Nagle v. Acton-Boxborough Regional School District

United States Court of Appeals
For the First Circuit

No. 08-2374

KATHLEEN NAGLE,

Plaintiff, Appellant,

v.

ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Boudin, Hansen,* and Lipez,
Circuit Judges.

Jason R. Powalisz with whom Mark A. Hickernell, Alan J.
McDonald and McDonald, Lamond & Canzoneri were on brief for
appellant.
Deidre Brennan Regan with whom Deborah I. Ecker and Brody,
Hardoon, Perkins & Kesten were on brief for appellee.

July 30, 2009

*
Of the Eighth Circuit, sitting by designation.
 BOUDIN, Circuit Judge. This case presents the question

whether equitable estoppel may be applied against a government

employer based upon the employer’s oral assurances to the employee

of coverage under the Family Medical Leave Act ("FMLA"), 29 U.S.C.

§ 2601 et seq. (2006). The employer denies both the alleged

assurances and the claim that the employee was terminated for

taking leave; but because the employee's case was dismissed on

summary judgment, the denials are of no consequence and we assume

arguendo the latter's version of events. Ruiz-Rosa v. Rullan, 485

F.3d 150, 155 (1st Cir. 2007).

At the time of the events, Kathleen Nagle had been

working since the year 2000 as a part time employee in the position

of school monitor for the Acton-Boxborough Regional School District

in Massachusetts. On January 12, 2004, Nagle requested leave under

the FMLA in order to tend to her ailing husband. The FMLA entitles

eligible employees to take twelve weeks of unpaid leave during any

twelve-month period to care for a family member who is seriously

ill. See Engelhardt v. S.P. Richards Co., Inc., 472 F.3d 1, 3 (1st

Cir. 2006).

To be eligible for FMLA leave, an employee must have

worked at least 1,250 hours in the 12-month period before taking

leave. 29 U.S.C. § 2611(2). Nagle was not eligible; in the 12

months prior to her request, she had worked only 554 hours.

However, she asserts that George Frost, the district’s deputy

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superintendent, told her that she could take FMLA leave. Frost

says he told Nagle she was not eligible but could take non-FMLA

leave with continued health insurance, but, on the motion for

summary judgment against her, her version governs. Nagle took

leave until April 2004, writing Frost in March to thank him for

allowing her to take FMLA leave; it appears no answer was ever made

to the letter.

In February 2005, Nagle took several days off to care for

her husband and she says that the principal’s assistant at her

school suggested to Nagle that she take family medical leave.

Nagle requested FMLA leave in a letter dated February 18, 2005, but

does not claim to have received a reply, and then took off eight

weeks of leave. In March 2005, Nagle says she thanked Frost for

granting her FMLA leave and that he never explained that she was

not entitled to FMLA leave. Frost disputes this as well; again,

Nagle's account must be assumed.

Once Nagle returned to work in April 2005, she says she

met again with Frost who told her that additional FMLA leave was

available if necessary, and after her husband reentered the

hospital, she again in early May 2005 took what she believed to be

FMLA leave. Nagle’s husband died at the beginning of June. She

says that she was told not to worry about rushing to return and

that Frost told her that she had "nothing to worry about." No

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writing from Frost confirms these assurances, but we assume that

they occurred.

The school year ended in June 2005. On July 12, 2005,

Nagle's employment with the school district was terminated. Nagle

concluded that this was because she had taken leave and in August

2007, Nagle filed suit against the school district for violating

the FMLA. 29 U.S.C. § 2615(a)(1). The school district countered

that Nagle was not eligible for FMLA leave and that her job ended

because the district had completed construction work on a new

building and no longer needed monitors in the parking lots.

In due course, the school district moved for summary

judgment on the ground that Nagle was not eligible for FMLA leave

and as a result had no claim. She responded that the school

district was estopped from relying on her lack of eligibility

because of Frost's alleged assurances and that it had taken her

leave into account in terminating her position. After further

briefing the district court refused to apply estoppel against the

school district and granted summary judgment in its favor.

