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USCA1 Opinion
March 9, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2309
NORMA GILBERT,
Plaintiff, Appellant,
v.
LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
ERRATA SHEET
The opinion of this Court issued on March 6, 1995 is amended
as follows:
On Page 5, line 15, delete "see, e.g.," ___ ____
On Page 5, line 16, delete "see, e.g.," ___ ____
On Page 5, line 17, delete "see, e.g.," ___ ____
On Page 6, lines 12-13, delete "828 F. Supp. 815 (D.Colo.
1993), aff'd," _____
March 6, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2309
NORMA GILBERT,
Plaintiff, Appellant,
v.
LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
___________________
Before
Selya, Boudin and Stahl,
Circuit Judges. ______________
___________________
David B. Green on brief for appellant. ______________
Edwin J. Gale, United States Attorney, Stephanie S. Browne, _____________ ___________________
Assistant United States Attorney, Randolph W. Gaines, Acting ___________________
Deputy Chief Counsel for Social Security, A. George Lowe, Deputy _______________
Chief Counsel for Social Security Disability Litigation, and Mary ____
Ellen Russell, Office of the General Counsel, Social Security ______________
Division, Department of Health and Human Services, on brief for
appellee.
__________________
__________________
Per Curiam. Claimant Norma Gilbert appeals a district __________
court judgment affirming the Secretary's refusal to reopen a
prior denial of social security disability benefits.
I I _
In June 1990, Gilbert filed her second application for
social security disability benefits and, after a hearing, was
found to have been disabled since April 30, 1984. A November
1984 application had alleged the same impairment and the same
disability onset date. The 1984 claim was filed without the
assistance of counsel and Gilbert failed to pursue the denial
past the reconsideration stage. As a result, the
reconsidered denial became the final agency determination.
See 20 C.F.R. 404.921. In 1990, Gilbert sought to reopen ___
the earlier application. Because more than five years had
elapsed between the adverse notification on the first
application and the filing of the current application, the
Administrative Law Judge (ALJ) found no record indication of
fraud or clear error under 20 C.F.R. 404.988(c)(1) or
(c)(8) to warrant reopening the first determination, which
was deemed administratively final. Subsequently, the agency
limited Gilbert's retroactive benefits to June 1989, one year
preceding the second application. See 42 U.S.C. 423(b); 20 ___
C.F.R. 404.621(a)(1)(i).
In district court, Gilbert complained that the Secretary
improperly refused to pay disability benefits from May 1984
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to June 1989 and raised a constitutional challenge to the
reopening refusal. Claimant also contended that there had
been a de facto reopening of the 1984 application.1 The __ _____
district court concluded that the ALJ had not reopened the
prior determination and, without reaching the constitutional
question, dismissed the complaint for lack of subject matter
jurisdiction under the authority of Califano v. Sanders, 430 ________ _______
U.S. 99, 108 (1977).2 Gilbert's motion for summary judgment
was also denied, and this appeal ensued.
Our review of a dismissal for lack of subject matter
jurisdiction is de novo. See Shea v. Rev-Lyn Contracting ___ ____ ____________________
Co., 868 F.2d 515, 517 (1st Cir. 1989). Reopening decisions ___
are a matter of agency discretion and generally are not
____________________
1. Contrary to claimant's assertions, however, there is no
authority for a de facto reopening "at any time" absent the __ _____
narrow exceptions laid out in 404.988(c)(1)-(c)(11). The
Secretary's discretion to reopen cannot be extended beyond
the scope of the regulatory scheme, 20 C.F.R. 404.988, and
all reopenings, whether express or implied, are subject to
those regulatory requirements. Since claimant wholly failed
to identify any fraud or clerical error, 20 C.F.R.
404.988(c)(1),(c)(8), in connection with the first
application, the Secretary lacked discretion to reopen and no
constructive reopening could have occurred. See Coates on ___ _________
behalf of Coates v. Bowen, 875 F.2d 97, 102 (7th Cir. 1989). ________________ _____
2. The Secretary's motion to dismiss under Fed. R. Civ. P.
12(b)(1) included an affidavit with relevant administrative
decisions attached as exhibits, but without the complete
administrative record. We have indicated before that the
better practice is the routine filing of the entire
administrative record. Torres v. Secretary of HHS, 845 F.2d ______ _________________
1136, 1137 n.1 (1st Cir. 1988). Nonetheless, the limited
record before us is sufficient to decide the essentially
legal question presented here.
