356 F.2d 1 (2nd Cir. 1966), 17, Cappadora v. Celebrezze

Docket Nº:17, 29647.
Citation:356 F.2d 1
Party Name:Eleanor CAPPADORA, as Administratrix of the Estate of Agnes Penzner, deceased, and as General Guardian of the person, and property of Susan Jonica Penzner and Penny Dawn Penzner, infants, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellee.
Case Date:January 28, 1966
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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356 F.2d 1 (2nd Cir. 1966)

Eleanor CAPPADORA, as Administratrix of the Estate of Agnes Penzner, deceased, and as General Guardian of the person, and property of Susan Jonica Penzner and Penny Dawn Penzner, infants, Plaintiff-Appellant,


Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 17, 29647.

United States Court of Appeals, Second Circuit.

January 28, 1966

Submitted Oct. 18, 1965.

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Barry, Treanor, Shandell & Zachary, New York City (Edward A. Shandell, Roger P. McTiernan, New York City, of counsel), for plaintiff-appellant.

John W. Douglas, Asst. Atty. Gen., Joseph P. Hoey, U.S. Atty., Morton Hollander, Max Wild, Washington, D.C., Attorneys, for defendant-appellee.

Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge:

This action, by the administratrix of the estate of Agnes Penzner and the guardian of her children, was brought in the District Court for the Eastern District of New York under the Social Security Act, 42 U.S.C. § 405(g), to review a decision of the Secretary of Health, Education and Welfare refusing to reconsider or reopen a 1954 disallowance of a claim for mother's and children's insurance benefits. From an order granting the Secretary's motion for summary judgment, the plaintiff appeals.

After the death of Lou Penzner on December 15, 1953, Agnes filed with the Social Security Administration a claim for mother's and children's insurance benefits, 42 U.S.C. § 402(d) and (g). The application stated that Lou and Agnes had been married by a justice of the peace in Reno, Nevada, on August 1, 1938, and had remained married until his death; that although Lou had been previously wedded to Esther Penzner, this marriage was terminated by a divorce in Brooklyn, New York, on April 30, 1946; and that two children had been born to Lou and Agnes on December 29, 1942, and May 8, 1946. Despite requests for supporting evidence from the Administration, Agnes failed to produce proof of her own marriage or of Lou's divorce from Esther, and no birth certificates of the children were presented. After filing her application, Agnes changed her story and claimed that Esther's divorce had taken place in Reno and occurred prior to her own marriage. However, a check of the records there from August 1937 through April 1954 disclosed neither the divorce nor the marriage, and there likewise was no evidence of a divorce in Brooklyn.

On June 11, 1954, the Bureau of Old-Age and Survivors Insurance wrote Agnes that her claim was disallowed for lack of proof; that if she did not agree with that determination, she might request reconsideration or a hearing before a referee; that any such request 'should be made promptly, and must be filed within 6 months'; and that if she had any questions, she should get in touch with the district office of the Administration. In October 1954, Agnes appeared at the Brooklyn district office and in November a Mr. Carlson, a friend of hers, telephoned. Both were informed of the proofs needed to support the claim

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but no evidence was submitted and no written request for reconsideration or a hearing was filed. Nothing more was heard until October 3, 1962, when, after Agnes' death, her administratrix and guardian of the children, having filed an application for children's benefits on the earnings record of Agnes, stated that she wished to 'appeal' the adverse 1954 determination with respect to Lou and to have a hearing to set it aside. In substance her application was based on the contention that because of the Administration's failure to make clear to Agnes that a request for reconsideration or a hearing had to be in writing, the oral communications of October and November 1954 indicated of dissatisfaction with the determination and should be deemed a timely petition to that end. The application can be considered in effect an appeal to the Secretary to grant either a mandatory hearing on the merits under § 405(b), see fn. 2, or a discretionary reopening of the 1954 determination under the Administration's regulations. 1

In August 1963, the Administration, after due notice, held a hearing on the question whether there was a basis for giving further consideration to Agnes' claim. The Hearing Examiner found there was not, the Appeals Council denied a request for review, and this action was commenced in the district court.


We meet at the outset the Secretary's contention, rejected somewhat elliptically by Judge Dooling, that the court was without jurisdiction to entertain the suit. With respect to judicial review of the Secretary's decisions, the Social Security Act, 42 U.S.C. § 405, provides:

(g) Review.

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. * * * The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. * * *

(h) Finality of Secretary's decision.

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. 2

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The Secretary argues that the phrase 'final decision * * * after a hearing' in § 405(g) refers to a determination of the merits of a claim after a hearing required by § 405(b), see fn. 2; that the provision of § 405(g) for judicial review does not apply to a decision declining to reconsider or to reopen a prior determination, made in this case 'after a hearing' only because the Secretary in his discretion chose to adopt that procedure; and that hence review is precluded by § 405(h).

On a strictly literal reading, § 405(g) could be interpreted as applying to any final decision of the Secretary that was handed down after a hearing, albeit a hearing not required by the statute. Such an interpretation, however, would be unnatural and unsound, and scarcely consistent with the wise counsel to reject 'the tyranny of literalness' and remember that 'a restrictive meaning for what appear to be plain words may be indicated by the Act as a whole.' United States v. Witkovich, 353 U.S. 194, 199, 77 S.Ct. 779, 782, 1 L.Ed.2d 765 (1957). In enacting the Social Security Act, Congress recognized that the agency established to carry out such a vast scheme of public insurance would be confronted with a volume of applications probably unparalleled in federal administration; 3 it must have assumed also that the interests of the agency and the claimant would in most cases coincide and that the Social Security Administration would be as concerned as the applicant in the payment of a proper claim. Accordingly, in addition to wide-ranging powers suitable to effective achievement of the assigned task, the agency was authorized to make an initial determination of each claim ex parte and, in contrast to the many requirements of notice and hearing in the usual regulatory statute, was compelled to hold a hearing in only one instance-- where an adverse ex parte determination had been made and timely request for a hearing was filed, 42 U.S.C. § 405(b). In this context the reasonable reading of § 405(g) is that it was intended to apply to a final decision rendered after a hearing thus made mandatory, not to a decision which could lawfully have been made without any hearing at all and in that event plainly would not have come under the terms of the section. No sufficient reason appears why the Congress that adopted the Social Security Act would have wished § 405(g) to apply when the agency gave an applicant the benefit of a hearing and an administrative appeal not required by the statute, but not when it had done less to assure a fair...

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