may be equitably estopped. The court of appeals has

held that a government employee’s allegedly negligent

misadvice to a claimant for Social Security Act bene-

fits estops the government from denying benefits to

a person who is statutorily ineligible for them, at least

where the claimant has failed to satisfy only a “pro-

cedural” rather than a “substantive” requirement of

law. That decision cannot be reconciled with the long

line of precedent in this Court establishing that the

government may not be estopped, unless, perhaps, the

government has engaged in serious affirmative miscon-

duct. See, e.g., INS v. Hibi, 414 U.S. 5, 8 (1978);

Montana v. Kennedy, 366 U.S. 308, 314 (1961);

6 Judges Mansfield, Mulligan, Timbers, Van Graafeiland,

and Meskill voted in favor of rehearing en banc. Judge

Friendly is a senior judge and therefore did not participate in

the vote. See 28 U.S.C. 46(c).

FCIC v. Merrill, 322 U.S. 380 (1947). In addition,

the decision below is in square conflict with the de-

cisions of several other courts of appeals. See, e.g.,

Gressley v. Califano, 609 F.2d 1265 (7th Cir. 1979) ;

Leimbach v. Califano, 596 F.2d 300 (8th Cir. 1979) ;

and Simon v. Califano, 593 F.2d 121 (9th Cir. 1979).

Because the decision of the court of appeals threat-

ens the sound administration of the Social Security

program: and encourages. groundless and unau-

thorized claims against the public treasury, review

by this Court is warranted.

1. a. Since the earliest days of the Nation, this

Court has repeatedly and consistently held that the

government may not be equitably estopped from en-

forcing the laws even though private parties may, as

a result, suffer hardship in particular cases. See,

e.g., Lee v. Munroe & Thornton, 11 U.S. (7 Cranch)

366, 369-870 (1813); Hart v. United States, 95 U.S.

316, 318-319 (1877); Pine River Logging Co. v.

United States, 186 U.S. 279, 291 (1902); Utah

Power & Light Co. v. United States, 243 U.S. 389,

408-409 (1917); Sutton v. United States, 256 U.S.

575, 579 (1921); Utah v. United States, 284 U.S.

534, 545-546 (1932); Wilber National Bank vy.

United States, 294 U.S. 120, 123-124 (1935) ; United

States v. Stewart, 311 U.S. 60, 70 (1940); FCIC v.

Merrill, 332 U.S. 380, 384 (1947); Automobile Club

v. Commissioner, 353 U.S. 180, 188 (1957) ; Montana

v. Kennedy, 366 U.S. 308, 814-815 (1961); INS v.

Hibi, 414 U.S. 5, 8 (1973). Indeed, we are aware

of no decision of this Court holding that an estoppel

would or should lie against the government in any

circumstance."

7In INS vy. Hibi, supra, 414 U.S. at 8-9, and Montana v.

Kennedy, supra, 366 U.S. at 314-315, the Court declined to

This venerable rule is predicated on the doctrines

of sovereign immunity and separation of powers. See,

e.g., United States v. Testan, 424 U.S. 392, 399

(1976); Dixon v. United States, 381 U.S. 68, 73

(1965); Snyder v. Buck, 340 U.S. 15, 19 (1950);

Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 687-688 (1949); United States v. San

Francisco, 310 U.S. 16, 29-82 (1940). If the ju-

diciary were free to impose otherwise unauthorized

liability on the government based simply on its no-

tions of equity, the sovereign would be virtually

powerless to control and protect the public fise. See,

e.g., FCIC v. Merrill, supra, 332 U.S. at 385; Lee v.

Munroe & Thornton, supra, 11 U.S. (7 Cranch) at

369-370. Accordingly, it is well settled that “all

courts [must] observe the conditions defined by Con-

gress for charging the public treasury.” FCIC v.

Merrill, supra, 332 U.S. at 385. The decision of the

court of appeals strays far from these principles.

As a condition for obtaining Social Security bene-

fits, Congress has long required that a claimant file

an application. See, e.g., Leimbach v. Califano, supra,

596 F.2d at 303-304; Johnson v. United States,

572 F.2d 697, 699 (9th Cir. 1978); Clark v. Cele-

brezze, 344 F.2d 479, 481 (1st Cir. 1965); Bender

v. Celebrezze, 332 F.2d 118, 115 (7th Cir. 1964) ; Coy

v. Folsom, 228 F.2d 276, 278-279 (8d Cir. 1955);

H.R. Rep. No. 728, 76th Cong., Ist Sess. 35 (1939).

The requirement of a written application reduces the

determine whether the government would be estopped from

denying citizenship in a case involving serious affirmative

misconduct on the government’s part. As the court of appeals

recognized (App. A, infra, 12a) and as we discuss below (see

pages 14-15, infra), this case does not involve affirmative

misconduct.

“possibility of fraud, confusion and laxity” in the ad-

ministration of the Act. App. A, infra, 9a; Leimbach

v. Califano, supra, 596 F.2d at 303-304. At the same

time, Congress has recognized that many claimants

may not file for benefits immediately upon becoming

eligible and has therefore provided for retroactive

benefits limited to the 12-month period prior to filing.

Particularly because, as Judge Friendly recognized

(App. A, infra, 15a), the government has no effective

means of refuting claims based on alleged oral appli-

cations, the decision of the court of appeals substan-

tially undermines the congressional limitations and re-

strictions placed on entitlement to social security

benefits.

b. The court of appeals concluded that the Sec-

retary should be estopped from denying respondent

benefits because the SSA claims representative mis-

informed her about her eligibility and failed to en-

courage her to file an application.’ But this Court

has repeatedly held that even substantial detrimental

reliance on a government official’s misinformation

does not give rise to an estoppel. In FCIC v. Merrill,

supra, for example, a government agent incorrectly

informed a wheat farmer that a certain kind of

planting would be insured under the Federal Crop

8Two judges of the court of appeals correctly concluded

that the representative’s apparent violation of the internal

claims manual is not dispositive (App. A, infra, 19a-30a, 42a

n.6). See pages 8-9 note 5, supra. This unpublished house-

keeping manual, which is 13 volumes and 8,000 pages in

length, is not a legally binding regulation. See United States

v. Caceres, 440 U.S. 741 (1979); 5 U.S.C. 553. Moreover,

holding an agency to a higher standard because it issues in-

structions and guidelines for its employees would have the de-

leterious effect of discouraging the promulgation of such guide-

lines. See United States v. Caceres, supra, 440 U.S. at 755-756.

Insurance Act. See 332 U.S. at 382. Relying on this

information, the farmer planted his wheat crop,

which was subsequently destroyed. This Court held

that the government could not be estopped from deny-

ing insurance benefits to the farmer, because the crop

was in fact not insurable under the FCIC’s regula-

tions. See also, e.g., Montana v. Kennedy, supra, 366

U.S. at 314-815 (detrimental reliance on official mis-

information results in loss of citizenship); Dixon v.

United States, supra, 381 U.S. at 73 (detrimental

reliance on erroneous tax ruling); United States v.

San Francisco, supra, 310 U.S. at 32 (detrimental

reliance on cironeous administrative rulings results

in loss of land).

A fortiori, there is no basis for an estoppel in this

ease. At worst, the SSA field representative negli-

gently, but in good faith, misinformed respondent be-

cause he was apparently unaware of a recent change

in the law. See page 4, supra. Alternatively, the

field representative’s mistake may well have been

attributable to respondent’s failure to inform him

that her former husband, who would have been only

43 in 1974, had died in 1967. See App. A, infra, 10a,

28a-29a. Furthermore, respondent’s reliance on this

misstatement was not irrevocable, as was the case in

Merrill: she was not prevented from filing an ap-

plication for benefits, and she in fact did so within

a year. Finally, respondent’s actual award of retro-

active benefits under Section 202(j)(1) covers the

date of her oral inquiry; her only loss concerns ad-

ditional retroactive benefits prior to the 12-month

period of limitations. See Simon v. Califano, supra,

593 F.2d at 123. In sum, even if there should be an

exception to the established rule against estepping the

government, “it would be hard to find a spongier

factual launching pad for the” court of appeals’ de-

parture from prior precedent. App. A, infra, 26a-

27a (Friendly, J., dissenting).

ce. The court of appeals’ erroneous application of

estoppel principles cannot be justified on the ground

that respondent failed to satisfy a “procedural”

rather than a “substantive” requirement of the So-

cial Security Act. At the outset, we submit that, as

several courts of appeals have concluded, the filing

requirement under the Act is a “substantive condi-

tion of eligibility.” Johnson v. United States, supra,

572 F.2d at 699. See, e.g., Cheers v. Secretary of

HEW, 610 F.2d 463, 466-467 (7th Cir. 1979), cert.

denied, No. 79-6856 (Oct. 14, 1980); Simon v. Cali-

fano, supra, 598 F.2d at 122; Clark v. Celebrezze,

supra, 344 F.2d at 481; Bender v. Celebrezze, supra;

Coy v. Folsom, supra, 228 F.2d at 278-279. In addi-

tion, the 12-month limitation period also at issue in

this case is a substantive limitation on the right to

benefits created by Congress. Indeed, just last Term,

this Court emphasized that the statute of limitations

accompanying a waiver of sovereign immunity “is a

condition of that waiver” that may not be extended or

ignored. See United States v. Kubrick, 444 U.S. 111,

117-118 (1979) (construing statute of limitations

under the Federal Tort Claims Act, 28 U.S.C.

2401(b)). Cf. Guaranty Trust Co. v. York, 326 U.S.

99, 108-109 (1945).

In any event, this Court has repeatedly declined to

estop the government with regard to arguably “pro-

cedural”’ requirements and limitations. For example,

in INS v. Hibi, supra, a Filipino soldier who had

served the United States in World War II was “sub-

stantively” entitled to become a United States citizen

under a special Act of Congress. Notwithstanding

allegations that the government intentionally failed

to notify the soldier of his rights or to provide him

with the means to apply for naturalization, the Court

held that the government was not estopped from de-

nying the soldier citizenship because of his failure to

file a timely application.® And in Snyder v. Buck,

supra, 340 U.S. at 19, the Court held that the gov-

ernment could not be estopped from relying on a pro-

cedural provision concerning timely substitution of

parties. See also Rock Island, Arkansas & Louisiana

Railroad Co. v. United States, 254 U.S. 141, 148

(1920).

2. As the court of appeals apparently recognized

(see App. A, infra, 12a-18a, 22a-26a, 41a n.4), its

decision is in direct conflict with the decisions of

several other courts of appeals. For example, in

Leimbach v. Califano, supra, 596 F.2d at 304-305,

a widower made several oral inquiries at an SSA

office between 1968 and 1972 about the eligibility of

his children for social security benefits. On each

occasion, he was erroneously informed that they were

not eligible, and, like respondent, he initially decided

not to file a written application. See 596 F.2d at

302. Eventually, in June 1975, Leimbach filed a

written application for benefits on his children’s be-

half and received 12 months’ retroactive benefits

pursuant to Section 202(j) (1) of the Act, 42 U.S.C.

® Justice Douglas dissented, stating that the Court’s de-

cision would ‘‘frustrate the congressional purpose and * * *

deny substantive rights” under the Act. 414 U.S. at 11. In

holding that application of estoppel in this case “would fulfill

the fundamental legislative goal to grant [respondent] the

benefits she seeks” (App. A, infra, 12a), the court of appeals

has apparently followed the dissenting opinion in Hibi and not

the Court’s decision.

10In fact, on one occasion Leimbach was told that there

was no purpose to his filing an application—a substantially

more egregious misstatement than was made to respondent.

See 596 F.2d at 305.

402(j) (1). In rejecting the widower’s claim for addi-

tional benefits, the court of appeals held that he had

not satisfied the written application requirement un-

til June 1975 (596 F.2d at 302-304), and it observed

that its decision was “‘in accord with the general rule

that estoppel will not lie against the government for

the misrepresentations of its agents” (id. at 305).

Similarly, the Seventh and Ninth Circuits have

concluded that the Secretary may not be estopped

from denying benefits to claimants merely because

an SSA representative misinformed the claimant

or otherwise negligently handled his claim. Thus, in

Simon v. Califano, supra, an SSA trainee -vho aided

the claimant in filling out an application erroneously

indicated on the form that the claimant had no chil-

dren. When this error was discovered several years

later, the claimant argued that the government should

be estopped from denying retroactive benefits to her

children. The Ninth Circuit held, however, that “the

doctrine of equitabie estoppel may still not be in-

voked against the government”? merely because a

government official has been negligent. 593 F.2d at

123. Likewise, the Seventh Circuit recently re-

affirmed that a claimant’s detrimental “reliance on

misinformation provided by a Government employee

does not provide a basis for ah estoppel.” Gressley

v. Califano, supra, 609 F.2d at 1267. See also Cheers

v. Secretary of HEW, supra, 610 F.2d at 468-469.

3. The estoppel issue presented by this case is

important. The Department of Health and Human

Services, through its 80,000 employees, processes

millions of claims and conducts innumerable oral

interviews each year. See Califano v. Boles, 443 U.S.

282, 288-285 (1979); Social Security Administra-

tion, Office of Management and Administration, The

Year in Review: The Administration of Social Secur-

ity Programs 1978 ii, v, 7, 12-13, 20, 70-74 (1979).

As evidenced by the allegations in this case, the Sec-

retary has no effective means of rebutting claims

such as respondent’s, which are allegedly based on

ancient, unrecorded conversations. See Apn. A, infra,

14a-15a. Furthermore, even if the SSA could refute

such claims, it would be required to process and in-

vestigate such claims at a substantial fiscal and

administrative cost. Thus, the decision of the court

below will substantially undermine the written ap-

plication rule that is essential to limiting “fraud, con-

fusion and laxity” in the administration of vast

social welfare programs and will result in a flood of

litigation involving unverifiable and, often, fraud-

ulent claims. See Leimbach v. Califano, supra, 596

F.2d at 304; Cheers v. Secretary of HEW, supra,

610 F.2d at 466-467.

These harms are not speculative. Relying on the

decision of the court of appeals, several district courts

within and without the Second Circuit have already

remanded cases to the Secretary for hearings re-

garding alleged oral applications for benefits. Indeed,

in Dziorny v. Secretary of HHS, No. 80-C0729

(E.D.N.Y. Oct. 20, 1980), the district court reversed

a denial of retroactive benefits and ordered the Sec-

retary to conduct a hearing about an alleged oral

misrepresentation that had occurred 17 years earlier.

See also, e.g., Braunstein v. Harris, 498 F.Supp. 1301

(D.D.C. 1980); Carpenito v. Secretary of HHS, No.

78-2798-K (D. Mass. May 29, 1980) ; Coty v. Harris,

495 F. Supp. 452 (W.D. Va. 1980); Golau v. Secre-

tary of AHS, No. 79-3192 (D.D.C. May 29, 1980).

