Ann Hansen v. Patricia Roberts Harris, Secretary of Health, Education and Welfare , 619 F.2d 942 ( 1980 )

OAKES, Circuit Judge:

This appeal does not involve a great deal monetarily: appellee is seeking mother’s insurance benefits, as provided in 42 U.S.C. § 402(g)¹ for the year preceding June 12, 1974. Yet the case does raise a significant issue of estoppel against the Government. The Department of Health, Education and Welfare (HEW)² 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 administrative law judge that had been upheld by the HEW Appeals Council.

Appellee, whose former husband died in 1967, became eligible for benefits as a divorced mother when the Social Security Amendments of 1972, Pub.L.No.92-603, 86 Stat. 1329, § 114(c), took effect on January 1, 1973. She did not, however, file the required written application, see 42 U.S.C. § 402(g)(1)(D), until May 1975. The estop-pel question arises from the actions of a Social Security Field Representative who, on June 12, 1974, supplied the applicant with misinformation about her eligibility and did not encourage 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 Security 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 following 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 afternoon, your Honor.

Q. And how long did you spend there?

A. It couldn’t have been any longer than between 10 to 15 minutes, if it was that long.

Q. And did you discuss with him anything else other than filing that application?

A. No. He asked who I was, and I told him, “Ann Riegel Hansen” and that my boys had a claim there, two Riegel boys, and I — I told him that I had heard that I was illegible (sic) for Divorced Mother’s Benefits, I was not—

Q. That you were eligible or not?

A. That I was.

Q. All right.

A. And I was there to file a form,—

Q. Uh-huh.

A. —and he — well, I (unintelligible)—

Q. What did he tell you?

A. He asked me — he said, “Were you ever married to the guy?” And I — I just looked at him and—

Q. What’d you tell him?

A. —he repeated the question again, because I was stunned, and I said, “Well, I can cross the street and go over to the City Clerk’s office and get you a marriage certificate.” And he said, “Oh, no, no,” he says, “that won’t be necessary.”

Q. All right, what else did he say?

A. And then he asked me what my marital statchus (sic) was at the time,—

Q. Uh-huh.

A. —“Were you divorced?” And I said, “Yes,” and he said, “Well, that’s it,” his hands went up in the air, he said, “That’s it then, that’s why you’re not illegible (sic).”

Q. Well, wait, did he say just, “That’s it,” or what else did he say, as near as you recall, after he said, “That’s it,” what— what else did he say by way of explanation?

A. He said, “That’s it, it’s because you’re divorced that you’re not illegible (sic).”

Q. Did he say that you were not eligible?

A. He said I was not illegible (sic) to file a form for Mother’s Benefits.

Q. Now, did he say the words that, “You aren’t eligible?”

A. Yes, your Honor.

Q. Or did he just say, “That’s it”?

A. He said, “That’s it,” and he said, “You’re not illegible (sic) to file a form because you are divorced at the time.”

Q. And did he give you any other explanation?

A. No he 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 described 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 married].” 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 daughter 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 Administration, 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),³ but no benefits for any time prior to that date.

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 encourage 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 requirements for filing of a written application as prescribed in 42 U.S.C. § 402(g)(1)(D),⁴ and (j)(l),⁵ and 20 C.F.R. § 404.601.⁶ He also held that the oral contact made by the claimant on June 12, 1974 could not be considered to satisfy the requirements for filing 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 appellee asked to complete an application but was denied that opportunity. In this case, the court held, the regulation requiring application in writing was “unreasonably restrictive,” especially since the Social Security Claims Manual explicitly directed SSA employees 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, 430 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 supra, provides the conditions 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 application is accordingly a condition precedent to entitlement to benefits under this section. E. g. Clark v. Cele-brezze, 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 applications 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 benefits 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):

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.’ ” Mourning v. Family Publications Service, 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973) (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 implementing 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. Califano, supra, 596 F.2d at 304.

But this does not end the matter. The Government may sometimes be es-topped 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 substantial evidence. See Franklin v. Secretary of HEW, 393 F.2d 640, 642 (2d Cir. 1968). But the ALJ’s narrative also includes the following: “[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.” This finding surely is supported by the claimant’s testimony, 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 resulted from appellee’s failure to tell Connelly that her former husband w^s dead, since this fact was a prerequisite 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 department procedures indicate that the Field Agent’s actions 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 application 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 12003. 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 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 not a regulation. It was not published as such in the Federal Register. But these facts are not conclusive 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 equitable 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 Seventies, § 17.01, at 399 (1976). The question has usually arisen in context where the claimant was substantively ineligible for the claimed benefit. Merrill itself involved substantive ineligibility for crop insurance based on a regulation making such insurance unavailable for reseeded winter wheat. 332 U.S. at 385, 68 S.Ct. at 3. This court’s decision in Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977), involved the unavailability of disability benefits to a disabled widow who had disqualified herself by remarrying before age 60. And in Corniel-Rodriquez v. INS, 532 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 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. 1336, 1340, 1341, 6 L.Ed.2d 313] (1961), no conduct of the sort there adverted to was involved here.”).

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 appel-lee the benefits she seeks. It is no answer to say that a written application 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 procedural requirement by a person who is substantively eligible on the other. In our view, at least in the latter case, misinformation provided by a Government official combined with a showing 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 conduct were sufficient to create an estoppel as to procedural 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 proposition that he was acting hastily and contrary to the Manual. He was proceeding on the assumption, according 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 between 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 very informal advice — the kind of small-town country-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 suggestion “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 procedural manual or guide or some other source of objective standards of conduct exists and supports an inference of misconduct by a Government employee.

Affirmed.

1 . 42 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 benefits, 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 insurance benefit, and

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

(i) the child referred to in subparagraph (E) is her son, daughter, or legally adopted child, and

(ii) the benefits referred to in such subpar-agraph 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 first month in which any of the following occurs:. .

The application of this section to widows but not to widowers was held unconstitutional in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). Since that time, HEW has by regulation authorized "father’s insurance 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.

3 . 42 U.S.C. § 402(j)(l) provides in pertinent part:

(j)(l) 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 application therefor prior to the end of the twelfth month immediately succeeding such month.

4 . See note 1 supra.

5 . See note 3 supra.

6 . 20 C.F.R. § 404.601 provides:

(a) Claimant defined. The term “claimant” for purposes 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 insurance benefits, or special age 72 payments.

(b) Applicant defined. The term “applicant” for purposes of this subpart refers to the individual who has 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, or entitlement to hospital insurance benefits.

(c) Application defíned. 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 individual 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, requests, or notice; defined. The term “to execute an application” (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 executed 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).

7 . See note 3 supra.