Appendix — Richardson v. Wright

Supreme Court brief1972

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oo APPEALS FROM THE UNITED STATES DISTRICT COURT

A ie „„ ALOT OL OO eGR OO ee,

In the Supreme Court ol the Unite

Ooronm Tzem, 1971 „

No. 70-161

Exxxor L. Rrowazpson, Secretary of Health,

Education and Welfare, Appellunt

Ram WROHr, et al.

No. 70-5211

Ram Waicut, et al., Appellants .-

Exxxor L. Ramanbson, Beoretary of —

Health, Education and Welfare

FOR THE DISTRICT OF COLUMBIA

By Fe FILED MAY 10 AND 11,1971 7 s

PROBABLE JURISDICTION NOTED OCTOBER 12,1971

eee rs enen

ae 4

An the Supreme Court of the Anited States 5

2 PPP >

2 2

No, 70161 oa

EILAaor L. — — 5 Health,

Education and neo ps Appellant °

Rapm N et al.

No. 705211

es ie

Rabm e et al., geek

V. .

Exaaor L. e Secretary orf

H ealth, Education and Welfare 2

ov APPEALS FROM .THE UNITED. STATES DISTRICT cous A,

‘FOR THE DISTRICT OF COLUMBIA 6

„ INDEX To 8 :

Relevant Docket Bntris ut ade. Yo e *

Inthe United States District Court forthe pit ai di.

bia: * Bar rte :

Plaintiff’s Complaint .. . e e <c ts «tides 3 0

_ Exhibit B: inter of April 14,1970 to us Wright

from Social Security Administratibnnn „13 .

Rrhibit O: letter of April 10, 1970 i Bedbara 8 0

Popick, Direetor, ee ee een e b ee e

. from Leone Turdin- VVFP ae

nee...

Arbibit D; 1 3 e of

i eee e eee 17 Sinai»

fp... EO

5 Plaintiff's Motion for Preliminary In junction

75 Affidavit of Radie Wright in Support of Motions for Tem-

: — —

Application for Convening Court of Three Judges Bech: 5

I of Aatio®: us; Mabwiginahle, os 0

. ͥ0·¹·-—“ ³ 2 e

‘Temporary Restraining Order ot Gasch, J. i gee vied

Affidavit of Paul Merli“““n“.n“.nnknnnnnnnnn .

Defendant’s Opposition to Plaintiff’s Motion for a Pre-

liminary Injunction and Application for Convening a

Three - Judge Court and Defendant's Motion to Dismiss .

; or for Summary Judgment VVVVCVHVNPXñARNa S

Defendant’s Statement of Material Facts

Affidavit of Samuel E. Crouch

Plaintiff s Reply to Defendant’s Opposition and Oppo-

sition to Defendant's Motion to Dismiss and Plaintiff's

Cross- Motion for Sumary Judgment .

Plaintiff's Statement of Material Facts? ;

Plaintiff’s Opposition to Defendant’s Statement of

„ ⁰⁵ñÄñ T ĩ˙A a sd »

Affidavit of Clara Wright in Support of Motion for a

; Preliminary Injunction ...........2.0.. 26. 66.. ä

Es Supplement to Affidavit of Radie Wright in Support 4

of Motion for Preliminary Injunction ..........

Supplement to Affidavits of Radie Wright in Sup-

paort of Motion for Preliminary Injunction ......

Letter of June 23, 1970 to Leona Turdin from

f Emerson Williams, M.D. JCCCꝙÿ7 -i seb rabies

Motion of John Due Atkin, J for Leave to Inter.

Jr. from Social ih ao pe,

Exhibit C: letter of Febrosry 4, 1970 to Social Sew.

‘

— a

* i

Index Continued - e e

ity Alando trom Schi Ades Be. i. &

Exhibit D: telegram of February 5, 1970 to Social .

2 ee

Brhibit F: letter of April 29, 1900s e Atkins pa

Ir. from Social Security Administration .... 73

sale of home of John Atkins, Jr. SPU ATA 75

Affidavit of Martha Atkins in Support of Complaint

in Intervention and Motion tor « Preliminary In- me

FOG ²·ůmwãê . Soe EGE hte HA tk = Fy

Affidavit of John Atkins, Jr. in Support of Com- 5

s plaint in Intervention and Motion for à Pre- 3

‘ liminary In junction 8

Defendant’s Opposition to Motion for Leave to Intervene eee

and to Plaintiff’s Motion for Certification of Action as :