Nagle now appeals, and the central issue--whether

equitable estoppel is available in the present circumstances--

presents a legal issue reviewed de novo. Southex Exhibitions, Inc.

v. Rhode Island Builders Ass'n, Inc., 279 F.3d 94, 104 (1st Cir.

2002). In urging estoppel, Nagel relies principally on federal

precedent and neither side argues that state law should apply.

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Because this position is plausible and uncontested and because it

might not matter anyway, we accept the premise without endorsing

it. Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 n.4 (2d

Cir. 1998).1

Where an employee properly takes FMLA leave, the employee

cannot be discharged for exercising a right provided by the

statute, but can still be discharged for independent reasons.

Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804-05 (7th Cir.

2001). The governing regulations provide that an employer "cannot

use the taking of FMLA leave as a negative factor in [an]

employment action[]." 29 C.F.R. § 825.220(a)(1), (c) (2005). On

this appeal, we assume arguendo that Nagle's taking of leave did

play some role in her termination.

Nagle does not claim that she was in fact eligible for

FMLA leave, but she argues that the school district is estopped

from denying coverage. The contours of equitable estoppel

doctrine, where directed against a private party, are conventional.

The doctrine seeks to prevent injustice when an individual

detrimentally and predictably relies on the misrepresentation of

1
The claim is made under a federal statute and could be
affected by federal regulations, so federal estoppel law could well
govern in the interests of uniform application. Further,
Massachusetts precedent, like federal precedent, is at best
hesitant in applying estoppel against governmental units. See,
e.g., Morton St. LLC v. Sheriff of Suffolk County, 903 N.E.2d 194,
199-200 (Mass. 2009); Holahan v. City of Medford, 474 N.E.2d 1117,
1119-20 (Mass. 1985); Phipps Prods. Corp. v. Mass. Bay Transp.
Auth., 443 N.E.2d 115, 118-19 (Mass. 1982).

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another. Mimiya Hospital, Inc. SNF v. U.S. Department of Health &

Human Services sums up the doctrine thusly:

[A] party seeking to assert estoppel must
demonstrate that (1) the party to be estopped
made a "definite misrepresentation of fact to
another person having reason to believe that
the other [would] rely upon it"; (2) the party
seeking estoppel relied on the
misrepresentations to its detriment; and (3)
the "reliance [was] reasonable in that the
party claiming the estoppel did not know nor
should it have known that its adversary's
conduct was misleading."

331 F.3d 178, 182 (1st Cir. 2003) (alterations in original)
(citation omitted).

If the school district were a private employer, Nagle

would be entitled to a trial as to whether Frost did misrepresent

matters, as to her reliance and on the reasonableness of any such

reliance--the last being a "mixed" question that is at bottom

normative but is regularly given to a jury where the matter is

reasonably debatable. See Grande v. St. Paul Fire & Marine Ins.

Co., 436 F.3d 277, 283 (1st Cir. 2006).

But under federal precedent, governments in the past have

not been subject to estoppel or, more recently, have been held not

subject to estoppel, save exceptional situations that we have

called "hen's-teeth rare," Costa v. INS, 233 F.3d 31, 38 (1st Cir.

2000).2 Various reasons have been given for excepting governments,

2
See, e.g., Office of Personnel Mgmt. v. Richmond, 496 U.S.
414, 419-23 (1990); Schweiker v. Hansen, 450 U.S. 785, 788 (1981);
Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917);

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e.g., Heckler v. Cmty. Health Serv., 467 U.S. 51, 65-66 (1984),

but--like many such limitations in favor of the state--the

explanation mingles history, doctrine (e.g., sovereign immunity;

agency), and practical concerns. Cf. Kawananakoa v. Polyblank, 205

U.S. 349, 353 (1907) (Holmes, J.).

As with sovereign immunity, Congress has made exceptions

but, in the case of estoppel, the exceptions are far narrower and

more sporadic than the categorical limitations in the Federal Tort

Claims Act, 28 U.S.C. § 2680 (2006).3 Possibly, the problem is

harder to solve: often, a claim of honest reliance is on one side

of the scale and, on the other, justified concerns to assure

enforcement of the law, about the lack of authority by officials to

vary it, and about the prospect of spurious law suits.

