A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual"

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual" [See: http://publicpersonnellaw.blogspot.com/2011/04/doctrine-of-estoppel-not-available-to.html ]

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

"In his New York Public Personnel Law blog, Harvey Randall reviews a case involving one kind of administrative law issue that often darkens an attorney's door: The government has given your client something by mistake and now intends to take it back. But your client, ignorant of the error, has spent the money or made plans or persuaded investors or otherwise reasonably relied on the erroneous decision and doesn't want to pay it back, change plans, return investments, or otherwise reverse course. In the case discussed by Mr. Randall in "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual", a retired city government lawyer finds out seven years after retirement that she has been overpaid almost $1000 per month, and the New York City Employees' Retirement System is going to deduct 25% of her (reduced) pension until it is repaid. She has spent the money and made all sorts of plans that depend on the original monthly payment. Sounds like a job for Equitable Estoppel!

"Not. The opinion from the reviewing court cites to a lot of state precedent, but doesn't really get to the meat of the law here. The City is relying on a N.Y. statute:

"Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid.

"New York City Administrative Code §13-182 (emphasis added).

"According to Mr. Randall:

"Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

"Not just the authority to recoup the overpayment, but the obligation to recoup the overpayment. The court's opinion does not explain the law behind why estoppel fails in this case, but we can look at what is sometimes termed the first maxim of equity: "Aequitas sequiture legem" - "equity follows the law". 30A C.J.S. Equity § 128 (updated March 2011); Story, Joseph. Commentaries on equity jurisprudence: as administered in England and America (Boston, 1836), §64. This maxim means different things in different contexts. For our purposes in this case, equity will not contradict a statute or common law rule on point (subject to a bunch of exceptions that rarely apply against governments and that don't apply here). Here we have a statutory - a legal - requirement that the City get the money back.

"I'm sorry but your client is, ummmm, going to be disappointed."

EMM

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits
Matter of Seiferheld v Kelly, 2011 NY Slip Op 03309, Court of Appeals

New York City police officer James J. Seiferheld retired for alleged disability in 2004 and was awarded accident disability benefits. Seiferheld had applied for disability retirement benefits claiming that he suffered from constant pain in his right shoulder and neck, loss of range of motion in his neck and shoulder, and pain radiating into his arm as the result of a line-of-duty accident. This injury, he contended, prevented him from performing police duty. His application was granted, and he was awarded accident disability retirement on May 12, 2004.

Subsequently the police department received information that Seiferheld was working. It instituted an investigation that ultimately reported that Seiferheld was "performing construction work on a daily basis," which work included “picking up siding, passing it to others, lifting it over his head and nailing materials above his head with both arms extended for some time — all tasks performed without apparent difficulty.” A number of these activities were recorded on videotape.

The police department notified the Police Pension Fund that Seiferheld "may no longer be disabled" and the Pension Fund subsequently reexamined him. During his interview with the Pension Fund’s Medical Board Seiferheld said that he "cannot lift any heavy objects . . . cannot work overhead . . . has no outside work and his major occupation is babysitting his two children."

The Pension Fund's Medical Board concluded that Seiferheld’s condition "has improved dramatically," and recommended disapproval of his retirement application. Ultimately the Pension Fund board of trustees voted, over the dissent of several trustees, to invoke New York City Administrative Code §13-254** entitled "Safeguards on disability retirement," under which a disability pensioner found to be able to work may be returned to city service. Seiferheld was placed on a list of candidates eligible to become police officers, but subsequently he was informed that he was "medically disqualified" for that position "due to the presence of an unauthorized substance, cocaine, in your hair sample."* 

When the Pension Fund's Director of Pension Payroll advised Seiferheld "that your pension benefit will be suspended beginning with the July 2007 payroll," Seiferheld filed an Article 78 petition seeking to annul the determination to suspend his pension benefits.

Supreme Court denied the application; the Appellate Division reversed, annulling the suspension of benefits; the Court of Appeals “reluctantly” affirmed the Appellate Division’s ruling.

