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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
delete "828 F.
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[NOT FOR PUBLICATION]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.
______________
___________________
__________________
__________________
Per Curiam.
__________
Claimant Norma
A November
1984 application had alleged the same impairment and the same
disability
onset date.
the
reconsideration
reconsidered
denial became
See 20 C.F.R.
___
404.921.
the earlier
elapsed
application.
between
application and
the
stage.
the final
result,
the
agency determination.
to reopen
Because
years had
adverse
the filing
As
notification
of the current
on
the
first
application, the
or clear
(c)(8) to
error
under 20
warrant reopening
C.F.R.
404.988(c)(1)
or
which
42 U.S.C.
423(b); 20
404.621(a)(1)(i).
-2-
to June 1989
and raised
reopening refusal.
been
a de
__
a constitutional
Claimant
facto reopening
_____
challenge to
there had
1984 application.1
the
The
the
the constitutional
Gilbert's motion
a dismissal
de novo.
for lack
See Shea
___ ____
matter of
agency
matter
v. Rev-Lyn Contracting
____________________
of subject
discretion and
Reopening decisions
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.
-3-
subject
to
colorable
U.S. at
(1st
judicial review,
constitutional claim is
exception exists
presented.
292 (6th
Secretary of HHS,
________________
implicate
cases
colorable
if a
Sanders, 430
_______
social
but an
792, 795
under
constitutional
circumstances
issue.").
that
Gilbert
argues that
pro
___
the
se
__
on
first
application
consequences of reapplying
further
did
not
administrative review,
and
explain
the
than seeking
therefore violated
her
(9th Cir.
on Gonzalez v. Sullivan,
________
________
1990),
which held
that the
____________________
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)).
_____
-4-
notice
Gonzalez
received
violated
due
process.4
In
The Gonzalez
________
court found
that
notice constitutionally
determination is final.
We conclude that the
notice violates appellant's fifth amendment right
to due process.
Id.
___
Other courts have recognized that the
form
used in
See, e.g.,
___ ____
Day v.
___
1994); Aponte
______
1993);
Gonzalez poses
________
particular notice
serious due
process concerns.
v. Sullivan,
________
823 F. Supp.
277, 282
Cir.
(E.D.Pa.
(N.D.N.Y. 1989);
Butland v.
_______
Bowen,
_____
673 F.
Supp. 638,
641
Heckler, 616 F.
_______
____________________
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.
-5-
(W.D.Mo. 1984);
see also
___ ____
Burks-Marshall v. Shalala,
______________
_______
7 F.3d
notice is
not
available, but
the Secretary
concedes that
in
Gonzalez.
________
as that rejected
Secretary
process
claim
is
argues,
not
however,
colorable
that
because
Gilbert's
due
she
not
has
in
reliance on
discussed in
defective
facie
_____
Gonzalez, but we
________
notice is
showing of a
reliance,
the
the notice.
a core
The question
is
not
fairly
on the
claimant's prima
_____
injury
was not
"Without such
traceable
to
the
challenged
16762,
action."
*2 (10th
Cir. Jan.
detrimentally relied on an
17, 1995).
Only
claimants who
____________________
5.
23 F.3d
at 1066;
Delyria v.
_______
see also
___ ____
Shalala, 856
_______
Burks-Marshall, 7
______________
F. Supp.
1432, 1443
F.3d at
(D.Or.
F. Supp. at
____
circumstances
show
that
exception to
detrimental
untimely notice
reliance
of appeal
on judicial
must
statement
or
(justifiable reliance
essential
element
misrepresentation).
Thus,
constitutional claim,
of
the
tort
to succeed on
Gilbert must
of
negligent
the merits of
her
relied on
assigned essentially
objective
F.3d
criteria by which
established
information:
denial
at 1066,
to assess
injury
whether or not
because
those
of
reliance
claimants who
notice, reapplied
a claimant
upon
received
(rather than
had
erroneous
an inadequate
appealing the
prior
agree,
in the
-7-
presented
Supp. at 1439-40.
here, that
the
must
undisputed historical
Gilbert
was
application; she
denied benefits
on
reliance in this
her prior
received an admittedly
facts
pro
___
se
__
defective Gonzalez________
new
application
testified
denial.
that
That
she did
erroneous
to one
how
She
to appeal
advice.
Gilbert
year and
years of benefits.
See
___
later
the prior
instead chose
n.4,
supra.
_____
received
retroactive
suffered the
loss of
reopening.
redetermination,
reduced
not know
Gilbert did
requesting
to
on the
Upon
benefits
almost five
both reliance
Secretary's refusal to
reopen violated
claimant's
the 1990
payment of
application
had
been
claimant's
first,
clearly be
limited
423(b); 20 C.F.R.
to the application.
42 U.S.C.
interposed a meritorious
constitutional claim,
-8-
be
See,
___
1271-72
implicated
application date
by
administrative
the
onset
for retroactive
date
claimed
in
(W.D.N.C.
1989)
claimant's
the
incapacity
that disability
first
718 F. Supp.
(constitutional
mental
appeal required
benefits
interest
to
pursue
benefits be
859
F.2d 319,
322-24
(4th
Cir. 1988)
too skimpy and benefits must be calculated from the April 30,
-9-
III
III
___
Ordinarily,
In the
where
complete,
the
where the
is
for
Secretary's
all
concession
notices,
and
practical
where
largely legal
regarding
Gilbert's
question
purposes
as to the content
of this
reliance
the
of
is
whether the
Secretary's
397, 399
(1st
Cir. 1988); King v. Commissioner, 458 F.2d 245, 249 (6th Cir.
____
____________
1972).
We
conclude
that
the
Secretary
could
not
that
claimant
benefits for
the
should
have
been
period commencing
judgment
remanded
with
instructions
to
awarded
April
30, 1984.
is reversed and
return
disability
the
The
the case is
case
to
the
-10-