Ewing v. Risher

• Decision Date: 12 August 1949
• Docket Number: No. 3869.,3869.
• Parties: EWING, Federal Security Adm'r v. RISHER.
• Court: U.S. Court of Appeals — Tenth Circuit

176 F.2d 641 (1949)

EWING, Federal Security Adm'r v. RISHER.

No. 3869.

United States Court of Appeals Tenth Circuit.

August 12, 1949.

Leonard B. Zeisler, Washington, D. C. (H. G. Morison, Assistant Attorney General; Robert E. Shelton, United States Attorney, Oklahoma City, Okl., Edward H. Hickey, Special Assistant to the Attorney General, and Joseph B. McGrath, Attorney, Department of Justice, Washington, D. C., on the brief), for appellant.

Ralph B. Simcoe, Stillwater, Okl., for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

Appellee, Mary G. Risher, the widow of Howard C. Risher, deceased, instituted this action to recover primary insurance benefits and widow's insurance benefits under the provisions of the Social Security Act, 42 U.S.C.A. § 402.

The undisputed evidence establishes that on June 24, 1941, Howard C. Risher filed an application for primary insurance benefits. The Bureau of Old-Age and Survivors Insurance of the Social Security Board, now the Social Security Administration, disallowed the claim on August 9, 1941, on the ground that his wage record showed no wage reportings by his employer and held that he was not a fully insured individual. He was notified of this determination on August 12, 1941. The notification informed him of his right to request either that his claim be reconsidered by the Bureau of Old-Age and Survivors Insurance or that a hearing be held on the same by a Referee of the Social Security Board, and that the request for reconsideration or hearing should be made promptly and not later than six months from the date of the letter.

On March 24, 1942, Risher filed a request for reconsideration and was advised that the case would be reconsidered. No further action was taken by the Bureau until sometime in June, 1946, when the Bureau reversed its original determination, now holding that an employer-employee relationship existed between Risher and his employer and that he was a fully insured individual. In the meantime, Risher had died on September 12, 1942, and his widow, the appellee, had reached the age of 65 in February, 1944. Thereafter, on July 9, 1946, she filed her application for a lump-sum payment of death benefits and for widow's insurance benefits from February, 1944, the date on which she became 65 years of age. Her claim for a lump-sum payment of death benefits was denied on the ground that the claim was not filed within two years of the date of her husband's death, and her claim for widow's insurance benefits was allowed only for the period of time beginning April, 1946, three months previous to the month in which the application was filed, on the ground that her right for such benefits in preceding months was lost by her failure to file a timely application therefor.

Appellee thereupon instituted this action in the United States District Court for the Western District of Oklahoma, in which she asked judgment for a lump-sum award in the amount of $190.68, and widow's insurance benefits in the amount of $619.84, or a total sum of $810.52. Judgment was entered in her favor for this amount and the Administrator has appealed.

The correctness of the judgment requires a consideration of the following sections of the Social Security Act, 42 U. S.C.A. §§ 402(d) and 402(g).¹

The Administrator took the position in the court below, as he does here, that appellee's failure to file her claim within two years of the death of her husband completely extinguished her right to the lumpsum benefits and that her claim for widow's insurance benefits was limited to the three-month period preceding the month in which she filed her application. For reason which presently shall appear, we think these contentions are correct and require a reversal of the judgment.

A creative right is one which is conferred by statute as distinguished from one which stems from the common law. The nature of such a right, its quality and character, are dependent upon the statute creating it. The rule is well settled that where a statute creates a right, such as the one in this case, unknown to the common law and limits the time within which the right must be asserted, the limitation defines and controls the right and the right ceases to exist if not asserted within the time fixed in the statute therefor. In Matheny v. Porter, 10 Cir., 158 F.2d 478, 479, in speaking of a similar statutory right, this court said:

"It creates the right of action and fixes the time within which a suit for the enforcement of the right must be commenced. It is a statute of creation, and when the period fixed by its terms has run, the substantive right and the corresponding liability end. Not only is the remedy no longer available, but the right of action itself is extinguished. The commencement of the action within the time is an indispensable condition of the liability."²

The language of the pertinent part of Section 402(g) is clear, positive, and mandatory. It provides that: "No payment shall be made * * * unless application therefor shall have been filed * * * prior to the expiration of two years after the date of the death of such insured individual."

Filing the application within the statutory time was a necessary incident of the right conferred by the act, and failing to comply therewith extinguished appellee's right to the lump-sum benefits. It is true that the statute is a remedial one and should be liberally administered to effectuate the congressional purpose, but the congressional purpose must be ascertained from the clear language of the act. While a liberal interpretation should be indulged, such a policy does not warrant adopting a construction inconsistent with the clear wording of the act in order to prevent loss to a claimant resulting from failure to file an application as required by the act.

While not decisive nor fundamental to the issues presented, the claim that appellee was misled to her detriment by the Bureau's action in disallowing the husband's claim on the ground that he was not an employee has no legal standing. Appellee knew that her right as his widow to these benefits depended upon his employee status. She also knew at all times that he claimed to be such an employee and that at the time of his death he had an appeal pending challenging the finding that he was not an employee. In law she was bound to know that she must file her application within two years, if she intended to assert a claim to these benefits as his widow founded on the ground that he was an employee. Knowing that her right to these benefits depended upon a reversal of the Bureau's original order and upon an entry of an order finding that her husband was an employee, she was not misled by the pending proceedings in review. The most that can be said is that she misconstrued the legal effect of the same upon her duty to file a timely application. But such misconstruction could not extend her right which expired and ceased to exist two years after her husband's death, when no application for the benefits had been filed as required by the statute.

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