The Supreme Court has been very cautious in language, and

even more cautious in practice, about extending estoppel to the

government. It has said, but only in a dictum, that "affirmative

misconduct" by the government can lead to estoppel, Heckler, 467

U.S. at 60, but most estoppel claims involve misstatements so the

Mimiya Hosp., 331 F.3d at 183 n.1; Phelps v. Fed. Emergency Mgmt.
Agency, 785 F.2d 13, 16-17 (1st Cir. 1986); United States v.
Ven-Fuel, Inc., 758 F.2d 741, 761 (1st Cir. 1985); 14 Wright,
Miller & Cooper, Federal Practice & Procedure § 3652, at 245 & n.26
(3d ed. 1998 & Supp. 2009).
3
See, e.g., Federal Trade Commission Act, 15 U.S.C. § 57b-4(b)
(2006); Truth in Lending Act, 15 U.S.C. § 1640(f); Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1028.

-7-
quoted phrase, if read broadly, would wipe out the immunity; and,

in practice, the Supreme Court has almost never estopped the

government--outside of criminal cases or deportation.4

Tellingly, the Supreme Court's most recent pronouncement,

in Richmond, is a step back from Heckler's dictum; in Richmond, the

Supreme Court once again rejected a claim of estoppel against the

government on the ground that it would undercut the policy of the

statute in question. 496 U.S. at 424. Richmond's underlying

rationale--the need for enforcement of the law--is basically the

argument against allowing estoppel against the government. The law

here is that Nagle did not have enough hours for FMLA leave.

This court, too, has not quite closed the door to

exceptions but has repeatedly refused to apply estoppel against the

government in ordinary situations where a private party would or

might have been estopped.5 In one case we used estoppel language

in holding a statute of limitations tolled based on government

representations. Ramirez-Carlo v. United States, 496 F.3d 41, 48-

50 (1st Cir. 2007). But equitable tolling of statutes of

limitation has long operated against the government, see Irwin v.

4
Compare Richmond, 496 U.S. at 421-22; Heckler, 467 U.S. at
60; INS v. Miranda, 459 U.S. 14, 19 (1982) (per curiam), with
United States v. Penn. Indus. Chem. Corp., 411 U.S. 655 (1973);
Moser v. United States, 341 U.S. 41 (1951).
5
Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d 58, 66-68 (1st
Cir. 1999); Frillz, Inc. v. Lader, 104 F.3d 515, 518 (1st Cir.
1997); Phelps, 785 F.2d at 16-19; Ven-Fuel, 758 F.2d at 761.

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Dep't of Veterans Affairs, 498 U.S. 89 (1990), and the case is

largely a variation on that theme.

Statutes of limitation are a special case because

allowing an out-of-time law suit does not create new substantive

obligations but merely requires the government to defend a law suit

that could have been timely brought. Such limitations do not

require prejudice and are often described as "disfavored

defense[s]." Ameel v. United States, 426 F.2d 1270, 1274 (6th Cir.

1970). Nagle's claim is not barred by a statute of limitations:

she simply has no right to FMLA leave under the statute because she

did not work the requisite number of hours.

Nagle's case is hardly unsympathetic. Her husband was

sick and, by her account, she was several times assured by Frost

that she could have FMLA leave. Justice Jackson, a model of

humane good sense, made the classic argument in favor of estoppel

where the citizen relies on official statements, Fed. Crop Ins.

Corp. v. Merrill, 332 U.S. 380, 387 (1947) (Jackson, J.,

dissenting); but his opinion was in dissent. The core difficulty

is that estoppel against the government poses real problems.

Governments have many "agents," who may or may not have

authority to speak for the government in the matter at hand and

whose casual representations are hard to control. Anyone can

claim, without any confirming proof, that some official or clerk

misinformed the person about his or her legal rights. Further, the

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public has a general interest in having the same rules enforced

against everyone; affording special treatment to someone who was

misinformed creates special treatment, burdens on others or both.