In sum, the requirement that an application be

made in writing is essential to the efficient operation

of social welfare programs as massive as those cre-

ated by the Social Security Act. It would Jead to

intolerable burdens, and would require the expendi-

ture of public monies contrary to the dictates of

Congress, if claimants could obtain benefits by alleg-

ing that they were dissuaded from filing an applica-

tion by incorrect advice, often from anonymous

government employees. As Judge Friendly observed

(App. A, infra, 14a-15a), the court of appeals has

“open[ed] the door of the Federal fise not simply to

[respondent] whom we at least know to have visited

the HEW office and said something, but to thousands

who merely will make a detailed claim that they have

done so and whom there is no effective means of re-

butting.” The court of appeals’ unprecedented and

erroneous application of equitable estoppel against the

government warrants review by this Court.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

ALICE DANIEL

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

WILLIAM KANTER

MARK H. GALLANT

Attorneys

JANUARY 1981

APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

No. 824, Docket 79-6125

ANN HANSEN, APPELLEE

PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH,

EDUCATION AND WELFARE, APPELLANT

Argued Oct. 26, 1979

Decided March 24, 1980

Before FRIENDLY, OAKES and NEWMAN, Cir-

cuit Judges.

OAKES, Circuit Judge:

This appeal does not involve a great deal mone-

tarily: appellee is seeking mother’s insurance benefits,

as provided in 42 U.S.C. § 402(g)* for the year pre-

142 U.S.C. § 402(g) (1) provides in pertinent part:

(g)(1) The widow and every surviving divorced

mother... of an individual who died a fully or currently

insured individual, if such widow or surviving divorced

mother—

(D) has filed application for mother’s insurance bene-

fits, or was entitled to wife’s insurance benefits on the

basis of the wages and self-employment income of such

individual for the month preceding the month in which

he died.

(E) at the time of filing such application has in her

care a child of such individual entitled to a child’s insur-

ance benefit, and

(F) in the case of a surviving divorced mother—

ceding June 12, 1974. Yet the case does raise a sig-

nificant issue of estoppel against the Government.

The Department of Health, Education and Welfare

(HEW)? appeals from a decision of the United

States District Court for the District of Vermont,

Albert W. Coffrin, Judge, holding for the applicant

and overturning an earlier decision of the administra-

tive law judge that had been upheld by the HEW

Appeals Council.

Appellee, whose former husband died in 1967, be-

came eligible for benefits as a divorced mother when

the Social Security Amendments of 1972, Pub. L. No.

92-608, 86 Stat. 1829, § 114(c), took effect on Janu-

ary 1, 1973. She did not, however, file the required

written application, see 42 U.S.C. § 402(g)(1)(D),

until May 1975. The estoppel question arises from

(1) the child referred to in subparagraph (E) is her

son, daughter, or legally adopted child, and

(ii) the benefits referred to in such subparagraph are

payable on the basis of such individual’s wages and self-

employment income, shall (subject to subsection (s) of

this section) be entitled to a mother’s insurance benefit

for each month, beginning with the first month after

August 1950 in which she becomes so entitled to such

insurance benefits and ending with the month preceding

The application of this section to widows but not to widow-

ers was held unconstitutional in Weinberger v. Wiesenfeld,

420 U.S. 636, 95 S.Ct. 1225, 48 L.Ed.2d 514 (1975). Since

that time, HEW has by regulation authorized “father’s in-

surance benefits” for widowers, see 20 C.F.R. §§ 404.335-.337,

but it still apparently grants benefits to “surviving divorced

mothers” that are not granted to a surviving divorced father,

id.

2 This department has recently been divided, but will be

referred to here by its traditional name.

the actions of a Social Security Ficld Representative

who, on June 12, 1974, supplied the applicant with

misinformation about her eligibility and did not en-

courage her to file a written application. On that

date, after hearing from a fellow employee and a

local attorney that she might be eligible, appellee

went with her mother to the Newport, Vermont,

Social Security Office. There she had a ten- to fifteen-

minute interview with Dan Connelly, the Social Se- -

curity Field Representative. Connelly does not recall

the meeting, but his daily record for June 12, 1974

includes the last names of appellee and her two sons,

followed by the notation, “P/AD,” which Connelly

described as an abbreviation for “post adjudication

action.” This means that, according to his notes, he

was talking to her about a claim that had already

been determined adversely. As described in appellee’s

testimony, however, testimony that was substantially

credited by the administrative law judge, the follow-

ing occurred :

A. And I went in to file a form for Mother’s

Benefits—Divorced Mother’s Benefits.

Q. All right, now, was he alone there?

A. Yes, he was.

Q. And was it in the morning, or afternoon,

or when was it?

A. No—excuse me—but it was in the after-

noon, your Honor.

Q. And how long did you spend there?

A. It couldn’t have been any longer than be-

tween 10 to 15 minutes, if it was that long.

Q. And did you discuss with him anything

else other than filing that application?

A. No. He asked who I was, and I told him,

“Ann Riegel Hansen” and that my boys had a

claim there, two Riegel boys, and I—I told him

that I had heard that I was illegible (sic) for

Divorced Mother’s Benefits, I was not—

Q. That you were eligible or not?

A. That I was.

Q. All right.

A. And I was there to file a form,—

Q. Uh-huh.

A. —and he—well, I (unintelligible)—

Q. What did he tell you?

A. He asked me—he said, ‘“‘Were you ever

married to the guy?” And I—I just looked at

him and—

Q. What’d you tell him?

A. —he repeated the question again, because

I was stunned, and I said, “Well, I can cross the

street and go over to the City Clerk’s office and

get you a marriage certificate.” And he said,

“Oh, no, no,” he says, “that won’t be necessary.”

Q. All right, what else did he say?

A. And then he asked me what my marital

statchus (sic) was at the time,—

Q. Uh-huh.

A. —“Were you divorced?” And I said,

“Yes,” and he said, “Well, that’s it,” his hands

went up in the air, he said, “that’s it then, that’s

why you’re not illegible (sic).”

Q. Well, wait, did he say just, ‘‘That’s it,”

or what else did he say, as near as you recall,

after he said, ‘“‘That’s it,” what—what else did

he say by way of explanation?

A. He said, “That’s it, it’s because you’re

divorced that you’re not illegible (sic).”

Q. Did he say that you were not eligible?

A. He said I was not illegible (sic) to file a

form for Mother’s Benefits.

Q. Now, did he say the words that, “You

aren’t eligible?”’

A. Yes, your Honor.

Q. Or did he just say, “That’s it?”

A. He said, “That’s it,” and he said, “You’re

not illegible (sic) to file a form because you are

divorced at the time.”

Q. And did he give you any other explana-

tion?

A. Nohe didn’t.

When the administrative law judge asked appellee

how she remembered Connelly’s name, she replied,

“Because he had given me a rude time.” She de-

scribed Connelly as being “very short, very in a

hurry,” and said that she was “very put out because

of the questions [as to whether she had been mar-

ried].”’ Appellee’s mother testified that she had gone

to the Social Security Office with her daughter and

that she had stayed in the waiting room throughout

the interview; she remembered that when the daugh-

ter had emerged from the office she was “very mad”

and “quite upset” about Connelly’s inquiry into

whether she and her former husband had ever been

married. Appellee and her mother left the office

without taking further action and appellee made no

further contact with the Social Security Administra-

tion, or with the lawyer who had suggested that she

visit the Social Security Office, until May 1975, when

a booklet sent by the Administration and a telephone

call confirmed the fact that she was eligible. At that

point, she received benefits retroactive one year to

May 1974, as provided by 42 U.S.C. § 402(j),* but

no benefits for any time prior to that date.

842 U.S.C. § 402(j) (1) provides in pertinent part:’

(j) (1) An individual who would have been entitled to

a benefit under subsections (a) to (g) or (h) of this sec-

Relying on the Act and its regulations, the ALJ

denied appellee’s claim for benefits back to June 1973,

finding specifically that Connelly did not refuse in

the June 12, 1974 meeting to allow her to file an

application and did not advise her that she had no

right to do so. But the ALJ also stated:

[T]he interviewer did not ask her if she wanted

to file an application. When she asked him if she

should he responded by advising her she was not

eligible. She testified she was not given a form

by the interviewer, nor did he suggest or en-

courage her to file one and he didn’t explain the

advantages of filing an application.

The ALJ found as a matter of law that she failed

to comply with the statutory and regulatory require-

ments for filing of a written application as pre-

scribed in 42 U.S.C. § 402(g) (1) (D),* and (j)(1),°

and 20 C.F.R. § 404.601.° He also held that the oral

tion for any month after August 1950 had he filed appli-

cation therefor prior to the end of such month shall be

entitled to such benefit for such month if he files applica-

tion therefor prior to the end of the twelfth month im-

mediately succeeeding such month.

4 See note 1 supra.

5 See note 3 supra.

620 C.F.R. § 404.601 provides:

(a) Claimant defined. The term “claimant” for pur-

poses of this subpart refers to the individual who has

filed on his own behalf, or on whose behalf a proper

party under § 404.603 has filed, an application for monthly

benefits, a lump-sum death payment, the establishment

of a period of disability, entitlement to hospital insur-

ance benefits, or special age 72 payments.

(b) Applicant defined. The term “applicant” for pur-

poses of this subpart refers to the individual who has

contact made by the claimant on June 12, 1974 could

not be considered to satisfy the requirements for fil-

ing a written application, either as a matter of law

or on the basis of equitable estoppel. He was upheld

by the Appeals Council.

The district court reversed, concluding that appel-

lee asked to complete an application but was denied

that opportunity. In this case, the court held, the

regulation requiring application in writing was “un-

reasonably restrictive,” especially since the Social Se-

curity Claims Manual explicitly directed SSA em-

filed an application on his own behalf or on behalf of

another for monthly benefits, a lump-sum death payment,

the establishment of a period of disability, special age 72

payments, entitlement to hospital insurance benefits.

the term “application” refers only to an application on a

form prescribed in § 404.602 and includes an application

for monthly benefits, a lump-sum death payment, the

establishment of a period of disability, special age 72

payments, and entitlement to hospital insurance benefits.

(d) Filing of application on prescribed form. Except

as provided in §§ 404.611, 404.613, and 404.614, an indi-

vidual has not “filed an application” for purposes of

sections 202, 216(i), 223, 226, or 228 of the Act until an

application on a form prescribed in § 404.602 has been

filed in accordance with the provisions of this Subpart G.

(e) Execution of application, written statement, re-

quests, or notice; defined. The term “to execute an appli-

cation” (or a written statement, request, or notice (see

§§ 404.610 and 404.613)), means the completion and

signing of the application (or written statement, request,

or notice). Irrespective of who may have completed the

items on the application (or written statement, request,

or notice), the document is considered to have been exe-

cuted by or on behalf of such claimant when it is signed

by the claimant (or an individual authorized to do so on

his behalf under § 404.603).

ployees to inform applicants of the advantage of filing

an application and to suggest filing even in cases of

doubtful eligibility. In so holding the court referred

to Tuck v. Finch, 480 F.2d 1075, 1077 (4th Cir.

1970), Leimbach v. Califano, 450 F.Supp. 245, 246,

(E.D.Mo. 1978), and Holmes v. Weinberger, 423

F.Supp. 149, 152-54 (E.D.N.Y. 1976).

Section 202(g) of the Social Security Act, 42

U.S.C. § 402(g¢), see note 1 swpra, provides the con-

ditions of entitlement for mother’s insurance benefits.

It requires in subsection (1)(D) that the claimant

be someone who “has filed application.” See also

§ 202(a)-(h), 42 U.S.C. § 402(a)-(h) (containing

the same language). The filing of some sort of appli-

cation is accordingly a condition precedent to entitle-

ment to benefits under this section. E.g. Clark v.

Celebrezze, 344 F.2d 479, 481 (1st Cir. 1965).

Until 1955, Social Security regulations allowed for

oral applications. See Holmes v. Weinberger, supra,

423 F.Supp. at 153; Johnson v. Hobby, 131 F.Supp.

497, 499 (D.R.I. 1955). Since 1955, however, the

regulations implementing the “has filed application”

requirement have specifically provided for applica-

tions in written form. 20 C.F.R. § 404.601(c). The

regulation requiring a written application is valid on

its face, particularly in light of the fact that the

statute allows for delays in applying by making bene-

fits retroactive for a year prior to the filing of the

application. 42 U.S.C. § 402(j).7 The purpose of this

regulation is stated in Goff v. Weinberger, No. H 74-

276 (D.Conn., Oct. 17, 1975), aff'd mem., 538 F.2d

309 (2d Cir.), cert. denied, 429 U.S. 896, 97 S.Ct.

258, 50 L.Ed.2d 179 (1976):

7 See note 3 supra.

The Social Security Act, supplemented by its

regulations, was intended to eliminate or at least

reduce to a minimum the possibility of fraud,

confusion and laxity in its administration. The

vastness of the program makes it essential to

adhere to the written application procedure, if

there is to be an orderly and controllable system

of management for approving claims and paying

out insurance benefits.

See also Leimbach v. Califano, 596 F.2d 300, 304 (8th

Cir. 1979), reversing the most recent of the decisions

relied upon by the district court below, Leimbach v.

Califano, 450 F.Supp. 245 (E.D.Mo. 1978). Thus

there is no doubt that the regulation requiring a

written application is valid as “ ‘reasonably related

to the purposes of the enabling legislation.’ ”” Mourn-

ing v. Family Publications Service, 411 U.S. 356, 369,

93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1978) (citing

cases).

Here the court below, like the court in Holmes v.

Weinberger, supra, disregarded the regulation in a

particular case. See also Tuck v. Finch, supra. Courts

are not, however, empowered to disregard valid im-

plementing regulations in particular cases whenever

their application appears to be somewhat unfair or

particularly onerous. This ground of decision is

therefore not available to us. See Leimbach v. Cali-

fano, supra, 596 F.2d at 304.

But this does not end the matter. The Government

may sometimes be estopped from enforcing its rules,

based on the conduct of its agents. Here, the ALJ

specifically concluded that “[t]he evidence indicates

that Mr. Connelly did not refuse to give the claimant

an application form or refuse to allow her to file an

application,” and this finding is supported by sub-

stantial evidence. See Franklin v. Secretary of HEW,

10a

393 F.2d 640, 642 (2d Cir. 1968). But the ALJ’s

narrative also includes the following: “[T]he inter-

viewer did not ask her if she wanted to file an appli-

cation. When she asked him if she should, he re-

sponded by advising her she was not eligible.” This

finding surely is supported by the claimant’s testi-

mony, set out above. This may not amount to a

“refusal” to accept a written application, but it surely

is conduct by the claims official deterring the filing

of a written application. The question thus becomes

whether the Government is estopped in this specific

situation, which falls short of intentional deception

but does constitute affirmative misinformation.