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subject to judicial review, but an exception exists if a
colorable constitutional claim is presented. Sanders, 430 _______
U.S. at 109; Dudley v. Secretary of HHS, 816 F.2d 792, 795 ______ _________________
(1st Cir. 1987); Carver v. Secretary of HHS, 869 F.2d 289, ______ ________________
292 (6th Cir. 1989) ("[C]ourts have consistently upheld the
imposition of the doctrine of administrative res judicata in
social security cases except under circumstances that
implicate a colorable constitutional issue."). Gilbert
argues that the denial notices given when she was proceeding
pro se on the first application did not explain the ___ __
consequences of reapplying for benefits rather than seeking
further administrative review, and therefore violated her
procedural due process rights.3
Gilbert relies on Gonzalez v. Sullivan, 914 F.2d 1197, ________ ________
1203 (9th Cir. 1990), which held that the initial denial
____________________
3. Procedural due process in the social security context
requires no more than an opportunity to be heard "``at a
meaningful time and in a meaningful manner.'" Mathews v. _______
Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. ________ _________
Manzo, 380 U.S. 545, 552 (1965)). _____
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notice Gonzalez received violated due process.4 In
pertinent part, the denial notice in Gonzalez informed: ________
If you do not request reconsideration of your case
within the prescribed time period, you still have
the right to file another application at any time.
Id. The Gonzalez court found that notice constitutionally ___ ________
infirm because it failed to inform how to appeal a denial:
[T]he form of the notice used here is sufficiently
misleading that it introduces a high risk of error
into the disability process. . . . The notice given
in this case does not clearly indicate that if no
request for reconsideration is made, the
determination is final. We conclude that the
notice violates appellant's fifth amendment right
to due process.
Id. ___
Other courts have recognized that the particular notice
form used in Gonzalez poses serious due process concerns. ________
See, e.g., Day v. Shalala, 23 F.3d 1052, 1065-66 (6th Cir. ___ ____ ___ _______
1994); Aponte v. Sullivan, 823 F. Supp. 277, 282 (E.D.Pa. ______ ________
1993); Christopher v. Secretary of HHS, 702 F. Supp. 41, 43 ___________ _________________
(N.D.N.Y. 1989); Butland v. Bowen, 673 F. Supp. 638, 641 _______ _____
(D.Mass. 1987); Aversa v. Secretary of HHS, 672 F. Supp. 775, ______ ________________
777 (D.N.J. 1987); Dealy v. Heckler, 616 F. Supp. 880, 887 _____ _______
____________________
4. The Gonzalez decision became the subject of the ________
Secretary's Acquiescence Ruling 92-7(9) (published September
30, 1992). According to the ruling, claimants who received a
Gonzalez notice before July 1, 1991 and did not appeal, but ________
subsequently filed another application that either requested
a reopening of the prior determination or requested some or
all of the benefits then claimed, were entitled to a new
determination based on the merits of their claim without
regard for the usual time limits imposed upon reopening
requests.
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(W.D.Mo. 1984); see also Burks-Marshall v. Shalala, 7 F.3d ___ ____ ______________ _______
1346, 1349 (8th Cir. 1993) (dictum).5
Gilbert's notice is not available, but the Secretary
concedes that it is substantially the same as that rejected
in Gonzalez. As it is undisputed that claimant received the ________
kind of Gonzalez notice that courts have uniformly recognized ________
as inadequate, we find that Gilbert has proffered a colorable
constitutional claim and the district court had jurisdiction
to review the denial of reopening.
II II __
The Secretary argues, however, that Gilbert's due
process claim is not colorable because she has not
demonstrated that she forfeited her right to appeal the prior
denial in reliance on the notice. The question was not
discussed in Gonzalez, but we believe that reliance on the ________
defective notice is a core ingredient of claimant's prima _____
facie showing of a due process deprivation. "Without such _____
reliance, the injury is not fairly traceable to the
challenged action." Gilbert v. Shalala, __ F.3d __, 1995 WL _______ _______
16762, *2 (10th Cir. Jan. 17, 1995). Only claimants who
detrimentally relied on an inadequate notice could have been
____________________
5. In Gilbert v. Shalala, 828 F. Supp. 815, 816 (D.Colo _______ _______
1993), aff'd, __ F.3d __, 1995 WL 16762 (10th Cir. Jan. 17, _____
1995), the court reached a different conclusion, but there,
the allegedly deficient Gonzalez notice also contained this ________
language: "A new application is not the same as an appeal of
this determination."
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injured by it and were entitled to reopen their applications.