Nagle is not asking to engage in prohibited conduct; this

case is essentially about money. But, although the amount here is

probably small, it could in other estoppel cases be very large; and

small claims--many perhaps sympathetic--can add up to a great deal.

As the Supreme Court explained in Richmond, 496 U.S. at 433:

To open the door to estoppel claims would only
invite endless litigation over both real and
imagined claims of misinformation by
disgruntled citizens, imposing an
unpredictable drain on the public fisc. Even
if most claims were rejected in the end, the
burden of defending such estoppel claims would
itself be substantial.

Richmond, although in tone a retreat from Heckler,

repeats Heckler's earlier dictum about the need to show

"affirmative misconduct"; but that phrase has usually been taken

to mean something more than careless misstatements, see, e.g.,

Dantran, 171 F.3d at 67; Clason v. Johanns, 438 F.3d 868, 872 (8th

Cir. 2006); Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir.

1986), and nothing in Nagle's complaint suggests anything worse

than uninformed reassurance on the part of a school official trying

to be helpful to Nagle.

By her own account, Nagle has nothing in writing from

Frost or other officials to confirm that any such representation

was made to her. A prime danger in applying estoppel to the

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government is the prospect of he said-she said trials as to whether

an alleged oral statement was ever made. Heckler itself made this

point. 467 U.S. at 65. A writing is far more likely to represent

a considered opinion on the part of the official, rather than a

casual comment, and is also more reasonably relied upon as an

authoritative assertion.

Finally, assuming that Nagle did not know that she was

far below the minimum hours needed for FMLA leave, Nagle plainly

recognized some potential problem with her ability to get such

leave: nothing else explains her actions. She also knew that she

had nothing in writing: she wrote letters assertedly confirming

oral statements that are otherwise undocumented and let matters lie

even though no written confirmation was ever provided.

Some mechanism should exist for employees to get rulings

on whether they are entitled to FMLA leave; and regulations under

the existing statute, recently strengthened but after the events in

this case, now require employers to provide written rulings on

request. See 29 C.F.R. § 825.300(d) (2009). Neither side claims

that the present regulation applies to this case, but the regime

underscores the utility of insisting upon a writing and suggests

that statutory or administrative solutions can be crafted.

If Richmond had come out the other way, Heckler's dictum

might be taken to presage a new approach by the Court, entitling

lower courts to develop the beachhead. That result would have its

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attractions, laid out by Justice Jackson, although estoppel is a

crude tool for making the needed policy choices and marking out

limits. But allowing estoppel here would be tantamount to allowing

it in the mine run of cases. Supreme Court precedent, and our own,

forbid this course.

Affirmed.

-Dissenting Opinion Follows-

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 LIPEZ, Circuit Judge, dissenting. The majority opinion

follows a familiar path: it acknowledges the precedent permitting

the use of estoppel against the government in exceptional

circumstances, while rejecting its use in the case at hand. It

bases this outcome primarily on concerns that arise whenever the

estoppel doctrine is invoked in a government context. If the

exception is not to be a false promise, however, it cannot be

rejected for reasons that will be present in every case. Moreover,

Nagle's claim avoids some of the concerns typically associated with

estoppel against the government. Most importantly, her claim is

compatible with government policy. In addition, it is based on

more than "casual representations." Because these distinctive

factors in combination place Nagle's claim outside the "mine run"

of estoppel cases against the government, summary judgment is

inappropriate. I therefore respectfully dissent.

I.

The problems related to the use of equitable estoppel

against the government are real, and there is good reason to

hesitate before applying the doctrine in that context. An impact

on the public fisc is virtually inevitable, even if the cost is

only in defending estoppel claims. See Office of Personnel Mgmt.

v. Richmond, 496 U.S. 414, 433 (1990). Similarly, given the number

of officials at all levels of government engaged in informal

conversations with the public, there is always a risk of excessive

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litigation by disgruntled citizens "over both real and imagined

claims of misinformation." See id. The majority also invokes the

public's "general interest in having the same rules enforced

against everyone." If Nagle is permitted to pursue estoppel

against the government and prevails, she will receive "special

treatment" – protection from an adverse employment action based on

her leave – that other district employees with similar tenure will

be denied.