Maintainable as a Class Action 83

Order of Gasch, J. granting Motion for Leave to Inte-

vene and Plaintiff 3. Motion for Certification of Action

as Maintainable as a Class Action 86

. Affidavit of Bernard Popick: i in Support of Defendant’s

G ͤ œQÜꝗ:;ndsdd 3 87

Opinion by Gasch, D. J., concurred in by Robb, C. J., and

2 BF Mahone, Se: D. 5

„ . belie ꝗ 2. 104

Defendant’s Motion for Stay Pending Appeal 106

Plaintiff’s Gene we n er ne oe

r v SR ORES 107

Plaintif's and Tntervenor Plaintift's Notice of Appeal to

the Supreme Court of the United C 108

Defendant’s ‘Notice of Appeal to the Supreme Court of

, tee United Beates (5 . 109

: order of Robb, CJ. Matthews, Sen. DJ. and Gasch, DJ.

2 granting conditional stay pending appeal PPR ee 110

Order of the Supreme Court Noting Probable Jurisdiction,

Granting Plaintiffs-Appellants Leave to Proceed In Forma

— ae i Rn

Date a

> Bip

May 13 5

ee 1 — . 5

Vo. 1457770 in the United States District Court for h

. te, N of Columbia

7 3 Motion for leave to file in forma pauperis,

with ain 238 oints and uthoriti

granted by McGuire

Motion for leave to 2 in forma —— 8

N co for hited restraining order

and preliminary injunetion, with affdavit, me

points and ee a neta,

filed

if Motion for certification of action as main.

authorities, filed - |

Temporary restraining order entered by

with points and authorities, filed

Motion for convening a three judge céurt 5 8 b

— —U

- * 2

tainable as a class Action, with Points and ;

Gasch, J.

Affidavit of Paul Merlin fled aes | = .

Defendant 8 opposition to motions for pre-

ary injunction and for convening a

at three-judge court and defendant 8 motion

June 23

‘Plaintiff's. iis to 1 8 opposition,

plaintiff’s Opposition to defendants motion

to disinisg and plaintiff’s oross- motion for

mar- judgment, with statement of f mate- 1

July 2.

rial tacts, e to n 's state-

ment of material facts, affidavits, and points

and authorities, filed

Request by Gasch, J. to the Chief Judge,

United States Court of Appeals, for the .

designation of a panel of three judges

Designation by Wright, Acting Chief Judge,

United States Court of Appeals, of Robb,

C. J., Matthews, Sen. D.J., and Gasch, D.J.

as the panel to hear and determine the

matter .

Motion of John Dillard Atkins, J r. for leave

to intervene as party plaintiff, with points

and authorities, complaint, attachments and

affidavits, filed

Defendant’s opposition to motion for leave

to intervene and to plaintiff’s motion for

certification of action as maintainable as a

“class action, filed

Order of Gasch, J. granting motion for leave

. to intervene as party plaintiff and motion

for certification -of action as maintainable

as a class action

‘Affidavit of Bernard Popick, in support of

defendant’s opposition, filed

conducted before Robb, C.J., Mat-

Hearing

thews, Sen. D. J., and Gasch, D.J.; action

Sa SS Ar eo

) Ot Gasth, D. J., concurred in by

ae to nnd tt prt

©)

2 *

3 2

Date 5 Filinge— Proceedings

1971 *

* in the determination proceed -

granting plaintiff s motion for summary

judgment and denying defendant’s motion

for summary judgment 13 1

March 1 Nefendant’s motion for a stay pending ap-

. peal, with points and authorities, filed b

March 10 Plaintiff s ition to motion for a stay

pending ap with points and authorities,

filed :

March 12 Plaintiff’s and intervenor plaintiff's notice

_ Of appeal from order of February 12, 1971,

filed er

Defendant’s notice of appeal from order of

February 12, 1971, filed

March 24 Order of Robb, C. J., Matthews, Sen. D.J *

and Gasch, D. J. staying order of February

. 12, 1971 pending appeal on the condition

, that plaintiff continue to receive social se-

curity disability benefits until his eligibility

is suspended in accordance with the proce-

dures outlined in the January 6, 1971 opin-

. ion 0 g

No. 70-161 in the United States Supreme Court

igi | roe

May 11 Appellant, Richardson’s jurisdictional state-

ment fle 1

October 12 Order of Court noting probable jurisdiction

| and consolidating the case with No. 70-5211

Vo. 70-52M in the United States Supreme Court

motion for leave to proceed in forma pau-

peris, filed

Appellee Richardson’s memorandum in re-

sponse filed

Appellants’ response to appellee’s memo-

randum filed

Order of Court noting probable jurisdic-

tion, granting appellants -leave to proceed

in forma pauperis, and consolidating the

case with No. 70-161

In tHe Unrrep Srares Drermor Covrr

FOR THE Disreicr or Coll UART

and b

Ciara Lrrrin Waicxt, on

their own behalf and as .