It may well be, as the Government argues and the

Appeals Council found, that this misinformation re-

sulted from appellee’s failure to tell Connelly that her

former husband was dead, since this fact was a pre-

requisite of her eligibility. It could also be that, as

the amendment affording benefits to appellee was

relatively new, Connelly was unfamiliar with it.

Regardless of these possibilities, internal depart-

ment procedures indicate that the Field Agent’s ac-

tions were improper. Presumably to take into account

the possibility of a failure of communication between

the prospective applicant and the representative, the

Claims Manual guiding such matters indicates that

the individual “‘should be fully informed of the ap-

plication requirements and the advantages of filing,”

and that it will be appropriate to suggest to the

individual that he file an application, resolving ‘‘any

doubtful situation in favor of suggesting that the

individual file.” Social Security Claims Manual

{ 2003. More importantly it specifically advises the

claims official in no uncertain terms: “Do not deter

an individual from filing solely on the basis that he

is not eligible . . . . This is true even where he is

lla

clearly ineligible.” These things Connelly did not do.

It is true that the Claims Manual does not have by

its own terms “the force or effect of law.” It is nota

regulation. It was not published as such in the

Federal Register. But these facts are not conclu-

sive in this case.

Until recently, it was a rubric that the Government

cannot be estopped. E.g., Federal Crop Insurance

Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed.

10 (1947). Professor Davis points out, however,

that the law has changed and “‘the doctrine of equita-

ble estoppel does apply to the government” as a result

of the “almost uniform support of decisions of the

1970s.” K. Davis, Administrative Law of the Sev-

enties, § 17.01, at 399 (1976). The question has

usually arisen in context where the claimant was

substantively ineligible for the claimed benefit. Mer-

rill itself involved substantive ineligibility for crop

insurance based on a regulation making such insur-

ance unavailable for reseeded winter wheat. 332 U.S.

at 385, 68 S.Ct. at 3. This court’s decision in Gold-

berg v. Weinberger, 546 F.2d 477 (2d Cir. 1976),

cert. denied, 481 U.S. 987, 97 S.Ct. 2648, 53 L.Ed.2d

255 (1977), involved the unavailability of disability

benefits to a disabled widow who had disqualified her-

self by remarrying before age 60. And in Corniel-

Rodriquez v. INS, 582 F.2d 301 (2d Cir. 1976), a

woman had been denied her immigrant visa because

she married. In such cases, a distinction is often

drawn between a mere failure to provide accurate

information, which will not give rise to estoppel, and

“affirmative misconduct” by a Government official,

which may do so. See id. at 307; K. Davis, supra,

§§ 17.03 and 17.04 (Supp. 1978). This distinction

was given slight support by the Supreme Court in

12a

INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21-22, 38

L.Ed.2d 7 (1973) (per curiam) (“While the issue

of whether ‘affirmative misconduct’ on the part of the

Government might estop it from denying citizenship

was left open in Montana v. Kennedy, 366 U.S. 308,

314, 315 [, 81 S.Ct. 1886, 1340, 1341, 6 L.Ed.2d 313]

(1961), no conduct of the sort there adverted to was

involved he:e.’’).

Here, aS our previous discussion indicates, there

was no finding of “affirmative misconduct,” if that

term is defined to mean intentional violation of a rule

having the force of law. But here we are talking

about a procedural requirement: the necessity of filing

a written as opposed to an oral application. Appellee

was at all times “substantively” eligible in the sense

that she was in the class of people that Congress

intended to benefit. It would fulfill the fundamental

legislative goal to grant appellee the benefits she

seeks. It is no answer to say that a written applica-

tion is a condition precedent to entitlement, as the

Eighth Circuit did in Leimbach v. Califano, supra,

596 F.2d at 302; we assume, as we have said, that

that is the case, but the question we are discussing

is whether the Government should be estopped here

from insisting upon compliance with this essentially

procedural requirement as to the claim for retroactive

benefits. Leimbach itself did not decide the estoppel

issue on that ground: it simply decided that there had

to be “affirmative misconduct” and, in a case with

facts quite close to the present ones, found no such

misconduct. No argument was made along the lines

we here suggest—that there is a distinction between

substantive ineligibility, on the one hand, and the

fulfillment of a precedural requirement by a person

who is substantively eligible on the other. In our

13a

view, at least in the latter case, misinformation pro-

vided by a Government official combined with a show-

ing of misconduct (even if it does not rise to the

level of a violation of a legally binding rule) should

be sufficient to require estoppel. We conclude that,

here, the Field Representative’s statements and con-

duct were sufficient to create an estoppel as to proce-

dural requirements. Misinformation was clearly given

to appellee. As for misconduct, the Claims Manual

has relevance since it does indicate what is proper

conduct of local office personnel. Moreover, the local

officer’s own record of events, as in Tuck v. Finch,

supra, 430 F.2d at 1077, tends to support the propo-

sition that he was acting hastily and contrary to the

Manual. He was proceeding on the assumption, ac-

cording to his own notation, that this was a “post

adjudication matter.” Surely the uninformed would-

be applicant cannot have been talking along the lines

of a “post-adjudication matter’ because she had had

so far as appears no previous contact with the agency.

Appellant argues that the reliance of appellee on

Connelly’s statement that she was ineligible has to

be “justifiable,” citing Brown v. Richardson, 395

F.Supp. 185, 191 (W.D. Pa. 1975). The argument is

that appellee did not justifiably rely because she “had

been told by an attorney that he believed that she was

eligible,” Gov’t Brief at 19, and instead chose to rely

on her understanding of the representations of a

Social Security Field Representative. Appellant also

points out the fact that the claimant did nothing be-

tween June of 1974 and May of 1975 and specifically

did not consult with the same attorney. But the

appellee believed the Field Agent, and her lawyer had

only told her that ‘he thought that probably I was

illegible (sic)” and that “if he was me he would go

up to the office and apply.” This sounds to us like

14a

very informal advice—the kind of small-town coun-

try-lawyer advice that was written about so well in

the Arthur Train stories. It involved no formal

written opinion, probably little or no fee, very little

research and a certain unfamiliarity with the law as

indicated by the “probably” and the conditional sug-

gestion “if he was me.” Having received the word

“straight from the horse’s mouth,” that is, from the

Social Security Field Representative who at the local

level represents the whole force and authority of the

United States Government, the applicant cannot be

faulted for continuing to think that she was ineligible

or for not going back to her attorney. It was only

by chance that she discovered her eligibility when she

received a booklet in the mail and then called the

Social Security “Enterprise” number and received

confirmation.

Accordingly, we hold that appellee did justifiably

rely on the Government’s conduct, which we have held

was unjustifiable. We emphasize that our holding of

estoppel under these circumstances is limited to the

situation where (a) a procedural not a substantive

requirement is involved and (b) an internal proce-

dural manual or guide or some other source of objec-

tive standards of conduct exists and supports an

inference of misconduct by a Government employee.

Affirmed.

FRIENDLY, Circuit Judge, dissenting:

By dispensing with compliance with an admittedly

valid regulation, 20 C.F.R. § 404.601(d), which re-

quires a written application on the appropriate form

for a wide variety of social security benefits, the ma-

jority opens the door of the federal fisc not simply to

l5a

Mrs. Hansen, whom we at least know to have visited

the HEW office and said something, but to thousands

who merely will make a detailed claim that they have

done so and whom there is no effective means of re-

butting. Millions of dollars will have to be expended

simply to ascertain whether conditions of eligibility

claimed in a subsequent written application existed

at the time of the alleged oral one.’ And all this

because a minor HEW official has not followed a

housekeeping rule that he suggest the filing of an

application even though he considers the claim to be

without merit, as may well have been true in this

case on the facts before him.

A controlling decision of the Supreme Court has

established for more than three decades that all

courts must “observe the conditions defined by Con-

gress for charging the public treasury.” Federal

Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68

S.Ct. 1, 3, 92 L.Ed. 10 (1947). The claimants in

Merrill had a far more appealing case than Mrs.

Hansen’s desire to have the benefits that will be paid

her in any event start from a year before her oral

application rather than a year before her written

one as the regulation provides. A committee acting

as agent for the Federal Crop Insurance Corporation

affirmatively advised the Merrills that the whole of

their proposed crop of spring wheat would be insur-

able, whether planted on reseeded winter wheat acre-

age or not. So it could have been under the govern-

1 Judge Newman’s concession, fn. 10, that where expensive

investigation would be required, “the appropriateness of an

estoppel might be tenuous, indeed” points to another defect

of the majority opinions—namely, that they fail to furnish

a workable rule that can be readily understood and

economically employed.

l6a

ing statute, but valid regulations issued by the Cor-

poration provided no protection for spring wheat

planted on reseeded winter wheat acreage. The bulk

of the Merrills’ crop was so planted and perished.

Insurance benefits were held to have been properly

denied. Unlike the Merrills who committed themselves

irretrievably to costly mistaken action on the basis of

clearly erroneous advice, the most that can be said

here is that, through what could have been entirely

proper advice on the facts communicated to the field

agent, Mrs. Hansen left the Social Security Office

without having filed the written application essential

to start the running of a retroactive year’s benefit

period—action she was free to alter the next day.

In the thirty two years since Merrill no Supreme

Court decision has gone counter to what that case

has held. While some courts and commentators have

sought to find a contrary indication in Moser v.

United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95

L.Ed. 729 (1951), this is an instance of the wish

being father to the thought. The four survivors of

the Merrill majority joined in Moser; decision was

placed on the ground that a claim to citizenship

could be relinquished only be intelligent waiver, which

Moser had not done; Merrill was not cited; and the

opinion expressly said, “There is no need to evaluate

these circumstances on the basis of any estoppel of

the Government or the power of the Swiss Legation

to bind the United States by its advice to petitioner.”

Montana v. Kennedy, 366 U.S. 308, 81 S.Ct. 1836,

6 L.Ed.2d 313 (1961), refused, under the most poig-

nant circumstances, to prevent the Government from

asserting that Montana’s birth had occurred outside

rather than within the United States solely because

of the misconduct of a federal official. Montana had

been born in Italy of an Italian father and American

17a

mother, left Italy that same year with his mother for

the United States, and had resided continuously in

the United States for 55 years. The Court inter-

preted then applicable citizenship laws to the effect

that Montana was not an American citizen because

of his foreign birth. Montana argued that the United

States should not be permitted to rely on the fact of

his foreign birth because his mother, when pregnant

with him, had tried to leave Italy for the United

States, but was denied a passport by an American

Consular Officer because of her pregnant condition,

although in fact neither the United States nor Italy

required a passport for United States citizens to re-

turn to America. Conceding the serious error, Jus-

tice Harlan nonetheless held that this action by a

Government official “falls far short of misconduct

such as might prevent the United States from rely-

ing on petitioner’s foreign birth,” and added that “In

' this situation, we need not stop to inquire whether,

as some lower courts have held, there may be cir-

cumstances in which the United States is estopped to

deny citizenship because of the conduct of its offi-

cials.” Jd. at 314-15, 81 S.Ct. at 1841. If the giving

of such misinformation to Mrs. Montana, resulting

in her failing to exercise a right to return to her

native land, with the consequence that her son who

subsequently resided here for 55 years was denied

American citizenship, fell “far short” of what was

needed even to trigger inquiry, what are we to say

of a situation where the head and front of the offend-

ing was an official’s failure to press an application

into Mrs. Hansen’s hand?

The last of the series of Supreme Court decisions

is INS v. Hibi, 414 U.S. 5, 94 $.Ct. 19, 38 L.Ed.2d 7

(1973) (per curiam). This involved a Filipino who

applied for United States citizenship pursuant to the

Nationality Act of 1940, which provided for natural-

18a

ization of non-citizens who, like Hibi, served honor-

ably in the United States Armed Forces during World

War II. Although Hibi applied 17 years after the

expiration of the time limit established by Congress

under the Act, he argued that the Government was

estopped from relying on the limit because of its

“failure to advise him, during the time he was eligi-

ble, of his right to apply for naturalization,” and its

failure to post naturalization ofiicials in the Philip-

pines. Id. at 7-8, 94 S.Ct. at 21-22. The Court de-

clined to apply estoppel:

While the issue of whether “affirmative mis-

conduct” on the part of the Government might

estop it from denying citizenship was left open

in Montana v. Kennedy, 366 U.S. 308, 314, 315

[, 81 S.Ct. 1836, 13840, 13841, 6 L.Ed.2d 313]

(1961), no conduct of the sort there adverted to

was involved here. We do not think that the

failure to fully publicize the rights which Con-

gress accorded under the Act of 1940, or the fail-

ure to have stationed in the Philippine Islands

during all of the time those rights were available

an authorized naturalization representative, can

give rise to an estoppel against the Government.

Id. at 8-9, 94 S.Ct. at 21-22.

The sole Second Circuit authority giving any shade

of comfort to the plaintiff is Corniel-Rodriquez v.

INS, 582 F.2d 301 (2 Cir. 1976). This involved a

2 Judge Newman’s citation of Miller v. United States, 500

F.2d 1007 (2 Cir. 1974), is unavailing. That case recognized

the rule that “the government is not estopped by an wnauthor-

ized act of one of its agents,” id. at 1010 (emphasis in orig-

inal), and ruled against the Government because it considered

the Government agent’s action, although erroneous, to have

been authorized. Further, the case presented a conflict be-

19a

“young and naive” alien who sought admission to

the United States as a “special immigrant’. Special

immigrants are not subject to the general immigra-

tion quotas, and include immigrants from the western

hemisphere holding a previously obtained work per-

mit from the Secretary of Labor. Children of indi-

viduals who, like plaintiff’s father, had already ob-

tained special immigrant visas were not required to

have a work permit. By statute, however, they must

not be married either at time of application for a

visa or admission to the United States. A State De-

partment regulation required immigration officials

to warn individuals in plaintiff’s category that they

would be inadmissible if “not unmarried at the time

of application for admission.” A procedural note

implementing the regulation provided that marriage-

able age applicants were to be given a written warn-

ing form informing them that they would become

ineligible if they married prior to entry. Plaintiff

received a special immigrant visa as an unmarried

child of an individual who had been admitted as a

tween what the court considered to be two equally valid statu-

tory provisions—the question was simply which one to apply.

Here there is no competing statute or regulation permitting

Mrs. Hansen to file orally. Finally, Miller focused on the

“flexible approach” it discerned in 26 U.S.C. § 6532 which,

inter alia, allows the Government and the taxpayer to extend

the limitations period by agreement. See DeGregory v. United

States, 395 F.Supp. 171, 175 (E.D. Mich. 1975). Here, Con-

gress has specifically limited its flexibility for those who fail

to file appropriately to an award of up to one year retroactive

benefits, which Hansen has received, see infra. The other

Second Circuit case cited, Podea v. Acheson, 179 F.2d 306

(1950), made no mention of estoppel and, contrary to the

implication of footnote 3 of the concurring opinion, the

Supreme Court did not approve of Podea in Montana but

rather specifically declined to inquire into its correctness.