I do not minimize the importance of these problems,

particularly the potential financial drain on public funds. But if

they provided reason enough to bar estoppel against the government,

we would never recognize such a claim. Moreover, "special

treatment" is the very premise of the estoppel doctrine: the

plaintiff seeks a remedy for individualized harm caused by the

defendant's misrepresentations. What matters is the nature of the

special treatment at issue.

Attempts to avoid generally enforceable legal obligations

are particularly troubling when they contravene important

government policies represented by the laws at issue. Hence, we

have repeatedly resisted plaintiffs' reliance on estoppel to escape

obligations to which they would otherwise be subject by law. See,

e.g., Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d 58, 66-67 (1st

Cir. 1999) (denying use of estoppel to avoid penalties for payroll

violations); Phelps v. Fed. Emergency Mgmt. Agency, 785 F.2d 13,

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16-19 (1st Cir. 1986) (denying use of estoppel to avoid compliance

with written proof-of-loss requirement for insurance claim); United

States v. Ven-Fuel, Inc., 758 F.2d 741, 744-45, 761 (1st Cir. 1985)

(denying use of estoppel to avoid penalties for violating oil

import licensing regulations).

In Richmond, the Supreme Court similarly emphasized that

the plaintiff sought to use estoppel to obtain a remedy – the

payment of disability benefits – that would not only be "in direct

contravention" of the statute on which his claim to relief rested

but would also violate the Appropriations Clause of the

Constitution. 496 U.S. at 424, 426. The Court firmly rejected

estoppel as a basis for an award of funds from the federal treasury

in light of the constitutional prohibition. See id. at 424

(quoting U.S. Const., Art. I, § 9, cl. 7, providing that "No Money

shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law."); see also id. at 434 ("In this

context there can be no estoppel, for courts cannot estop the

Constitution.").6

Nagle's claim, however, does not fit this usual mold.

Allowing her to invoke estoppel against the government would not

undermine the policy of the act whose limitations she seeks to

6
The Court in Richmond expressly left "for another day whether
an estoppel claim could ever succeed against the Government"
because "a narrower ground of decision is sufficient to address .
. . a claim for payment of money from the Public Treasury contrary
to a statutory appropriation." 496 U.S. at 423-24.

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avoid. The Family Medical Leave Act ("FMLA") is designed, inter

alia, to protect the continued employment of individuals – like

Nagle – who need time away from their jobs to help family members

confronting serious illnesses. See 29 U.S.C. § 2601(b)(2) (stating

that the Act's purposes include entitling "employees to take

reasonable leave for . . . the care of a child, spouse, or parent

who has a serious health condition").7 Although Nagle falls

outside the category of employees to whom Congress guaranteed the

protections of the FMLA, her estoppel claim would in no way

compromise "the interest of the citizenry as a whole in obedience

to the rule of law," Heckler v. Cmty. Health Servs., 467 U.S. 51,

60 (1984). Neither the FMLA nor the policy behind it bars the

school district from going beyond the statute's scope to protect

employees who have less tenure. See 29 U.S.C. § 2651(b) ("Nothing

in [the FMLA] or any amendment made by this Act shall be construed

to supersede any provision of any State or local law that provides

7
The statute as a whole was designed to address "gender-based
discrimination in the administration of leave benefits." Nevada
Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735 (2003); see also
id. at 737 ("By setting a minimum standard of family leave for all
eligible employees, irrespective of gender, the FMLA attacks the
formerly state-sanctioned stereotype that only women are
responsible for family caregiving, thereby reducing employers'
incentives to engage in discrimination by basing hiring and
promotion decisions on stereotypes."). The Act's "central
provision guarantees eligible employees 12 weeks of leave in a 1-
year period following certain events: a disabling health problem;
a family member's serious illness; or the arrival of a new son or
daughter." Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
86 (2002).