Characterizing New York City Administrative Code §13-254 as “complicated,” the Court of Appeals explained, in a “simplified summary,” that a “disability pensioner found to be able to work is put on a civil service list, and his or her pension is reduced based on outside earnings and the amount ‘earned . . . or earnable’ in any City job that is offered.”

Noting that the application of the statute to this case presents something of a puzzle, because although Seiferheld was put on a civil service list, he was not, and evidently could not be, offered a job because of his cocaine us, the court commented that “if the statute is mechanically applied, [Seiferheld] might actually benefit from using cocaine, because he presumably does not want to be offered a City job; he wants to remain retired and receive his pension.

Supreme Court, in a thoughtful opinion, correctly concluded that this anomaly could not have been intended by the statute's authors.

The Appellate Division, however, reversed Supreme Court's order, without discussing Supreme Court's analysis of the statute, because the suspension of Seiferheld's benefits "was not directed by the Board of Trustees" of the Pension Fund.

The Court of Appeals concluded that the Appellate Division was correct as it is “clear from a reading of the safeguards statute that action under that statute must be taken by the board.” The court explained that  “However well justified a reduction or termination of benefits may be … the board of trustees has to do it.”

The majority*** of the Court of Appeals, at the conclusion of its opinion, wrote:

“Though [Seiferheld] is entitled to prevail here, the case as a whole is very troubling. It seems from the record that [Seiferheld] either has received or is in a position to claim accident disability benefits for the last seven years, and counting. Yet any reader of this record must have serious doubt that he was ever really disabled. Whether any of the benefits paid to him may be recouped is a subject on which we express no opinion. But we do express the hope that the Pension Fund's board of trustees will generally act to protect the Fund and the public with more efficiency than it has displayed in this case.”

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03309.htm 

* General Municipal Law §207-a5 provides “The appropriate municipal or fire district officials may transfer such a fireman to a position in the same or another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the fireman shall consent thereto.” while General Municipal Law §207-c4 provides “The appropriate municipal officials may transfer such a policeman to a position in another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the policeman shall consent thereto.” 

** The "safeguards" statute, New York City Administrative Code § 13-254, under which the Pension Fund tried to bring Seiferheld back to work, provides, in relevant part: "Once each year the board [of trustees of the Police Pension Fund] may . . . require any disability pensioner, under the minimum age or period for service retirement elected by him or her, to undergo medical examination. . . . Upon the completion of such examination the medical board shall report and certify to the board whether such beneficiary is or is not totally or partially incapacitated physically or mentally and whether he or she is or is not engaged in or able to engage in a gainful occupation. If the board concurs in a report by the medical board that such beneficiary is able to engage in a gainful occupation, he or she [sic] shall certify the name of such beneficiary to the appropriate civil service commission . . . and such commission shall place his or her name as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which he or she is stated to be qualified. Should such beneficiary be engaged in a gainful occupation, or should he or she be offered city-service as a result of the placing of his or her name on a civil service list, such board shall reduce the amount of his or her disability pension . . . if any, to an amount which, when added to that then earned by him or her, or earnable by him or her in city-service so offered him or her, shall not exceed the current maximum salary for the title next higher than that held by him or her when he or she was retired." 

*** Justice Pigott, in his dissent, said: “In my view, the Appellate Division erred in finding that the Board of Trustees had not considered what action should be taken with respect to revocation of the Accident Disability Retirement benefits. This error, which the majority of this Court repeats, rests on an assumption that the Board's final determination had merely been that Seiferheld should be returned to work as a police officer. This leaves out a crucial part of the Board's ruling. The Board's final determination was that Seiferheld was not disabled, should not receive disability benefits, and should be returned to work” and would “reverse, deny the petition and dismiss the article 78 proceeding.” 
  

Statute of limitations for judicial review of a final administrative decision neither tolled nor extended by filing a request for reconsiderationll the statute of limitations for filing a timely judicial challenge to the determination

Statute of limitations for judicial review of a final administrative decision neither tolled nor extended by filing a request for reconsideration

Matter of Chapman v New York State Teachers' Retirement Sys., 2011 NY Slip Op 02994, Appellate Division, Third Department

Cheryl Hogg-Chapman, a former school counselor, applied for disability retirement benefits after falling on the stairs at work.