20a

special immigrant, but married after receiving his

visa and before entry into the United States. The

State Department thereupon sought her deportation.

Plaintiff and her mother, who had accompanied her

when she received her visa, both testified that they

were given no warning, either oral or written, as to

the consequences of such a marriage. No warning

form appeared in plaintiff’s INS file, nor was one

attached to her visa. The Immigration Judge dis-

believed plaintiff’s testimony, finding it insufficient to

rebut the presumption of administrative regularity.

The Board of Appeals held that regardless of what

happened at the consulate office, the Government could

deport petitioner for failure to comply with the stat-

utory terms of admission.

Assuming that the consular official had not ad-

hered to the mandatory regulations, Chief Judge

Kaufman felt this constituted sufficient “affirmative

misconduct” under the Hibi dictum. He specifically

noted that the regulations requiring warnings “car-

ried[d] the force of law [and] must be respected and

enforced by the Government,” id. at 307, and distin-

guished Hibi as not involving any such violation of a

regulation with the force of law, id. at 307 n. 17. In

this respect, as will be seen, our case is like Hibi and

unlike Corniel. In a footnote, the court further care-

fully restricted its ruling:

We do not, of course, suggest that non-compli-

ance with any regulation, no matter how minor

its impact or importance, will automatically pre-

vent the Government from deporting an illegal

alien. Our holding is limited to the extraordinary

circumstances before us. Jd. at 307 n. 18.

The limited nature of the Corniel exception was

speedily underscored in Goldberg v. Weinberger, 546

21a

F.2d 477 (2 Cir. 1976), cert. denied, 481 U.S. 937,

97 S.Ct. 2648, 53 L.Ed.2d 255 (1977), which reiter-

ated this circuit’s adherence to the Merrill-Montana-

Hibi rule. Plaintiff was receiving widow’s benefits

from the SSA, and was told by the SSA that her mar-

riage prior to the age of 60 would reduce but not

terminate her benefits. In fact, the relevant statute

provided that such remarriage would totally elimi-

nate any widow’s benefits, while marriage after age

60 would only effect a reduction in benefits. Plaintiff

remarried some two months prior to her sixtieth

birthday and all her benefits were cut off. This court

rejected her effort to invoke estoppel against the

Government:

The government could scarcely function if it

were bound by its employees’ unauthorized rep-

resentations. 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 bene-

fits under the relevant statutes and regulations.

Id. at 481.

Judge Hays noted that the Ninth Circuit had

“evinced a willingness to depart from the principle in

certain circumstances,” but declined to embark this

circuit on that course. Corniel was distinguished and

limited:

Our decision in Corniel-Rodriquez v. I.N.S....

is not to the contrary. We held there that estop-

pel may be invoked against the government

where there is “noncompliance with an affirma-

22a

tively required procedure... .” 532 F.2d at

306-07. We took pains, however, to limit our

decision to the specific facts of that case, particu-

larly the fact that the government employee had

failed to provide petitioner with a warning man-

dated by federal regulations. Jd. and n. 18. No

such regulation governs Social Security office

employees. 546 F.2d at 481 n. 5 (emphasis in

original).

Beyond this array of relevant Supreme Court and

Second Circuit cases, two very recent decisions of the

Eighth and Seventh Circuits are almost precisely in

point. Leimbach v. Califano, 596 F.2d 300 (8 Cir.

1979), reversed a district court decision relied on by

Judge Coffrin below. When Leimbach inquired at a

SSA office concerning his children’s eligibility for

benefits due to his wife’s decease, he was erroneously

informed that the children were not eligible. Addi-

tional oral inquiries over the next five years received

the same erroneous response. Leimbach discoverd

some seven years after his first inquiry that the chil-

dren were in fact eligible. He applied in writing on

the appropriate form for his children who then re-

ceived benefits retroactive for one year. The Eighth

Circuit reversed a district court decision granting the

Leimbach children benefits as if they had applied

during Leimbach’s first visit to the SSA office. Citing

the Merrill rule, the court said that “courts have uni-

formly held that estoppel will not lie against the

Agency where an applicant has simply received mis-

information on which he relied to his detriment.” Jd.

at 304. Noting that the Hibi Court had left open the

question whether affirmative misconduct by a govern-

ment official might give rise to an estoppel against

the government, and accepting Leimbach’s testimony

23a

that the agency representative had discouraged his

filing an application, the court nonetheless stated that

it found “nothing that would amount to affirmative

misconduct” and “that at worst Mr. Leimbach was

simply misinformed by Social Security employees

concerning his children’s eligibility. Such action on

the part of Agency employees, although regrettable,

will not give rise to an estoppel against the govern-

ment.” Id. at 305. Despite his general dislike of the

principle of no estoppel against the Government, see

Administrative Law of the Seventies, § 17.01 at 400

(1976), Professor Kenneth Culp Davis has written

very recently of Leimbach, “A private party loses by

lack of timely filing even though government employ-

ees misled him into believing that the filing was not

required. The authorities the court cites support the

decision, which is important because the pattern so

often recurs.” 1980 Supplement to Administrative

Law Treatise, 109 (1980).

Moreover, since the instant case was argued, the

Seventh Circuit has followed Leimbach in Cheers v.

Secretary of H.E.W., 610 F.2d 463 (7th Cir. 1979).

Claimant sustained a severe injury which caused him

to become a paraplegic. Since February 1968 he was

eligible for disabled children’s benefits, but he did not

file a written application until April 1976, at which

point he was given benefits retroactive for one year.

Claimant testified that he and others acting on his

behalf had repeatedly inquired orally as to his eligi-

bility for benefits between 1968 and 1975, but that he

was consistently and incorrectly told that he was in-

eligible.* The Government, claimant argued, should

8 While the Seventh Circuit noted that there was little

factual support for the contention that claimant even com-

municated with Social Security employees or relied upon mis-

24a

therefore be estopped to deny benefits because of his

failure to file a written application. Acknowledging

sympathy with the claimant’s plight, the court, speak-

ing through Judge Pell, nonetheless declined to over-

ride “the well established principle that estoppel shall

not operate against the Government in these circum-

stances.” at 469. See also Gressley v. Califano, 609

F.2d 1265, 7th Cir. (1979).

It should be noted that the Social Security officers

involved in Leimbach and Cheers were subject to the

same provisions in the Claims Manual on which Judge

Oakes so heavily relies. Furthermore, in both cases

this provision was violated not once, as here, but sev-

eral times over many years. Finally, whatever one is

to make of the majority’s substance/procedure dis-

tinction, see infra, the sole basis for denying benefits

in Leimbach and Cheers was the same failure to file

a written application present in this case.

Even the Ninth Circuit, whose occasional depar-

tures from Merrill this court has expressly declined to

follow, Goldberg v. Weinberger, supra, 546 F.2d at

481, see also N.Y. Athletic Supply Co., Inc. v. United

States, 450 F.Supp. 469, 471 (S.D.N.Y. 1978)

information furnished by them, in its estoppel discussion the

court assumed arguendo that claimant’s testimony was ac-

curate, at 468-69; see also id. at 468 n.6. The inability to

either credit or rebut a claimant’s testimony with any degree

of certainty is a common phenomenon in oral application

cases, including the present one. See, e.g., Leimbach v. Cali-

fano, supra, 596 F.2d at 302, n.2. Knowing that the claimant

actually visited the SSA office, as we do here, is of little help

in reconstructing the content of the interview. As the Cheers

court noted, it is precisely such difficulties which “underi[y]

and justify the need for regulations that require written

applications,” at 467—and should discourage the use of

estoppel to evade them.

25a

(Frankel, J), has recognized limits on the application

of estoppel against the Government in cases like this

which the majority ignores. In Santiago v. INS, 526

F.2d 488 (9 Cir. 1975) (en banc), cert. denied, 425

U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), the

court declined to apply estoppel against the Govern-

ment because “the central complaint of each peti-

tioner is .. . the failure to inform or inquire,” id. at

493, and such failure to inform did not constitute

“affirmative misconduct” as required by the Hibi dic-

tum. See also Oki v. INS, 598 F.2d 1160 (9 Cir.

1979) (per curiam). Here Mrs. Hansen’s complaint

also focuses on Connelly’s failure to inquire more

deeply into her eligibility and to inform her that she

should file a written application. United States v.

Ruby, 588 F.2d 697 (9 Cir. 1978), cert. denied, 442

U.S. 917, 99 S.Ct. 2888, 61 L.Ed.2d 284 (1979), indi-

cates that the Ninth Circuit’s “affirmative miscon-

duct” limit is two-pronged. The court there declined

to estop the Government because the conduct com-

plained of, although affirmative, could not properly be

characterized as misconduct. As will be discussed be-

low, it is similarly not clear here that what Agent

Connelly affirmatively did, namely to tell Mrs. Hansen

that she was ineligible, was “misconduct” of any sort.

Even more closely on point is Simon v Califano, 593

F.2d 121 (9 Cir. 1979). An HEW trainee was filling

out a benefits application for a claimant. Without

asking the claimant if she had any children, the

trainee wrote “None” in the answer to the question

“How many children do you have who may be eli-

gible for benefits?” The claimant signed the applica-

tion without reading it. In fact she had two children

who were eligible for benefits. When she discovered

their eligibility two years later, she sought benefits

calculated from the date of her previous application,

26a

arguing that the Government should be estopped from

denying that the children had also applied at that

time. The court declined to estop the Government,

for two reasons, both applicable to the case before us.

First, ‘the trainee was guilty of negligence, but that

negligence does not amount to affirmative miscon-

duct.” Jd. at 128. Second, Mrs. Simon’s children were

awarded benefits retroactive for one year from their

filing, as Mrs. Hansen’s have, and the court did not

believe that the loss of retroactive benefits for an-

other year “is of such magnitude and is so serious

that HEW should be estopped from enforcing the

express terms of the Act.” Jd.

These decisions have been set forth at some length

so that it may be appreciated how far today’s deci-

sion departs from a solid and well-articulated body

of doctrine that funds contributed by all citizens,

with definite limitations upon their use, are not to be

diverted to a person not within these limitations sim-

ply because the Federal Government has not been

able to secure perfect performance from its hundreds

of thousands of employees scattered throughout the

continent. To be sure, the Supreme Court has left

open whether a case might arise in which misconduct

by a Government official was so egregious as to jus-

tify a departure from Merrill and we found such a

case in Corniel-Rodriquez. But the applicability of

the Merrill principle to run of the mill cases like this

has become so well established that stare decisis re-

quires a court to adhere to it, however strongly a

judge may dislike the result.‘ In fact, it would be

4 Tuck v. Finch, 430 F.2d 1075 (4 Cir. 1970), is not a true

departure from this line of authority, even if it were correctly

decided. Tuck orally inquired about his eligibility for dis-

ability benefits and was informed, correctly, that he was

27a

hard to find a spongier factual launching pad for the

majority’s takeoff than this.

To begin, we know little of what really happened.

Mrs. Hansen’s interview with Connelly took place in

the spring of 1974. When she testified three years

later, she had no accurate memory of the date until

Connelly’s records revealed it. On her own account of

the episode she had revealed to Connelly no details of

her marital history save for a claim of divorce from

ineligible as he had not worked the requisite amount of time

prior to disability. Tuck, however, could adjust his self-

employment income in tax returns in order to qualify himself,

if he did this within three years, three months and fifteen

days from the relevant year of self-employment; if Tuck

applied during this period, but adjusted his income later, the

SSA could change their records accordingly. Tuck’s visit

to the SSA office was within the period but he did not apply

in writing until after it had expired. The court held that the

unwritten informal application satisfied the statute and

allowed Tuck to qualify himself for disability benefits. One

ground for decision was that Tuck was illiterate. The court

pointed out that “[w]hile a written application might be

expected from a literate person, an illiterate often can do

little othex than make an oral request to the official to whom

he has been referred.” Jd. at 1077. Beyond this the Tuck

court seemed confused about the Secretary’s regulations. It

stated for some unarticulated reason that ‘“‘[u]se of a form

... does not appear to be mandatory,” and did not cite to 20

C.F.R. § 404.601(d) which clearly made it so. Because of this

the case is neither one of “estoppel” or even of misconduct,

and the court never used these words or cited any of the rele-

vant cases applying them. The conclusion that Tuck is not an

estoppel case is fortified by Montgomery County v. Ball, 416

F.Supp. 737, 742-44 (D.Md. 1975), vacated on other grounds,

561 F.2d 1120 (4 Cir. 1977), cert. denied, 485 U.S. 994, 98

S.Ct. 1644, 56 L.Ed.2d 83 (1978). Although bound by Tuck,

the district court, citing Merrill, flatly stated that “[a] gov-

ernment agency cannot be held responsible for the erroneous

statements and representations made by its agents.”

28a

someone and a reference to “two Riegel boys”.® Con-

nelly, of course, could remember nothing with respect

to this particular interview out of thousands he had

conducted; this is one of the strong reasons for re-

quiring applications to be in writing. I do not read

the ALJ’s decision as accepting the claimant’s credi-

bility beyond the facts, found by him, that she went

to the office with the purpose of filing a written ap-

plication under the then recently enacted amendment

relating to divorced mother’s insurance benefits, that

she was told she was ineligible, and that she left

without having filed a written application. The color-

ful details are the claimant’s, after three years of

brooding, and hers alone.*®

It is undisputed that, under 42 U.S.C. § 402(g)-

(1), Mrs. Hansen was not entitled to benefits on ac-

count of the “two Riegal boys” unless Riegel was dead.

She does not claim to have told Connelly anything to

that effect, it is not even wholly clear that she then

knew it, and Connelly had no reason to conjecture

5 The claim as ultimately filed in 1975 showed she had

married Wallace Riegel, Jr. on August 14, 1954 and divorced

him on May 18, 1960, and that she had married James Hansen

on November 25, 1961 and divorced him on April 16, 1964.

The birth certificates of the Riegel boys show they were

born on July 4, 1956 and April 29, 1958. The blanks on the

application relating to the date, place and nature of Riegel’s

death were marked “N.A.” and the question “[i]s there a

surviving parent (or parents) ?” was answered with a check

in the “No” box. In fact Riegel had died on February 8, 1967

and was buried by his mother.

® Mrs. Hansen’s mother’s brief testimony supported only

the assertions that Mrs. Hansen went in to apply for benefits

and emerged upset because of Connelly’s question concerning

her marital status.

