noting, in holding that exhaustion of remedies would be futile and therefore was not required, inconsistency of Secretary’s non-acquiescence policy with separation of powers and rule of law as established in Marbury v. Madison
How later courts described this case
- noting, in holding that exhaustion of remedies would be futile and therefore was not required, inconsistency of Secretary’s non-acquiescence policy with separation of powers and rule of law as established in Marbury v. Madison
- “That the Secretary, as a member of the execu- tive, is required to apply federal law as interpreted by the federal courts cannot seriously be doubted.”
- “Plaintiffs challenged the Secretary's termination of their benefits on the ground that the Secretary unconstitutionally refused to give effect to two decisions of this court describing the procedures the statute requires the Secretary to follow in terminating benefits.”
- concerning an "announced" policy of nonacquiescence by the Secretary of Health and Human Services
Written by the judges who cited it.
The opinion
BOOCHEVER, Circuit Judge,
concurring.
I concur generally in Judge Reinhardt’s opinion and share his concern over the Secretary’s refusal to obey the decisional law of this circuit. I cannot agree, however, that a substantial question is presented as to whether claimants who received termina *1511 tion notices from the Secretary more than sixty days prior to commencement of this class action and failed to seek any review are time-barred by the sixty-day limitation of § 405(g). The district court had no jurisdiction under § 405(g) over those claimants. See Heckler v. Lopez, — U.S. —, 104 S.Ct. 221, 223 , 78 L.Ed.2d 217 (1983) (Stevens, J., concurring in part and dissenting in part).