# Petition — Schweiker v. Hansen

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 785

## 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 |

Iv

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

12

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)

2

(A) is not married,

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

(C) is not entitled to old-age insurance
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:

3

(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:’

(c) Application defined. Unless otherwise speci-
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

4

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).

5

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).

6

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).

7

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

8

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,

9

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).

10

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).

11

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

12

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.

13

“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.

14

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-

15

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

16

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.

17

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

18

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).

19

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

la
APPENDIX A
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
No. 824, Docket 79-6125
ANN HANSEN, APPELLEE
v.

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—

2a

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.

3a

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

4a

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.

5a

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-

6a

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

Ta

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.

(c) Application defined. Unless otherwise specified,
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).

8a

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.

9a

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. Th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1132%3A1. Public record. Not legal advice.