29a

that a man who then would have been only 43 was

dead. Connelly’s advice as to Mrs. Hansen’s ineligi-

bility was thus not wrong on the basis of what he

was proved to have known. This would not suffice to

create an estoppel even against a private company.

See, e.g., Gladden v. Pargas, Inc., 575 F.2d 1091,

1094 (4 Cir. 1978) (“Estopped parties’ knowledge,

either actual or implied, that the representations

were untrue when made” is an essential element of

estoppel); Kenneally v. First National Bank of

Anoka, 400 F.2d 838, 843 (8 Cir. 1968), cert. denied,

393 U.S. 1068, 89 S.Ct. 716, 21 L.Ed.2d 706 (1969)

(same) ; Special Event Entertainment v. Rockefeller

Center, Inc., 458 F.Supp. 72, 76 (S.D.N.Y. 1978)

(same). The majority’s frequent talk of Connelly’s

furnishing “misinformation” is thus wholly mis-

placed. Nothing in the ALJ’s findings suggests mis-

conduct on the part of Connelly and the Reconsidera-

tion Branch stated that “it is highly improbable that

[Connelly] would have informed Mrs. Hanson [sic]

that she was not eligible for benefits on the account

of Wallace Riegel if she did in fact meet all the re-

quirements for entitlement to benefits.”

Judge Oakes, but not Judge Newman, seeks to find

misconduct of the sort he considers sufficient for an

application of estoppel against the Government by

reference to the provisions of the Claims Manual ad-

vising agents to recommend the filing of written ap-

plications. This ignores that the Claims Manual was

not a regulation having the force of law such as the

regulations in Corniel, supra, 5382 F.2d at 307, but

was simply an internal agency handbook, never made

the subject of proceedings under 5 U.S.C. § 553 as a

regulation would have had to be, and expressly stat-

80a

ing that it had no legal effect.’ Clearly it is in the

public interest for an agency with over 80,000 em-

ployees, making more than 1,250,000 disability deter-

minations alone a year, with 215,300 reconsidera-

tions, see 1 Davis, Administrative Law Treatise § 1.3

(2d ed. 1978), to issue housekeeping instructions to

its employees in the interest of uniform, fair and

efficient administration. But it is perplexing why an

agency that issues such instructions should be held to

a higher legal standard of dealing with its clients

than one that does not. This is all the more so in view

of the fact that within the last year the Supreme

Court has so strongly emphasized this very point.

United States v. Caceres, 440 U.S. 741, 755-56, 99

S.Ct. 1465, 1473-74, 59 L.Ed.2d 733 (1979).* Dealing

7 “The CM is a compilation of instructions for the use

of SSA personnel in claims cases. However, it does not

have the force or effect of law, and understanding its

instructions presupposes a familiarity with the Act and

the regulations.”

8 Caceres was not new doctrine. See Sullivan v. United

States, 348 U.S. 170, 172-74, 75 S.Ct. 182, 184, 99 L.Ed. 210

(1954) (Executive Order and Circular Letters from Depart-

ment of Justice requiring approval of Department before

presentation of evidence to grand jury “simply a housekeeping

provision of the Department” whose violation had no legal

effect) ; American Farm Lines v. Black Ball Freight Services,

397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970) (1I.C.C.

rule specifying contents of application for temporary operat-

ing authority under § 210a of the Interstate Commerce Act

does not preclude grant of authority to non-complying appli-

cant) ; United States v. Lockyer, 448 F.2d 417, 420-21 (10 Cir.

1971) (defendant taxpayer cannot take advantage of pro-

vision in Internal Revenue Audi! Technique Handbook and

Internal Revenue Manual instructing when revenue agent

must suspend investigation on finding an indication of fraud).

3la

with a failure of the IRS, before undertaking con-

sensual electronic surveillance, to implement safe-

guards provided in an Internal Revenue Service Man-

ual, beyond those constitutionally or statutorily de-

manded, the Court said:

we cannot ignore the possibility that a rigid ap-

plication of an exclusionary rule to every regu-

latory violation could have a serious deterrent

impact on the formulation of additional stand-

ards to govern prosecutorial and police proce-

dures. . . [S]Jince the content, and indeed the

existence, of the regulations would remain with-

in the Executive’s sole authority, the result

might well be fewer and less protective regula-

tions. In the long run, it is far better to have

rules like those contained in the IRS Manual,

and to tolerate occasional erroneous administra-

tion . . . than either to have no rules except those

mandated by statute, or to have them framed in

a mere precatory form.’

® While the factual circumstances of Caceres differ from

those of the present case, these differences are not significant

so far as the relevance of the quoted language is concerned.

Caceres involved a criminal prosecution, but Justice Stevens

noted that even in agency adjudications “it seems clear that

agencies are not required, at the risk of invalidation of their

action, to follow all of their rules, even those properly classi-

fied as ‘internal’.” 440 U.S. at 754 n.18, 99 S.Ct. at 1473 n.18.

The Caceres opinion also noted that the taxpayer had not

relied on the IRS Manual provision and that its violation had

not affected his conduct. Jd. at 753, 99 S.Ct. at 1472. This dis-

cussion was in the course of determining whether the Due

Process clause was violated, however, and no one suggests

that Hansen has a constitutional claim. Furthermore, the

SSA went to considerable lengths to ensure that the Claims

Manual not be considered to create any rights that did not

32a

Similar considerations apply to imposition of civil

liability. Here it is far better to have thousands of

field agents behaving as the Field Manual instructed

them than to put the Government at risk that every

alleged failure by an agent to follow instructions to

the last detail in one of a thousand cases will deprive

it of the benefit of the written application require-

ment which experience has taught to be essential to

the honest and effective administration of the Social

Security Laws.”

otherwise exist. Not only did the Manual explicitly state that

it did not have the force or effect of law, note 7, supra, but it

also provided that it was never to be cited in any correspond-

ence with the public. Indeed, although open to the public

under the Administrative Procedure Act, 5 U.S.C. § 552(a)

(2) (C), the Manual provided that it was not to be offered

to the public “‘unless the inquirer specifically wishes to see the

CM.”

10 Tt is worth noting how small Connelly’s violation of the

relevant passage of the Claims Manual actually was. This

reads:

2008. Administrative Policy of Acceptance of Appli-

cation.

a) General

Where an individual is inquiring about possible cur-

rent entitlement to [Retirement, Survivors (including

Mothers’) Disability, Health Insurance] benefits, his

interests will ordinarily be best served by filing an appli-

cation immediately so that retroactive title II benefits will

be better protected and a determination made on his

entitlement. He will also have the right of appeal in the

event he is not satisfied with the determination. The indi-

vidual must make the actual! decision of whether or not to

file, but he should be fully informed of the application

requirements and the advantages of filing. Unless filing

is obviously disadvantageous or the question is one of

filing for reduced title II benefits only, it will be appro-

priate to suggest to the individual that he files an applica-

33a

We are told there is a significant distinction be-

tween substance and procedure, which apparently

has been lost on other courts, since in the latter case

Congress really wants the claimant to have the bene-

fit, so that estoppel will advance the substantive pur-

pose whereas refusal to estop will frustrate it. We

are thus to ignore the directive of Merrill that courts

must “observe the conditions cefined by Congress for

charging the public treasury,” 332 U.S. at 385, 68

S.Ct. at 3, because “{t]he only people who will gain

from this decision are those who are substantively

qualified: those whom Congress intended to receive

the benefit.” The hollowness of the substance/proce-

tion. Resolve any doubtful situation in favor of suggest-

ing that the individual file since he may withdraw his

application later if he wishes.

A delay in filing should never be suggested because

there is no doubt as to the inquirer’s eligibility or because

extensive development may be necessary. An application

should be obtained and development made for a deter-

mination. Do not deter an individual from filing solely

on the basis that he is not eligible . . . This is true even

where he is clearly ineligible. Every inquirer should re-

ceive an explanation of the application requirements and

an application should be taken if he indicates that he

wishes to file. If an individual makes no mention that he

wishes to file but is not satified with the information

about his eligibility, it should be suggested that he file an

application so that a determination may be made.

The first two sentences are a description of the applicant’s

best interest, not an order to the agent. There was no need

to inform Mrs. Hansen of the application requirement since

she knew all about it. Connelly’s breach lay in not advising

her or fully informing her of the advantages of filing and

suggesting that she file. He did not “deter an individual from

filing solely on the basis that he is not eligible.” He simply

advised perhaps correctly on the few facts confided to him,

that she was not eligible and did not press her to file.

34a

dure distinction was exposed long ago in Guaranty

Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464,

1469, 89 L.Ed. 2079 (1945). Congress did not wish

all those eligible for divorced mother’s security bene-

fits to receive them as from the date of their eligibil-

ity. It wished such benefits to flow only to those

applying for them as prescribed by HEW for a pe-

riod beginning not earlier than a year before the

application. This is substance in the sense that it sig-

nificantly affects the result, not “merely the manner

or means by which a right to recover. . . is enforced.”

Guaranty Trust Co. v. York, supra, 326 U.S. at 109, 65

S.Ct. at 1470. The fact that in no event may payment

for preapplication benefits exceed one year does not

bespeak an overmastering Congressional desire that

no eligible applicant shall go unpaid. Thus, the linch-

pin of Judge Newman’s opinion—that Congress in-

tended all those who were eligible to receive benefits

—completely fails. There is simply no legitimate

basis for a court, pursuing its own ideas of what

would be desirable, to isolate one aspect of a govern-

mental program as the “pertinent policy” while rele-

gating other aspects, whether provided by Congress

itself or the agency to which Congress has entrusted

administration of the program, to some inferior

status.

To sum up, no one supports affirmance of the dis-

trict court’s order on the grounds on which it was

rested, namely, that the regulation requiring a writ-

ten application was invalid or that Connelly refused

to allow Mrs. Hansen to file one. Affirmance likewise

cannot rest on the new ground of misconduct now

brought forward. What Connelly affirmatively told

Hansen, namely, that she was not eligible, has never

been determined to be misconduct, based on the in-

35a

formation provided him; surely it was nothing like

the clear affirmative misconduct in Merrill. Neither

is what Connelly did not tell Hansen, that she should

apply in writing though he considered her ineligible,

misconduct in any legally relevant sense, as pointed

out last term in Caceres. Finally the majority is also

dispensing with the “affirmative misconduct” pre-

requisite based on the Hibi dictum and our Corniel

decision, since in no realistic sense can Connelly’s

failure to encourage Hansen to apply in writing be

deemed affirmative conduct. The majority is simply

disregarding the Supreme Court’s decisions in Mer-

rill, Montana and Hibi, and placing ourselves in

square conflict with the decisions of most, indeed

probably all other courts of appeals in similar cases

—and all this on an exceedingly weak set of facts and

a newly found jurisprudential distinction which can-

not survive analysis. There are some rules of federal

law that had best left unchanged until Congress de-

cides to alter them even when the result is much

harsher than here. This is one of them.

The judgment should be reversed with instructions

to dismiss the complaint.

NEWMAN, Circuit Judge, concurring:

I concur fully in Judge Oakes’ opinion for this

Court. I write only to emphasize the importance of

that opinion’s substantive-procedural distinction as

both the explanatory and the limiting principle for

our decision upholding estoppel against the Govern-

ment. Judge Friendly’s vigorous dissenting opinion

concludes that the case law has generally opposed

estoppel of the Government, and that the substance-

procedure distinction cannot be maintained in this

36a

context. My review of the authorities persuades me

that estoppel of the Government enjoys considerable

support and that the substance-procedure distinction

makes the doctrine especially appropriate in the cir-

cumstances of this case.

In Federal Crop Insurance Corp. v. Merrill, 382

U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), the Su-

preme Court declared that, as a general rule, the

Government would not be bound by the incorrect and

misleading statements of its agents. See Utah Power

& Light Co. v. United States, 248 U.S. 389, 37 S.Ct.

387, 61 L.Ed. 791 (1917). The principal thrust of

this decision was that the rules governing the estop-

pel of private parties were not applicable to the Gov-

ernment, 332 U.S. at 383-84, 68 S.Ct. at 2-8, see Utah

Power & Light Co., supra, 248 U.S. at 409, 37 S.Ct.

at 391, not that an estoppel against the Government

was impermissible under any circumstances. The lat-

ter point was made explicit in Montana v. Kennedy,

366 U.S. 308, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961),

where the Court said: “we need not stop to inquire

whether, as some lower courts have held, there may

be circumstances in which the United States is

estopped to deny citizenship because of the conduct

of its officials.” Jd. at 315, 81 S.Ct. at 13841 (foot-

note omitted). Moreover, in INS v. Hibi, 414 U.S. 5,

8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973), the Court

cited Montana as recognizing one possible circum-

stance, affirmative misconduct, that might justify

estoppel, although it continued to reserve decision on

the resolution of this issue.

Thus, the principle of these decisions is that courts

must not apply the private law notion of estoppel to

the Government and that the more restrictive circum-

stances under which estoppel of the Government might

arise remain to be articulated. The response of the

37a

lower courts, while uncertain at times, has been

generally consistent with this view. While emphatic

rejections of estoppel against the Government occa-

sionally appear in passing phrases, see Dix v. Rollins,

413 F.2d 711, 716 (8th Cir. 1969); Udall v. Oel-

schlaeger, 389 F.2d 974, 977 (D.C. Cir.), cert. de-

nied, 392 U.S. 909, 88 S.Ct. 2056, 20 L.Ed.2d 1367

(1968), no court of appeals has ruled that estoppel

would be unavailable in all circumstances. On the

contrary, no fewer than eight circuits, including this

one, have stated that there are some circumstances

in which the Government will be estopped.’ Corniel-

Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976);

Walsonavich v. United States, 335 F.2d 96 (3d Cir.

1964); Tuck v. Finch, 4380 F.2d 1075 (4th Cir.

1970) ; Simmons v. United States, 308 F.2d 938, 945

(5th Cir. 1962); United States v. Fox Lake State

Bank, 366 F.2d 962 (7th Cir. 1966); United States

1 Judge Friendly’s dissent, in discussing some of the leading

cases that have imposed estoppel on the Government, sug-

gests that the authority of these cases is limited by the un-

usual nature of their factual situations, supra, at 950-951

(discussing Corniel-Rodriguez), supra, at 954 n.4 (discussing

Tuck). This proves that the cases do not support estoppel

of the Government in all possible circumstances, a fact that

no one contests. But it also proves that there are some cir-

cumstances, varying from circuit to circuit at the present

time, in which the Government will be estopped. The issue

in this case is to determine what those circumstances should

be.

2 See K. Davis, Administrative Law Text, § 17.01 at 343

(8d ed. 1972) (sounder position is “that the doctrine of

equitable estoppel may apply to the government when justice

so requires”); F. Newman, Should Official Advice Be Reli-

able ?—Proposals as to Estoppel and Related Doctrine in Ad-

ministrative Law, 58 Colum. L. Rev. 374 (1953).

