Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1988)

No. 88-15409.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS, Jr.,^****  District Judge.

MEMORANDUM^*** 

R.F. Vernon, pro se, appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services ("the Secretary") in Vernon's action for review of the Secretary's final decision denying him Social Security disability benefits. Vernon argues that the district court denied him the opportunity to conduct adequate discovery. He also argues that the court erred in not tolling the limitations period for filing this action based upon equitable considerations or estoppel. We affirm.

* Vernon filed an application for supplemental security income benefits under the Social Security Act, 42 U.S.C. § 401 et. seq., in December, 1982. On April 18, 1984, an administrative law judge issued a decision finding Vernon ineligible for benefits for the period of December 1982 through July 1983 due to excess financial resources. Vernon subsequently requested review of the administrative law judge's decision, but the Appeals Council of the Social Security Administration's Office of Hearings and Appeals denied the request for review. The Appeals Council mailed him a copy of the notice of denial and informed him of his right to file a civil action seeking review of the Secretary's decision in the district court within sixty days from receipt of the notice. It is undisputed that he received the notice on or before August 31, 1984.

Vernon thereafter commenced an action in the United States District Court for the Northern District of California on November 2, 1984. In an order issued on May 29, 1985, the district court dismissed Vernon's complaint for lack of jurisdiction due to Vernon's failure to file within the sixty day time limit set forth in 42 U.S.C. § 405(g). However, we reversed the district court's dismissal in an opinion filed on March 3, 1987, 811 F.2d 1274 (9th Cir. 1987), citing the subsequently decided case of Bowen v. City of New York, 476 U.S. 467 (1986), which held that the 60-day filing period specified by 42 U.S.C. § 405(g) was not jurisdictional and was subject to equitable tolling. We remanded the case to the district court for a determination as to whether or not a basis for equitably tolling the statute of limitations had been established. We issued an order and amended opinion on May 4, 1987, specifying that, on remand, the affirmative defense of statute of limitations could be tested on a motion for summary judgment or after a responsive pleading had been filed.

The district court entered a judgment on July 27, 1988, granting the Secretary's motion for summary judgment and again dismissing Vernon's complaint, based upon a finding that no basis for tolling the 60-day statutory limit had been established.

Vernon filed a notice of appeal on September 26, 1988.

II

Vernon argues that the district court denied him the opportunity to conduct adequate discovery. We disagree. The trial court "has wide latitude in controlling discovery, and its rulings will not be overturned in absence of a clear abuse of discretion." Canadian American Oil Co. v. Union Oil Co. of California, 577 F.2d 468, 473 (9th Cir.), cert. denied, 439 U.S. 912 (1978); see also Gaines v. Haughton, 645 F.2d 761, 769 n. 15 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982). The record indicates that Vernon was given ample opportunity to conduct discovery, particularly through the use of interrogatories. In fact, the court granted Vernon additional time to conduct discovery on the issue of affirmative misconduct.

III

Vernon also argues that the district court erred in not tolling the 60-day limitations period based upon equitable considerations or estoppel. Again, we disagree.

Vernon's argument rests on his allegation that on the afternoon of October 29, 1984--the final day for filing within the Sec. 405(g) time limit--a Social Security Administration ("SSA") employee assured him that the federal judge would grant him an extension. Vernon claims that he relied on this statement in waiting until November 2, 1984 to file his complaint.

The district court correctly held that to estop the federal government from insisting upon compliance with Sec. 405(g) Vernon must establish affirmative misconduct by the government. See Schweiker v. Hansen, 450 U.S. 785, 788-89 (1981); Morgan v. Heckler, 779 F.2d 544 (9th Cir. 1985); cf. Heckler v. Community Health Services, 467 U.S. 51, 60 (1984) ("it is well settled that the Government may not be estopped on the same terms as any other litigant"). As we held in Morgan:

[t]he general requirements for estoppel of a private party are neither conclusive nor exhaustive when one seeks to bind the government. Beyond the four traditional elements of estoppel, estoppel against the government must rest upon affirmative misconduct going beyond mere negligence. Furthermore, estoppel will apply only where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.

779 F.2d at 545 (citations omitted).

However, as the district court stated, " [h]ere there was no affirmative conduct, merely incomplete information proffered, or, at most, inadvertent error." Consequently, the Secretary is not estopped.

This is not one of the "rare" cases, such as Bowen v. City of New York, "in which the equities of tolling are compelling." 476 U.S. 467, 480-81 (1986). Vernon has offered no evidence other than his own statement to establish that the alleged incident ever occurred. He also offers no justification for why he would have relied on a SSA employee's assurance regarding the conduct of the district court. Further, he has consistently disregarded filing dates throughout this litigation.

Therefore, the district court's decision is AFFIRMED.