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greater family or medical leave rights than the rights established

under this Act or any amendment made by this Act."). Rather,

allowing Nagle to pursue her claim advances the employee-protective

policy sanctioned by Congress when it enacted the FMLA. See

Ragsdale, 535 U.S. at 84 ("The Act encourages businesses to adopt

more generous policies . . . .").8

The majority recognizes that the estoppel issue requires

a balancing of competing interests, with the plaintiff's "claim of

honest reliance" on one side of the scale and, on the other, the

government's "justified concerns to assure enforcement of the law,

about the lack of authority by officials to vary it, and about the

prospect of spurious law suits." The majority fails to take into

account, however, that the government's concerns have considerably

less weight in cases where the estoppel would not undermine the

public interest reflected by the law. Cf. Ven-Fuel, 758 F.2d at

761 ("The possibility of harm to a private party inherent in

denying equitable estoppel . . . is often (if not always) grossly

outweighed by the pressing public interest in the enforcement of

congressionally mandated public policy.").

8
I realize that the Congressional cutoff for FMLA eligibility
– 1,250 hours worked in the preceding twelve months – is the
product of a deliberate compromise that balances the needs of
employees and their employers. See 29 U.S.C. § 2601(b)(3) (noting
that the Act is designed to accomplish its purposes "in a manner
that accommodates the legitimate interests of employers"). But the
explicit provision allowing more generous benefits under state and
local law forecloses an argument that allowing estoppel here would
contravene the federal law.

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 In advising Nagle that she could take FMLA leave, the

school district effectively told her that she would not be

penalized for taking a family medical leave. She is thus seeking

performance of a promise that her leave would not be factored into

decisions about which employees to terminate. There would be

nothing untoward about requiring the district to follow through on

its assurances of FMLA-"type" protection – notwithstanding the

statute's eligibility requirements – because no law or policy

forecloses the district from making such a promise.9

Our precedent holding that estoppel against the

government is "hen's-teeth rare," Costa v. INS, 233 F.3d 31, 38

(1st Cir. 2000), arises from the typical case: a plaintiff who

seeks "an advantageous bargain unauthorized by law." Falcone, 864

F.2d at 229. It should indeed be the unusual case in which an

individual is allowed to estop government officials from enforcing

legislative enactments. It is most appropriate, however, to allow

9
We have previously found a plaintiff's reliance on a
government spokesman's representations to be unreasonable on the
ground that "'those who deal with the Government are expected to
know the law and may not rely on the conduct of Government agents
contrary to law.'" Falcone v. Pierce, 864 F.2d 226, 230-31 (1st
Cir. 1988) (quoting Heckler, 467 U.S. at 63). Similarly, in
Dantran, we held that "if a statute or regulation clearly limns a
party's legal obligations, the party cannot justifiably rely for
estoppel purposes on a government agent's representation that the
law provides to the contrary." 171 F.3d at 67. That barrier to
recovery is inapplicable here. Because FMLA-type benefits could be
given to Nagle without violating the law, knowledge of the
statute's eligibility requirement would not have foreclosed her
reasonable belief that, based on Frost's assurances, she could take
the leave without affecting her future employment.

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an estoppel claim to go forward where the plaintiff seeks action

consistent with the policy underlying the enactment.

II.