38a

v. Wharton, 514 F.2d 406 (9th Cir. 1975) ; Massaglia

v. Commissioner, 286 F.2d 258, 262 (10th Cir. 1961)

(dictum); Semaan v. Mumford, 335 F.2d 704, 706

(D.C. Cir. 1964). The principle is particularly well-

established in this Circuit. See Corniel-Rodriguez,

supra; Miller v. United States, 500 F.2d 1007 (2d

Cir. 1974); Podea v. Acheson, 179 F.2d 806 (2d Cir.

1950) (conclusion that plaintiff’s waiver of citizen-

ship was not binding for reason of duress supported

by erroneous nature of Government advice to plain-

tiff) ;* Tonkonogy v. United States, 417 F.Supp. 78

(S.C.N.Y. 1976). These decisions have not purported

to evolve a standard for determining when the Gov-

ernment is estopped. That task requires further

analysis of the cases, those that have upheld an es-

toppel and those that have not.

In Merrill the Supreme Court refused to apply

the private law notion of estoppel to the Government

because the Government’s policies, unlike those of

a private party, have general social significance.

These policies, the Court reasoned, should not be at

the merey of an errant government official. When

a private organization is involved, the only consid-

eration in deciding an estoppel question is the relative

equities between that organization and the party

whom it has misled. But society has an overarching

interest in the substantive policies established by

its government. That interest justifies (though rea-

sonable minds might differ as to whether it compels)

adherence to those policies, even when the reason

’Though Podea did not explicitly mention estoppel, as

Judge Friendly’s dissent points out, the Supreme Court has

viewed the case as an instance in which “the United States is

estopped.” Montana v. Kennedy, supra, 366 U.S. at 315 &

n.11, 81 S.Ct. at 1341.

39a

a person finds himself outside the scope of the per-

tinent policy stems in part from conduct of a gov-

ernment official. Even then, estoppel might be avail-

able, as the Supreme Court indicated in Montana

and we held in Corniel-Rodriguez, if the govern-

mental conduct on which the claimant relied was

affirmative misconduct. See United States v. Lazy

FC Ranch, 481 F.2d 985 (9th Cir. 1973) ; cf. Semaan

v. Mumford, supra (Government estopped from de-

nying employee permanent status after having mis-

led him to believe that such status had been granted).

The maintenance of governmental policies need not

be so absolute as to perpetuate the myth that the

king can do no wrong.

However, when a claimant is within the substan-

tive scope of the pertinent legislative policy, but in-

eligible because of a procedural default attributable

in part to conduct of a government official, the ra-

tionale for rejecting estoppel or limiting it to cases

of affirmative misconduct disappears. In that situa-

tion, public policy favors the granting of the benefit,

not its denial. Persons within the class for whom

benefits are intended are, of course, normally obliged

to follow procedural requirements to establish their

entitlement. Procedural requirements, like the writ-

ten application rule at issue in this case, serve im-

portant interests. But when the failure to observe

the procedural requirement is caused by conduct of

a zovernment official, an estoppel to prevent the

Government from asserting procedural noncompliance

means that the substantive legislative policy will be

carried out. On the other hand, permitting the Gov-

ernment to precipitate the procedural default and

then to assert it as a defense means that the sub-

stantive legislative policy will be frustrated.

40a

The decided cases have implicitly observed this

distinction. Courts have refused to estop the Gov-

ernment, frequently in circumstances more compelling

than those of Mrs. Hansen, when the relief would

have conflicted with substantive policies established

by Congress. In Merrill, two farmers, misinformed

by an official that spring wheat planted on reseeded

winter wheat acreage was insurable, planted their

spring wheat on the winter acreage and were denied

crop insurance. In Montana, supra, an alien, born

abroad when his pregnant mother was incorrectly

denied return to the United States, was denied cit-

izenship. In Goldberg v. Weinberger, 546 F.2d 477

(2d Cir. 1976), cert. denied, 431 U.S. 987, 97 S.Ct.

2648, 538 L.E.2d 255 (1977), a woman, incorrectly

told by a Social Security official that she could re-

marry before her sixtieth birthday without losing

widow’s benefits, did remarry before age 60 and was

denied widow’s benefits. In each of these cases the

consequences confronting the plaintiffs were to some

extent attributable to conduct of a government offi-

cial. But none of the plaintiffs was substantively

entitled to the claimed benefit. The Merrills planted

uninsurable wheat, Montana was born abroad, and

Mrs. Goldberg remarried before age 60. Moreover, in

each instance the basis of ineligibility was related

to a substantive public policy. In Merrill the policy

concerned the reseeding of winter wheat acreage.

In Montana the policy concerned foreign citizenship

resulting from birth abroad. In Goldberg the policy

concerned the economic needs of widows who re-

marry before age 60.

In contrast, when conduct of a government official

has precipitated a procedural default, courts have

refused to permit the Government to assert that de-

4la

fault as a defense.* In Miller v. United States, supra,

this Court held that the merits of a taxpayer’s re-

fund suit must be considered despite its late filing

when the lateness was attributable to erroneous in-

formation from a government official. Congress had

authorized Miller to contest the merits of his tax

dispute, and estopping the Government from relying

on procedural default for which it shared some re-

sponsibility carried out the Congressional purpose.

See Tuck v. Finch, supra (Government estopped from

denying Social Security benefits for failure to file

tax returns showing self-employment income) ; Brandt

v. Hickel, 427 F.2d 53 (9th Cir. 1970) (Govern-

ment estopped from rejecting application for lack

*Of course, even procedural defaults cannot be excused

unless the conduct of a government official bears at least some

causal relationship to the procedural non-compliance. JNS Vv.

Hibi, supra, can be considered to be a case involving a pro-

cedural default, the filing 17 years late of a claim for naturali-

zation. But Hibi’s claim was that the Government should

have undertaken positive steps to inform him of his rights,

such as publicizing his rights in the Philippines or stationing

an INS official there. In rejecting this claim, the decision did

not reject the principle that the Government may be estopped

from asserting procedural default; it simply noted the total

absence of any conduct on the part of the Government that

would have justified an estoppel even against a private party.

The Government risks estoppel by deterring procedural com-

pliance, not by failing to guaranty compliance.

Determining what conduct will suffice to support an estoppel

will understandably precipitate various conclusions, as evi-

denced by the difference between the results in this case and

that in Cheers v. Secretary of HEW, 610 F.2d 463 (7th Cir.

1979), and Leimbach v. Califano, 596 F.2d 300 (8th Cir.

1979). Differing assessments of the significance of particular

governmental conduct should not, however, obscure the princi-

ple that estoppel is available against the Government in cases

involving procedural default.

42a

of temporal priority) ; Walsonavich v. United States,

supra (Government estopped from denying tax re-

fund for failure to file timely refund claim) ; Smale

cd Robinson, Inc. v. United States, 123 F.Supp. 457

(S.D. Cal. 1954) (same); cf. United States v. Fox

Lake State Bank, supra (Government estopped from

penalizing bank from submitting inadequate claim

forms).

The Congressional policy pertinent to this case is

that a divorced mother of minor children, whose

former husband dies after reaching insurable status

under the Social Security system, should receive ben-

efits. Mrs. Hansen is indisputably within the class

for whom the benefits were intended. Whether or

not the conduct of the Social Security official was

in breach of an internal office manual,’ it was

conduct that precipitated her procedural default.

There is room for reasonable dispute as to what

5’ The fact that Congress prescribed an application pro-

cedure surely does not detract from the substance of the policy

to extend benefits to all who meet the demographic criteria.

Congress did not make these benefits available in the secret

hope that few of those eligible would apply, much less that

some, like Mrs. Hansen, would attempt to apply only to be

deflected from that objective by the conduct of a Social Se-

curity employee. In a very real sense Congress wants those

who meet the substantive criteria to receive their benefits.

Why else would it provide funds for an elaborate network of

local Social Security offices and spend additional funds to

inform the public of Social Security benefits?

6 T agree with Judge Friendly that Connelly’s noncompliance

with the internal office manual is not a dispositive factor in

favor of Mrs. Hansen’s claim. Nevertheless, his conduct, how-

ever characterized, is sufficient to estop the Government from

denying Mrs. Hansen her benefit on the basis of her resulting

procedural default.

43a

actually happened when Mrs. Hansen visited the So-

cial Security office. But regardless of how this panel

might have found the facts, the ALJ, who heard

the witnesses, found that when Mrs. Hansen asked

if she should file a written application, the Social

Security employee “responded” by advising her she

was not eligible. Even if he honestly but mistakenly

believed she was ineligible, his response was the cause

of her not filing.” The ALJ, after hearing all the

evidence, found facts that would justify an estoppel.

He declined to apply one only because he did not

believe that the applicable legal principles made an

estoppel available.

Judge Friendly argues in dissent that there is no

real distinction between substantive and procedural

ineligibility because Congress did not want to grant

the benefit to a person who fails to file in the manner

prescribed by the agency any more than it wanted

to grant the benefit to a person who fails to qualify.

But there is surely a real difference between these

two Congressional commands. The substantive qual-

ifications are the very purpose of the legislation, mo-

tivated by major social policy considerations. The

procedural requirements are simply a means of im-

™The dissent expresses some concern about the ease with

which a claimant may assert that governmental conduct con-

tributed to procedural default, noting the difficulty a bure-

aucracy will have in rebutting allegations concerning one of

many thousand indistinguishable events. But the claimant

makes the allegation under oath and subject to cross-

examination. Testimony thus given, if accepted by the fact-

finder, is sufficient to send people to prison, even when the

witness stands to gain far more than a Social Security bene-

fit. No fact-finding process can preclude error, but the risk of

occasionally failing to detect a lie should not deny benefits

to those who tell the truth.

44a

plementing that purpose. They are designed to iden-

tify eligible individuals and deliver the benefits to

them as fairly and efficiently as possible. To reject

a qualified applicant because of a procedural defect

for which a government official is responsible is to

frustrate the purpose of the statute, not to uphold it.

Another objection of Judge Friendly’s is that the

substantive-procedural distinction is inappropriate in

the context of this case because, in the language of

Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65

S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945), the applica-

tion requirement concerns substance in the sense

that “it significantly affect[s] the result,” and does

not concern “merely the manner and the means by

which a right to recover ... is enforced.” * Even in

the terms of Guaranty Trust, a requirement that

benefits be applied for in writing seems closely anal-

ogous to the ‘“‘means by which a right to recover...

is enforced.” But more significantly, the most en-

during teaching of Guaranty Trust is that the terms

8 It is somewhat surprising to see matters classified as sub-

stantive because they significantly affect the result. That

outcome-determinative test, subsequently applied by the

Supreme Court to decide the reach of the Federal Rules of

Civil Procedure in diversity cases, e.g., Cohen v. Beneficial

Industrial Loan Corp., 387 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.

1528 (1949); Ragan v. Merchants Transfer & Warehouse

Co., 337 U.S. 530, 69 S.Ct. 1238, 98 L.Ed. 1520 (1949), has

since been modified, Byrd v. Blue Ridge Rural Electric Co-

operative, Inc., 356 U.S. 525, 78 S.Ct. 898, 2 L.Ed.2d 953

(1958), and later substantially eroded, Hanna v. Plumer, 380

U.S. 460, 85 S.Ct. 1186, 14 L.Ed.2d 8 (1965), ever in the

context of choosing between federal and state law. As Pro-

fessor Wright has observed, “It is difficult to conceive of any

rule of procedure that cannot have a significant effect on the

outcome of a case.” C. Wright, Handbook of the Law of Fed-

eral Courts 273 (1976).

45a

“substance” and “procedure” do not have constant

meanings in all contexts. “Each implies different

variables depending upon the particular problem for

which it is used.” Jd. at 108, 65 S.Ct. at 1469. In

the context of determining when it is appropriate

to consider the Government estopped by the conduct

of its agents, the distinction can sensibly be drawn

between substantive policy, which concerns definition

of the class to whom benefits are extended, and pro-

cedure, which concerns the method by which any one

person establishes eligibility. There may well be rea-

sons why Congress would not want benefits extended

to those not substantively eligible, even if govern-

mental conduct contributed to ineligibility, but it is

hard to imagine why Congress would want benefits

denied to a person for whom the benefits are in-

tended when governmental conduct has been a cause

of that person’s failure to make proper application.

Judge Friendly also voices the concern that per-

mitting estoppel in these circumstances will create a

drain upon the public treasury. Perhaps this would

be true if estoppel were permitted to provide benefits

to those who fail to meet the substantive require-

ments of the statute, but the rule applied in this

case entirely avoids that danger. The only people

who will gain from this decision are those who are

substantively qualified: those whom Congress in-

tended to receive the benefit. Such people cannot

truly be a drain upon the public treasury, since they

should have received the money in the first place.

The actuarial estimates that determine the funding

levels of the Social Security trust funds are based

primarily on demographic facts. The rate at which

Mrs. Hansen’s deceased former husband and his em-

ployer made social security payments was set at a

46a

level sufficient to provide benefits for those like Mrs.

Hansen who are substantively eligible for them. It

is possible to imagine, though difficult to believe, that

the actuarial estinates took into account the an-

ticipated percent of eligible persons who would fai!

through ignorance, laziness or other cause unrelated

to the conduct of Social Security personnel to file

written applications.’ But it is not even imaginable

that an estimate was made of the number of eligible

persons who would appear at Social Security offices

inquiring about the filing of written applications

only to be deterred by an employee’s misinformation

as to their eligibility and his failure, contrary to

office instructions, to encourage the filing of a writ-

ten application. The point is that this decision does

not drain the public fise of one dollar that is being

spent either in excess of anticipated benefit levels or

contrary to a substantive policy decision of the

Congress. .

Of course impact upon the public fise is not ir-

relevant to this or any other case where monetary

claims are asserted against the Government. The

dissent’s apprehension about the cost of ascertaining

the facts of eligibility in the absence of a written

application has undeniable force as a general prin-

ciple. But it has no application to this case. To es-

tablish her eligibility Mrs. Hansen needed proof that

®In fact, the basic document of the Social Security Admin-

istration describing the actuarial methodology for the entire

Old-Age, Survivors, and Disability Insurance System omits

any reference to an estimate of eligible beneficiaries who fail

to apply for benefits. ‘‘Methodology Involved in Developing

Long-Range Cost Estimates for the Old-Age, Survivors, and

Disability Insurance System,” Actuariai Study No. 49. U.S.

Department of Health, Education, and Welfare, Social Secur-

ity Administration, Division of the Actuary (May 1959).