Day, 23 F.3d at 1066; see also Burks-Marshall, 7 F.3d at ___ ___ ____ ______________
1349; Delyria v. Shalala, 856 F. Supp. 1432, 1443 (D.Or. _______ _______
1994); Butland, 673 F.Supp. at 642; Dealy, 616 F. Supp. at _______ _____
886; cf. Air Line Pilots Ass'n v. Precision Valley Aviation, ___ ______________________ __________________________
Inc., 26 F.3d 220, 226 (1st Cir. 1994) (party invoking unique ____
circumstances exception to untimely notice of appeal must
show that detrimental reliance on judicial statement or
action was objectively reasonable); Jimenez-Nieves v. United ______________ ______
States, 682 F.2d 1, 4 (1st Cir. 1982) (justifiable reliance ______
upon a representation--taking action or refraining from it--
is an essential element of the tort of negligent
misrepresentation). Thus, to succeed on the merits of her
constitutional claim, Gilbert must show that she relied on
the flawed notice and was prejudiced.
Day, 23 F.3d at 1066, assigned essentially objective ___
criteria by which to assess whether or not a claimant had
established injury because of reliance upon erroneous
information: those claimants who received an inadequate
denial notice, reapplied (rather than appealing the prior
denial), and were met with either a res judicata defense or a ___ ________
reduced award had detrimentally relied on the faulty notice.
See id. & n.17; see also Delyria, 856 F. Supp. at 1439-40. ___ ___ ___ ____ _______
We agree, in the circumstances presented here, that the
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detrimental reliance test governs the showing claimant must
make to succeed on her procedural due process claim.
Parsing Day's formulation, undisputed historical facts ___
of record support a finding of detrimental reliance in this
case. Gilbert was denied benefits on her prior pro se ___ __
application; she received an admittedly defective Gonzalez- ________
type notice, and, acting in conformity with the notice, filed
a new application requesting a reopening. She later
testified that she did not know how to appeal the prior
denial. That Gilbert did not appeal but instead chose to
reapply for the same benefits evidences her reliance on the
Secretary's erroneous advice. See n.4, supra. Upon ___ _____
redetermination, Gilbert received retroactive benefits
reduced to one year and suffered the loss of almost five
years of benefits. Since the record indicates both reliance
on erroneous advice and concomitant actual harm, we conclude
that the Secretary's refusal to reopen violated claimant's
due process rights.
If the 1990 application had been claimant's first,
payment of retroactive disability benefits would clearly be
limited to one year prior to the application. 42 U.S.C.
423(b); 20 C.F.R. 404.621(a)(1); Crady v. Secretary of HHS, _____ ________________
835 F.2d 617, 619-20 (6th Cir. 1987). Since we conclude that
claimant has interposed a meritorious constitutional claim,
the procedural bar to reopenings after four years is lifted,
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and the relevant application date for retroactive benefits
purposes would be the onset date claimed in the first
application. See, e.g., Ferguson v. Sullivan, 718 F. Supp. ___ ____ ________ ________
1269, 1271-72 (W.D.N.C. 1989) (constitutional interest
implicated by claimant's mental incapacity to pursue
administrative appeal required that disability benefits be
calculated from previous application); see also Culbertson v. ___ ____ __________
Secretary of HHS, 859 F.2d 319, 322-24 (4th Cir. 1988) __________________
(similar). The award of one year of retroactive benefits is
too skimpy and benefits must be calculated from the April 30,
1984 disability date.
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III III ___
Ordinarily, having decided that the district court had
jurisdiction to review the reopening denial, we would remand
for further consideration below and not address the merits of
the case. In the distinctly unusual circumstances of this
case, where the record is for all practical purposes
complete, where the Secretary's concession regarding the
critical notice language is conclusive as to the content of
claimant's notices, and where Gilbert's reliance is
sufficiently evidenced in the record to enable this court to
decide the largely legal question whether the Secretary's
reopening rules should be relaxed, a remand is not required.
See Guglietti v. Secretary of HHS, 900 F.2d 397, 399 (1st ___ _________ _________________
Cir. 1990); see also Young v. Bowen, 858 F.2d 951, 956 (4th ___ ____ _____ _____
Cir. 1988); King v. Commissioner, 458 F.2d 245, 249 (6th Cir. ____ ____________
1972).
We conclude that the Secretary could not
constitutionally refuse to reopen Gilbert's first application
and that claimant should have been awarded disability
benefits for the period commencing April 30, 1984. The
judgment of the district court is reversed and the case is
remanded with instructions to return the case to the
Secretary for an award of disability benefits from April 30,
1984.
Reversed and remanded. ______________________
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Document Info
Docket Number： 93-2309
Filed Date： 3/6/1995
Precedential Status： Precedential
Modified Date： 3/3/2016