Following a review of Hogg-Chapman's medical records, the New York State Teachers’ Retirement System’s Medical Board concluded that there was no basis upon which to grant her request for disability retirement benefits. Hogg-Chapman was advised of the Medical Board’s determination and ultimately TRS informed petitioner it would be recommending such to respondent. Thereafter, NYSTRS notified Hogg-Chapman that it accepted the Medical Board's recommendation, and her application for disability retirement benefits was denied.

Hogg-Chapman filed an Article 78 petition challenging NYSTRS’ August 2008 determination. Supreme Court dismissed her petition, finding that the challenge was barred by the applicable four-month statute of limitations.

The Appellate Division affirmed the lower court’s ruling.

The court pointed out that §217(1) of the Civil Practice Law and Rules requires that "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner."

Explaining that "an administrative determination becomes final and binding when it definitively impacts and aggrieves the party seeking judicial review," the Appellate Division said that there is no dispute that NYSTRS notified Hogg-Chapman in August 2008 that her application for disability retirement benefits was denied. Although Hogg-Chapman sent the Medical Board additional medical evidence and requested that it reconsider its recommendation, this did not serve to toll the statute of limitations period or make NYSTRS’ determination any less final.

Thus, said the court, as Hogg-Chapman’s Article 78 petition was filed more than four months after NYSTRS rendered its determination, Supreme Court properly dismissed the petition as time barred.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02994.htm

Proof of filing a timely application for disability benefits critical

Proof of filing a timely application for disability benefits critical

Jarek v McCall, 268 A.D.2d 654

It may prove critical to have proof that an application was filed with an agency as the Jarek case demonstrates.

John Jarek, a school custodian suffered a heart attack on January 31, 1993. Unable to work, Jarek resigned from his position on March 4, 1993.

Jarek filed an application for ordinary disability retirement with the New York State Employees’ Retirement System [ERS] within 90 days of his last day of service.

The application form was notarized and sent by first class mail to ERS. Not having heard from ERS, some six months later Jarek asked ERS to advise him of the status of his application. ERS told him that it never received his application form.

Ultimately, ERS denied Jarek ordinary disability retirement benefits because he had not filed a timely application form for benefits.*

Although an ERS hearing officer recommended that Jarek’s application be accepted since he had mailed it in a timely manner and through no fault of his own it had not be received by ERS, the Comptroller sustained ERS’s initial decision denying Jarek benefits. Jarek appealed.

Did the fact that Jarek mailed his application in a timely manner qualify him for benefits? The Appellate Division said because Jarek could not prove he had filed his application within 90 days of his last day of service, the Comptroller’s determination must be sustained.

The court pointed out that in other situations it had held that simply mailing an application for benefits does not constitute filing of the required application form. According to the ruling, filing for the purposes of establishing eligibility for benefits “only occurs upon actual delivery to and receipt” by ERS.

Thus, if the application is mailed, some means of demonstrating that the application was received by the System is critical to an individual’s ability to prove that his or her application for benefits was filed within the time period required.

Upholding the Comptroller’s decision that Jarek’s “act of mailing his application for ordinary disability retirement benefits” was not the equivalent of filing such an application, the Appellate Division said that this determination was reasonable and thus must be sustained under the circumstances.

The court said that “[w]hile the result is harsh, it is one the law compels.

The Appellate Division noted that Jarek claimed that he “did everything within his power to meet the 90-day deadline ....”

However, said the court, Jarek “failed to use available mailing methods which would have provided him with notice of [ERS’s] receipt (or lack thereof) of his application and further waited over six months to check on its status.”

It is clearly prudent to make certain that the individual can prove that he or she timely filed such an application.

Had Jarek used certified or registered mail -- or delivered his application in person and obtained a receipt -- he would have had a better chance of prevailing even if ERS had lost his application after receiving it. 

* Sections 62 and 63 of the Retirement and Social Security Law require a member to file his or her application for ordinary disability retirement benefits within 90 days of his or her last day of service. Accordingly, Jarek had to file his application within 90 days of March 4, 1993.