47a

she married and later divorced her former husband,

that he is dead, that he has minor children who are

the offspring of that marriage, and that he had

insured status. The last-mentioned fact is entirely

within the knowledge of Social Security, and the

first three, properly to be proved by her, are not in

dispute, nor has any claim been made that the Gov-

ernment has been put to any expense to verify these

facts. Mrs. Hansen is indisputably a member of the

class for whom the benefits were intended and paid

for, and no hardship or expense has been sustained

by the Government in determining that fact.

Estopping the Government from reliance on a pro-

cedural default is especially appropriate in the con-

text of a program like Social Security. It is designed

to confer benefits to millions of people who are not

expected to need legal advice to present their claims.

Moreover, the system is administered by a vast net-

work of local offices for the very purpose of assisting

individuals to obtain their benefits. I concur not

because the amount of money Mrs. Hansen seeks is

small, but because it is only fair that it be paid.

48a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

twenty-fourth day of March one thousand nine hun-

dred and eighty.

Present:

Hon. HENRY J. FRIENDLY

HON. JAMES L. OAKES

Hon. JON O. NEWMAN

Circuit Judges

79-6125

ANN HANSEN, PLAINTIFF-APPELLEE

Vv.

JOSEPH A. CALIFANO, JR., SECRETARY OF HEALTH,

EDUCATION, AND WELFARE, DEFENDANT-APPELLANT

Appeal from the United States District Court

for the District of Vermont

This cause came on to be heard on the transcript

of record from the United States District Court for

the District of Vermont, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ment of said District Court be and it hereby is af-

firmed in accordance with the opinion of this court

with costs to be taxed against the appellant.

A. DANIEL FUSARO,

Clerk

by: Edward J. Guardaro,

EDWARD J. GUARDARO,

Deputy Clerk

49a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

sixteenth day of September one thousand nine hun-

dred and eighty.

Present:

Hon. HENRY J. FRIENDLY

HON. JAMES L. OAKES

HON JON O. NEWMAN,

Circuit Judges

79-6125

ANN HANSEN, PLAINTIFF-APPELLEE

PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH,

EDUCATION AND WELFARE, DEFENDANT-APPELLANT

A petition for a rehearing having been filed here-

in by counsel for the appellant

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

denied.

/s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

50a

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the 16th day of September, one thousand nine hun-

dred and eighty.

79-6125

ANN HANSEN, PLAINTIFF-APPELLEE

—against—

PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH,

EDUCATION AND WELFARE, DEFENDANT-APPELLANT

A petition for rehearing containing a suggestion

that the action be reheard en banc having been filed

herein by counsel for the appellant, and a poll of the

active judges having been taken, and there being no

majority in favor thereof,

UPON CONSIDERATION THEREOF, it is

Ordered that said petition be and it hereby is

DENIED.

Judges Mansfield, Mulligan, Timbers, Van Graafei-

land and Meskill voted in favor of rehearing en banc.

/s/ Wilfred Feinberg

WILFRED FEINBERG

Chief Judge

5la

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF VERMONT

Civil Action File No. 77-219

ANN HANSEN

Vv.

JOSEPH A. CALIFANO, JR., SECRETARY OF

HEALTH, EDUCATION AND WELFARE

OPINION AND ORDER

Plaintiff Ann Hansen seeks retroactive benefits as

a divorced mother under the Social Security Act for

the year preceding June 12, 1974. Although defend-

ant Secretary of Health, Education and Welfare (the

Secretary) concedes that she has been otherwise eligi-

ble under the statute since 1973, he denied benefits

for the period in question because plaintiff did not

complete a written application until May 7, 1975.

After a hearing, the Administrative Law Judge

(ALJ) finding support for his conclusion in certain

decided cases ruled against plaintiff’s contention that

she met the statutory application requirement when

she visited the Newport, Vermont Social Security Of-

fice on June 12, 1974 and orally requested benefits.

When the Appeals Council affirmed the ALJ, plain-

1 Based on 42 U.S.C. § 402(j) (1), the Secretary allowed

retroactive benefits for only twelve months prior to the date

of plaintiff’s written application.

52a

tiff properly sought review in this court. 42 U.S.C.

§ 405(g). Since the parties agree on the essential

facts, the court must address their cross motions for

summary judgment. We grant plaintiff’s motion and

deny that of the Secretary.

FACTS

As we have already noted, the Secretary admits

that plaintiff has been eligible for Social Security

insurance benefits as a divorced mother since 1973,

thus the only pertinent facts are the events sur-

rounding plaintiff’s visit to the Newport Social Secu-

rity Office on June 12, 1974. Plaintiff testified that

when she heard from a fellow employee and a local

attorney that she might be eligible for benefits she

went with her mother to the local Social Security

office. Record at 59-60. At the office, she had a ten

to fifteen minute interview with Dan Connelly, an

employee of the Social Security Administration

(SSA). Connelly does not recall the meeting; how-

ever, his Contact Tally Sheet for June 12, 1974

includes the last names of plaintiff and her two sons.

Record at 18, 112. According to the ALJ’s opinion:

At the hearing, the claimant testified that on

June 12, 1974, she went to the Newport, Ver-

mont District Office to apply for Divorced Moth-

er’s Insurance Benefits. She was interviewed by

Mr. Dan Connelly. The interview lasted about

ten to fifteen minutes. This interviewer advised

the claimant that she was not eligible for such

benefits. The claimant testified that the inter-

viewer question her marital status and she as-

sured him she had been married to the wage

earner. When she advised him that she has been

58a

divorced from her husband, he replied, “that’s

it. It’s because you’re divorced that you’re not

eligible.” The claimant testified he gave no other

explanation and nothing else was said.

* * * * *

On her first visit to the District Office, [Con-

nelly] did not ask her if she wanted to file an

application. When she asked him if she should,

he responded by advising her she was not eligible.

She testified she was not given a form by the

interviewer, nor did he suggest or encourage her

to file one and he didn’t explain the advantage

of filing an application.

(Record at 12-13).

Plaintiff’s mother also testified at the hearing. Al-

though she was in a separate room during the in-

terview, she verified that she accompanied plaintiff

to the SSA office. When plaintiff emerged from the

interview, according to her mother, she was agitated

at Connelly’s rude inferences that she had never been

married. Plaintiff also informed her mother that she

had been told she was not eligible.” Record at 66-68.

DISCUSSION

Under the Social Security Act a person is not

eligible for mother’s insurance benefits unless she

“has filed application” for them. 42 U.S.C. § 402

2 Plaintiff apparently accepted Connelly’s erroneous deci-

sion that she was ineligible, because she did not inquire fur-

ther or return to the SSA office until nearly a year later on

May 7, 1975. She acted then after reading a booklet SSA

sent to her son which indicated that she was eligible.

54a

(g)(1)(D). The Secretary, pursuant to authority

granted him in 42 U.S.C. § 405(a) to promulgate

regulations governing the administration of the So-

cial Security Act, has limited the term “application”

“only to an application on a form prescribed in

§ 404.602 ....” 20 C.F.R. § 404.601(c) (the Regula-

tion). Based on the Regulation, the Secretary con-

cluded that plaintiff’s oral request on June 12, 1974

to file an application did not fulfill the statutory re-

quirement. We are aware that we should afford the

Secretary’s interpretations of the Social Security Act

great weight, however, we find the Regulation too

restrictive as it applied to this case.

On the subject of statutory interpretation, Judge

Learned Hand has said:

. it is one of the surest indexes of a mature

and developed jurisprudence not to make a for-

tress out of the dictionary; but to remember

that statutes always have some purpose or object

to accomplish, whose sympathetic and imagina-

tive discovery is the surest guide to their mean-

ing.

Cabell v. Markham, 148 F.2d 787, 789 (2d Cir.),

aff'd, 326 U.S. 404 (1946). More than once, the

Second Circuit has written, “. . .‘the Social Security

Act is a remedial statute, to be broadly construed

and liberally applied.’ ”’ Bastien v. Califano, 472 F.2d

908, 912 (2d Cir. 1978) (quoting Gold v. Secretary

of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)); “in

consonance with its humanitarian aims,” Hisenhauer

v. Mathews, 535 F.2d 681, 686 (2d Cir. 1976). In

light of these instructions and the facts presented

here, we cannot read the words, “filed application” to

deny plaintiff benefits because she did not fill out a

55a

form.* We think it is particularly significant that

plaintiff asked to complete an application but was

denied that opportunity. The Regulation may be rea-

sonable when SSA employees follow the explicit di-

rections in the Social Security Claims Manual to

inform an applicant of the advantages of filing an

application and to suggest filing even in cases of

doubtful eligibility. Social Security Claims Manual

§ 2003, Record at 34-86. But here, Connelly not only

did not suggest that plaintiff file, but refused her

request to do so; in these particular circumstances

the Regulation is unreasonably restrictive.

Although the Secretary has referred us to one

unreported decision * which strictly applied the writ-

ten application requirement, we find greater support

for the view we have expressed in Tuck v. Finch,

430 F.2d 1075, 1077 (4th Cir. 1970); Leimbach v.

3“Tn practical terms ... when a Social Security Act pro-

vision can reasonably be construed in favor of the one seeking

benefits, it should be so construed.” Damon v. Secretary of

HEW, 557 F.2d 31, 33 (2d Cir. 1977). See Broussard v.

Weinberger, 499 F.2d 969, 970 (5th Cir. 1974); Ziskin v.

Weinberger, 379 F. Supp. 124, 126 (S.D. Ohio 1973). Cf.

Williams v. Richardson, 523 F.2d 999, 1002 (2d Cir. 1975)

(equitable adoption concept recognized “for the purpose of

allowing benefits absent strict compliance with statutory

requirements’).

* Goff v. Weinberger, [1975-76 Transfer Binder] Unempl.

Ins. Rep. (CCH) {14,470 (D. Conn. 1975), aff’d mem., 538

F.2d 309 (2d Cir. 1976) (oral opinion not citable as prece-

dent). In Goff, Judge Clarie distinguished a contrary Fourth

Circuit decision, Tuck v. Finch, 480 F.2d 1075. (4th Cir.

1975), because in the case before him SSA files contained no

written record of the plaintiff’s inquiry. In the instant case,

however, Connelly’s Contact Tally Sheet for June 12, 1974

records plaintiff’s visit.

56a

Califano, 450 F. Supp. 245, 246 (E.D. Mo. 1978) ;

and Holmes v. Weinberger, 423 F. Supp. 149, 152-54

(E.D.N.Y. 1976).

Accordingly, we grant plaintiff’s motion for sum-

mary judgment and deny defendant’s cross-motion.

Dated at Burlington in the District of Vermont,

this 25th day of April, 1979.

/s/ Albert W. Coffrin

ALBERT W. COFFRIN

District Judge

57a

APPENDIX F

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

P.O. Box 2518, Washington, D.C. 20013

September 1, 1977

IHA-2

009-16-8115

ACTION OF APPEALS COUNCIL ON REQUEST

FOR REVIEW

Mrs. Ann Hansen

59 Glen Road

Newport, Vermont 05855

Dear Mrs. Hansen:

After your request for review of the hearing decision

was received, a careful study was made of your case,

the applicable law and regulations, and the factual

and legal arguments presented in the brief filed on

your behalf.

The Appeals Council has decided that the decision

is correct. Further action by the Council would not,

therefore, result in any change which would benefit

you. Accordingly, the hearing decision stands as

the final decision of the Secretary in your case.

If you desire a court review of the hearing decision,

you may commence a civil action in the district court

of the United States in the judicial district in which

you reside within sixty (60) days from the date of

receipt of this letter. It will be presumed that this

letter is received within five (5) days after the date

58a

shown above, unless a reasonable showing is made

otherwise. See section 205(g) of the Social Security

Act, as amended (42 U.S.C. 405(g)), and section

422.210 of Social Security Administration Regula-

tions No. 22 (20 CFR 422.210).

If such action is commenced, the Secretary of Health,

Education, and Welfare is the proper defendant.

Also, please include your social security number in

the Bill of Complaint.

RR, RSI, NPSC, Flushing, NY

DO, Montpelier, VT

HO, Manchester, NH (ALJ Milne)

Sincerely yours,

/s/ Edwin C. Satter, III

EDWIN C. SATTER, III

Member, Appeals Council

ce:

Mr. Lander B. Rubin

Attorney at Law

St. Johnsbury, Vermont 05819

59a

APPENDIX G

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

Bureau of Hearings and Appeals

DECISION

In the case of

ANN RIEGEL HANSEN, CLAIMANT

WALLACE M. RIEGEL, JR., WAGE EARNER

Claim for

Divorced Mother’s Insurance Benefits

S.S. No. 009-16-8115

This case comes for hearing and decision by a request

for hearing filed by the claimant.

ISSUES

The general issue is whether the claimant is entitled

to Divorced Mother’s Benefits retroactive to June 12,

1973. The specific issue is whether a filing date of

June 12, 1974 can be established based upon an in-

tent to file a claim on the part of the claimant on that

date.

LAW AND REGULATIONS

Section 202(g) (1) (d) of the Social Security Act, (42

U.S.C. 402(g) (1) (d)), provides that a claimant ap-

plying for Divorced Mother’s Benefits must file an

application for Mother’s Insurance Benefits.

60a

Section 202(j)(1) of the Social Security Act (42

U.S.C. 402(j) (1) ), provides for a limitation of retro-

activity of benefits based upon the filing of an ap-

plication to twelve (12) months prior to the applica-

tion date.

Section 404.601(c) of Social Security Administration

Regulation No. 4 (20 CFR 404.601), defines an ap-

plication on a form prescribed in Section 404.602 of

Regulation No. 4.

Section 404.602 of the Social Security Administration

Regulation No. 4 (20 CFR 404.602), provides in part,

that applications shall be made as provided in Sub-

part G of Regulation No. 4 on such forms and in

accordance with such instructions (provided thereon

or attached thereto) as are prescribed by the Ad-

ministration.

Section 422.505(a) of Social Security Administra-

tion Regulation No. 4 (20 CFR 422.505(a) provides

in part that the application form to be used by a

surviving divorced mother to file a claim for Mother’s

Insurance Benefits under Title II of the Social Se-

curity Act is designated as SSA-5.

Section 404.613(a) of Social Security Administration

Regulation No. 4 (20 CFR 404.613(a) provides in

part that where an individual files a written state-

ment with the Administration that indicates an in-

tention to claim monthly benefits and such statements

bears his signature or his mark properly witnessed,

the filing of such written statement is, unless other-

wise indicated, considered to be the filing of an ap-

plication provided a prescribed application form is

filed within six (6) months from the date of such

notice.

6la

EVIDENCE CONSIDERED

All the testimony given at the hearing and the docu-

ments described in the List of Exhibits attached to

this decision have been carefully considered.

SUMMARY AND EVALUATION

OF THE EVIDENCE

The claimant testified that she went to the District

Office in Newport, Vermont, on June 12, 1974, to

apply for Divorced Mother’s Insurance Benefits. She

was advised by the interviewer that she was not

eligible for such benefits.