Opening the door more widely to estoppel claims that are

consistent with government policies will not trigger a flood of

spurious lawsuits. That consistency will not be commonplace. Many

low-stakes claims will never be brought because of the high cost of

litigating them. In addition, as the majority points out, our case

law already incorporates a limiting principle through the special

requirement of affirmative misconduct. See Ramírez-Carlo v. United

States, 496 F.3d 41, 49 (1st Cir. 2007). Even if that additional

element presents a low barrier,10 the burdens imposed by the

standard elements of equitable estoppel also serve to discourage

the filing of truly meritless claims. See Heckler, 467 U.S. at 61

("[H]owever heavy the burden might be when an estoppel is asserted

against the Government, the private party surely cannot prevail

without at least demonstrating that the traditional elements of an

estoppel are present."); Mimiya Hosp., Inc. v. U.S. Dep't of Health

& Human Servs., 331 F.3d 178, 182 (1st Cir. 2003) (stating the

10
We have said that "'[a]ffirmative misconduct . . . require[s]
an affirmative misrepresentation or affirmative concealment of a
material fact by the government, although it does not require that
the government intend to mislead a party.'" Ramírez-Carlo, 496
F.3d at 49 (quoting Watkins v. U.S. Army, 875 F.2d 699, 707 (9th
Cir. 1989) (en banc)). The repeated assurances that Nagle could
take FMLA leave fit this description of "affirmative
misrepresentation."

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requirements of reasonable, detrimental reliance on a

misrepresentation). Moreover, courts have a particular

responsibility to hear the claims of citizens who have been wrongly

treated by the government, and judges are capable of sorting out

the meritorious filings from the frivolous ones in the early stages

of litigation.

The Court in Richmond raised the specter of "endless

litigation" as one of the "pernicious effects" that may result from

"acceptance of estoppel claims for Government funds." 496 U.S. at

433. Richmond is far removed from the circumstances here. The

Court was addressing claims against the federal government with

constitutional implications, observing that "[i]t ignores reality

to expect that the Government will be able to 'secure perfect

performance from its hundreds of thousands of employees scattered

throughout the continent.'" Id. (quoting Hansen v. Harris, 619

F.2d 942, 954 (2d Cir. 1980) (Friendly, J., dissenting), rev'd sub

nom. Schweiker v. Hansen, 450 U.S. 785 (1981)). In a local

context, however, the "practical concern[]" of excessive litigation

carries far less weight.

In rejecting Nagle's attempt to rely on the estoppel

doctrine, the majority emphasizes that she has no written

confirmation of Deputy Superintendent Frost's assurances that she

could take FMLA leave to care for her ailing husband. It observes

that the absence of such evidence leads to the "prime danger" of

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"he said-she said" trials resulting from casual comments. A wide

spectrum of circumstances exist, however, between an explicit

written confirmation and "casual representations" that might be

insufficient, as a matter of law, to state a meritorious claim of

estoppel against the government.

Nagle's case does not rest on offhand comments. She sent

a thank-you letter for her FMLA leave, identifying it as such, to

the very person who she claims made the representations on which

she relies. In a large bureaucracy, there could be substantial

doubt as to whether the intended recipient of such a letter would

have in fact received it. In the context of a small governmental

body like the school district, however, it is a fair inference that

Frost received and read Nagle's correspondence. Cf. Ramírez-Carlo,

496 F.3d at 50 ("[A] reasonable fact finder could infer that the VA

did, in fact, agree to the late submission from the letter's

language that it was written 'to confirm [the parties']

negotiations and disposition,' from the lack of response from the

VA to the contrary, and from the fact that the claim was ultimately

settled."). In these circumstances, Nagle is entitled to have a

factfinder decide whether a misrepresentation was made and if she

reasonably relied on it to her detriment.

III.

The permissible use of estoppel against the government

remains an undeveloped and uncertain area of the law. The Supreme

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Court in Richmond noted that it had "reversed every finding of

estoppel that we have reviewed," despite "dicta in our more recent

cases . . . suggest[ing] the possibility that there might be some

situation in which estoppel against the Government could be

appropriate." 496 U.S. at 414. Still, the Court refused to rule

out the possibility. This case demonstrates the wisdom of that

restraint because it presents the situation where estoppel against

the government might be appropriate. The remedy sought does not

violate federal law and, indeed, advances an important public

policy; the claim implicates a small unit of local government

rather than the federal system; and it relies on more than a casual

representation by a government official. These considerations

justify Nagle's invocation of the estoppel doctrine. I would

therefore reverse the grant of summary judgment.

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