The claimant did not file an application at that time.

She subsequently filed an application for said bene-

fits in the same District Office on May 7, 1975, and

was awarded benefits. The claimant was advised that

she had been eligible for benefits on June 12, 1974,

when she first came to the District Office. The claim-

ant filed a request for retroactive benefits to June 12,

1973, on the basis of her intention to apply on June

12, 1974. Her request was, upon reconsideration, de-

nied, and the claimant filed this timely request for

hearing.

At the hearing, the claimant testified that on June

12, 1974, she went to the Newport, Vermont District

Office to apply for Divorced Mother’s Insurance Bene-

fits. She was interviewed by Mr. Dan Connelly. The

interview lasted about ten to fifteen minutes. This

interviewer advised the claimant that she was not

eligible for such benefits. The claimant testified that

the interviewer questioned her marital status and she

assured him she had been married to the wage earner.

When she advised him that she has been divorced from

62a

her husband, he replied, “that’s it. It’s because you’re

divorced that you’re not eligible.” The claimant tes-

tified he gave no other explanation and nothing else

was said.

The claimant testified that the reason she went to

the District Office to apply in June 1974, was be-

cause she was advised by a friend and coworker as

well as an attorney that she was eligible for bene-

fits and should apply for them. In spite of this advice

she did not press the issue of filing an application

when advised that she was not eligible, as she be-

lieved the interviewer was correct in his assessment.

During the period from June 1, 1974 to May 7, 1975,

she made no further contact with the District Office.

She further testified that she subsequently received

a Social Security publication in the mail regarding

various aspects of applying for benefits which

prompted her to contact the District Office again, at

which time she was advised by the interviewer that

she was eligible for Divorced Mother’s Insurance

Benefits at the time she first came to the District

Office on June 12, 1974.

On her first visit to the District Office, the inter-

viewer did not ask her if she wanted to file an ap-

plication. When she asked him if she should, he

responded by advising her she was not eligible. She

testified she was not given a form by the interviewer,

nor did he suggest or encourage her to file one and

he didn’t explain the advantages of filing the ap-

plication.

The claimant’s mother accompanied her to the office

on that occasion and she testified that she remained

in the waiting room during the interview. She did

63a

not hear what was said during the interview, but

testified that upon completion of same, the claimant

was very upset and told her that she was advised she

was not eligible for benefits.

Exhibit 11 consists of a compilation of Contact Sta-

tion Tally Sheets for the period April 17, 1974 to

June 19, 1974. Page eleven (11) of that exhibit con-

sist of the Contact Tally Sheet for June 12, 1974

and includes the names Riegel, Riegel and Hansen

with the notation “PAD” (post adjudication action).

The claimant’s name was not noted on any of the

other tally sheets contained in the exhibit. Exhibit

7 consists of a Report of Contact form completed on

September 11, 1975, by Mr. Daniel J. Connelly,

wherein he states that he reviewed the tally sheets

for May 1974, and did not see the claimant’s name

listed, but did note her name on the sheet for June

12, 1974. He stated in his report that he was not

sure if he talked with the claimant on that date and

if he did, he could not recall the substance of the

interview.

Based upon a preponderance of the evidence in the

record and the testimony at the hearing in this

matter, it appears that the claimant did contact the

Newport District Office on June 12, 1974. Notwith-

standing the fact that Mr. Connelly, in his statement

(Exhibit 7), does not recall talking with the claim-

ant and even if he did, does not recall the substance

of that conversation, it is not unreasonable to con-

clude, based on the claimant’s testimony, that she

did go there to apply for Divorced Mother’s Benefits

and that she was advised was not eligible. Even as-

suming this fact, the issue to be decided now is

whether that contact in and of itself, constituted the

filing of an application pursuant to the applicable

64a

law and regulations. The evidence indicates that Mr.

Connelly did not refuse to give the claimant an ap-

plication form or refuse to allow her to file an ap-

plication. He merely advised the claimant regarding

her eligibility and she decided not to press the issue

and have her eligibility determined by the Adminis-

tration in accordance with the usual procedure. It

is also noteworthy that the claimant failed to indi-

cated to Mr. Connelly that she had been advised that

she was eligible not only by a friend, but also by an

attorney. In spite of this she failed to press her claim

at the time and did not even contact the agency for

almost a year. The claimant, through her attorney,

has submitted a legal brief outlining the legal prece-

dent which she believes supports her contention. The

brief raises two theories upon which the claimant

should prevail, namely, that in the first instance her

contact with the District Office or “oral attempt to

apply for benefits” satisfies the statutory require-

ments of 202(g)(1)(d) and (j)(1) (20 CFR 402

(g)(1)(d) and (j)(1)), and does so in spite of the

provisions of 20 CFR 404.601. Secondly, the claim-

ant is entitled to benefits based on the theory of

estoppel and the Administration should be prevented

from relying on the respective law and regulations

based upon the fact that the claimant’s action or lack

thereof, was the direct result of the misinformation

provided to her by the Social Security interviewer.

The facts as they relate to the applicable law and

regulations will be first discussed and then the argu-

ments presented in the claimant’s brief will be re-

viewed.

At the time of the first contact with the District

Office in June 1974, the law and regulations govern-

ing the filing of applications for the benefits in ques-

65a

tion were contained in Section 202(g)(1)(d) and

(j) (1) of the Social Security Act (42 U.S.C. 404

(g)(1)(d) and (j)(1)) and Section 404.601 of So-

cial Security Regulation No. 4 (20 CFR 404.601). Sec-

tion 202(g)(1)(d) specifically makes reference to

the fact that as a condition of entitlement to such

benefits the claimant shall have filed an application

for Mother’s Insurance Benefits. Also, Section 202

(j)(1), in discussing the provisions for retroactive

benefits, specifically makes reference several times

to the fact that a claimant has filed an application

for benefits. It is true that it is not specified whether

the application shall be written or oral. For a de-

termination of that issue we must review the pro-

visions of Section 404.601 (20 CFR 404.601), which

in part defines an application in subsection (c) as an

application on a form prescribed in Section 404.602

of the Regulation. In turn, that Section provides

that such written application shall be on forms pre-

scribed by the Administration. Section 422.505 of

the Regulation (20 CFR 422.505) specifically indi-

cates that the appropriate form for Mother’s Insur-

ance Benefits is known as SSA-5, Application for

Mother’s Insurance Benefits. Nowhere throughout

the Regulation is there any provision for the filing

of an oral application. The Social Security Regula-

tions are legal extensions of the Social Security Act

and comprise the legal vehicle for the proper imple-

mentation of the Act.

There is provision for an exception to the formal

written application rule which is contained at 404.613

(20 CFR 404.613) whereby a written statement of

an intent to file for benefits will be considered as an

application, however, the claimant in this case did

not file any written requests for benefits or inquiries.

66a

She did not contact the District Office at all until

the time of filing her formal application. Therefore,

the only conclusion that can be reached is that the

claimant did not satisfy any of the requirements of

the law and regulations in effect on June 12, 1974,

relative to the filing of a written application or

statement of intent to file.

Relative to the issues raised in the claimant’s brief

and in support thereof, the claimant cites the case of

Holmes v. Weinberger, 423 F. Supp. 149 (EDNY

1976) to support the contention that an oral intent

to file for benefits or an oral application satisfies the

requirements of the statute. In that case a claimant

applied for Child’s Insurance Benefits in 1967 and

was advised by an employee of the Administration

that a claim could not be processed without the wage

earner’s social security number. A period of five

(5) years passed before the claimant filed an applica-

tion and was awarded benefits. During that time the

claimant made several contacts with the District Of-

fice by telephone, in person, and also by correspond-

ing with them and always received the same advice.

The court in that case considered the Administra-

tion’s prior regulations allowing for application by

oral intent to file a claim as evidence that the Ad-

ministration construed the application provision of

the statute liberally. The regulations in question

were changed in 1955 and the court conceded that

a literal application of the statute and regulations

in effect at the time of its decision would result in a

denial of the claim. The claimant here asserts the

facts of that case are similar to those presented here.

I cannot agree. The claimant made only one contact

with the District Office and for a period of one year

made no further contacts. She sent no letters as the

67a

claimant did in the cited case. Also, the period of

time is much less brief, one year compared to five

years.

Even though the case of Holmes v. Weinberger is to

be considered applicable, it emanates from the Dis-

trict Court and not the Circuit Court of Appea!s or

the United States Supreme Court and is not precedent

for this issue.

A second case cited by the claimant is that of Tuck

v. Finch, 430 F. 2d 1075 (4 Cir. 1970). In that case

the claimant needed additional quarters of coverage

to be entitled to disability insurance benefits based

on self-employed income. The claimant was outside

the three year, three months, 15 day rule for filing

an amended return and so he sought to establish an

earlier filing date on the basis of an oral application

to toll the time limit provision. In this case the court

took into consideration the fact that the claimant

was illiterate. Also, in addition to the claimant’s in-

itial contact at which time his claim was reviewed,

there was a subsequent contact on the part of the

District Office with the claimant. Although there may

exist some underlying similarity between that case

and this one, the particular facts are not similar

at all as the claimant alleges.

Assuming that the case of Tuck v. Finch is applicable

to the facts in this case, it is not precedent in the

Second Circuit of which Vermont is a part, but only

applicable in the Fourth Circuit.

With regard to the issue of estoppel, the claimant

cites Corniel-Rodriguez v. I.N.S., 582 F. 2d 301 (2

Cir. 1976). In that case the Immigration Depart-

ment was estopped from deporting an alien because

an employee of the Department had failed to give the

68a

alien the necessary information at the time of her

entry to the United States, in violation of a Federal

regulation requiring the giving out of this informa-

tion. The claimant contends in her case there was

a breach of a similar affirmative duty to inform the

claimant of her rights relative to the filing of an

application, which duty is prescribed in Section 2003

(a) of the Social Security Claims Manual. In the

case cited, the employee’s failure to advise the alien

constituted a violation of a Federal regulation. The

Social Security Claims Manual is not a Federal reg-

ulation and nowhere in the Social Security Regula-

tions can there be found such a mandate. In fact,

the Second Circuit Court drew a distinction between

its decision in the Corniel-Rodriguez case and the

ease of Goldberg v. Weinberger, 546 F. 2d 477 (2

Cir. 1976) wherein it stated in footnote No. 5 in

the Goldberg decision as follows:

“Our decision in Corniel-Rodriguez v. I.N.S. is

not to the contrary. We held there that estoppel

may be involved against the government where

there is ‘noncompliance with an affirmatively re-

quired procedure.’ We tock pains, however, to

limit our decision to the specific facts of that

case, particularly, the fact that the government

employee had failed to provide petitioner with a

warning mandated by federal regulations. No

such regulations govern Social Security Adminis-

tration employees.”

In Goldberg v. Weinberger, the claimant who was re-

ceiving widow’s insurance benefits inquired of the

District Office relative to the effects of her remarry-

ing. This was prior to her 60th birthday. She was

advised that her benefits would continue but at a

reduced rate. The claimant remarried two months

69a

prior to her 60th birthday and benefits ceased. She

alleged the Administration should be estopped from

denying her benefits based on the erroneous infcrma-

tion given to her by the Administration employee.

The court did not agree. It stated that it is well es-

tablished that “estoppel cannot be set up against the

Government on the basis of an unauthorized rep-

resentation or act of an officer or employee who is

without authority in his individual capacity to bind

the government.”

Byrne Organization, Inc. v. U.S., 287 F. 2d 582, 587

(1961); Federal Crop Insurance Corp. v. Merrill,

332 U.S. 380. The court further reasoned that “gov-

ernment 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 regulations imposed by Con-

gress. 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 statutes and regulations.”

It is noted that the case of York v. Weinberger (E.D.

Cal. 1976) cited by the claimant, reached the oppo-

site conclusion in applying the doctrine of estoppel in

the case of a claimant who attempted to file for bene-

fits based on the disappearance of her husband and

who was advised that she must wait seven years to

do so. However, it should also be noted the case was

never appealed to the Circuit Court and the Circuit

Court for the Second Circuit has passed on the point.

Even if the Circuit Court in California has deter-

mined the issue it should be noted we would not be

bound by its decision. We are bound by the decision

in Goldberg v. Weinberger until such time as the

70a

court either reverses itself or is overruled by a de-

cision of the Supreme Court relative to the issue in

question. Also, the York case was characterized by an

expanded period of time by comparison with the in-

stant case and several contacts between the claimant

and the District Office. In the case of Goff v. Wein-

berger, District Court of Connecticut, and affirmed by

the Circuit Court of Appeals at 538 F2d 309 (2 Cir.

1976), the plaintiff made an oral inquiry in July 1959

through her attorney relative to her eligibility for

Social Security benefits. Her attorney was advised by

a District Office employee that since the family was re-

ceiving Workmen’s Compensation benefits they would

not be eligible for Social Security benefits. On January

28, 1971, plaintiff filed for and received benefits retro-

active to January 1970. The plaintiff alleged that the

misinformation given to her in 1959 dissuaded her

from filing a written application and that the oral

inquiry of her attorney should be considered as a law-

ful statement of intent to file an application for bene-

fits thereby entitling her to benefits retroactive to

1959.

The court determined that the factual situation in

that case did not conform to the essential require-

ments of 20 CFR 404.602 and 404.613. The court

noted that “the administrative purpose of the Act

and its supporting regulations were specifically de-

signed to assure, that only a written expression of

intent to claim Social Security benefits should be

accepted and considered as a valid application under

the law.” The court further noted that “the Social

Security Act, supplemented by its regulations, was

intended to eliminate or at least reduce to a minimum

the possibility of fraud, confusion, and laxity in its

Tla

administration. The vastness of the program makes

it essential to adhere to the written application pro-

cedure, if there is to be an orderly and controllable

system of management for approving claims and

paying out insurance benefits.”

Relative to the issue of estoppel, the court adopted

the language of the Supreme Court in Federal Crop

Insurance Corp. v. Merrill, 332 U.S. 380, wherein it

stated that “parties dealing with the Government are

charged with knowledge of and are bound by statutes

and lawfully promulgated regulations despite reli-

ance to their pecuniary detriment upon incorrect in-

formation received from Government agents or em-

ployees. Estoppel will not lie regardless of the finan-

cial hardship resulting from innocent ignorance.”

After considering all of the evidence and the argu-

ments and precedent raised in the claimant’s brief,

it appears that the claimant failed to file a formal or

written application for Mother’s Insurance Benefits

on June 12, 1974, after being advised she was not

eligible. She had no further contact with the District

Office for almost a year regarding her claim. She had

previously been advised by a friend and an attorney

that she was eligible for benefits. She filed a formal

application on May 7, 1975, and was awarded bene-

fits. The claimant filed

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.