next of friend to their Et : 3

infant child CLannxon Epwanp, ,

and on behalf of all others

similarly situated,

Plaintiffs, { Civil Action No. . ;

Rozsert H. Frxon, individually

and in his capacity as Secretary

of Health, Education and Wel-

fare, „

Defendant.

COMPLAINT

(Request for Three-Judge Court)’

1 i

versy exceeds the sum of $10,000.00 exclusive of interest

and costs. —

1 sane

This is an appropriate case for the convening of a three.

. |

judge court, pursuant to 28 U.S.C. Secs. 2282 and 2284, in

that plaintiffs seek an injunction against the enforcement,

operation and execution of Acts of Congress, 42 U.S. C.

Sees. 425, 405 (b), 421 (a] and 421 (d) (a copy of which is

attached hereto as Exhibit A), insofar as these statutes -

benefits prior to granting adequate notice and opportunity

to be heard, on grounds of their repugnance. to the due

process clause of the Fifth Amendment of the Constitution

of the United States. 2

This action seeks an injunction and declaratory judgment

declaring unconstitutional and restraining the enforcement

of the aforesaid Acts of Congress, on their face and as ap- =

_ plied and interpreted by defendant, on the grounds that

said statutes, and actions taken pursuant thereto, deny to

plaintiffs due process of law guaranteed by the Fifth

of the grounds of termination of their Disability Insurance

benefits, and deny to plaintiffs an opportunity for a fair

7 9592 V N N

Plaintiff Radie Wright is an adult citizen of the United

States and has been a resident of the District of Columbia

since 1950. Plaintiff Clara Little Wright has been married

to plaintiff Radie Wright for 21 years. Plaintiff Clarence

Edward Wright, age 17, is the minor child of Radie and

Clara Wright and has lived with them at their residence

located at 1249 Half Street, S. W., Washington, D.C.

7 Plaintiff Radie Wright has a history of physical disability

I cirrhosis, osteroarithritis of the knees,

gastritis with Laennec’s cirrhosis, hypercholesterol anemia,

decompensated cirrhosis, ic hermatemsis and he-

patic mpensati He applied for Social Security and

in 1966 on the basis of a determination, pursuant

42 US.C. See. 423(d)(1)(A of his ‘‘inability to engage

* <4

iu any substantial gainful activity by reason of (a) medi

cally determinable physical or mental impairment which

2 g

can be expected to result in death or which has lasted or

ran be expected to last for a continuous, period of not Iées

than 12 months“ defendant commenced payments for the

—

benefit of plaintiff Radie Wright and his wife and children.

Social Security Ast, 42 U.S. C. 66 401-429. All of the mem-

bers of this class face peremptory, ex parte termination

of their payments upon any administrative —

of ineligibility prior to being afforded an opportunity for

an evidentiary hearing. The authority to terminate pay-

ment and then grant an opportunity for a hearing is granted

class, including the named plaintiffs face peremptory, ex

parte suspension of benefits if the defendant believes they

may have ceased to be under a disability“, pending his

determination of whether „disability has ceased or until

the Secretary believes that such disability has not ceased”? -

as authorized by 42 U.S. C. See, 425. Plaintiffs bring this

persons in the class are so numerous that joinder of all

members is impractical ; there are questions of law or fact

common to the class ; the claims of thé re 0

members of the

positive of other members

Education and Welfare and, as such, is charged wih the

8. C. Secs, 401 et ,seq.;:end in particular. with the deter-

minstion of entitlement to benefits on the basis of disa-

bility pursnant,to.49 U.. C. Secs. 402(d). and 423.

Title II of the ‘Social Security Act, 42 U.S.C. Sec. 401

et seqi, creates a program of Disability Insurance under

_ which individuals who have aéeumulated certain quarters

of coverage and suffer a totally disabling impairment of

enduring character become thereby entitled to earning-

replacement benefit payments for themselves and their de-

pendents. Persons who meet the statutory criteria, as

interpreted in the Department of Health; Education and

Welfare regulations, receive Disability Insurance payments

as a matter of statutory entitlement.

Bate il! b os am 5

Plaintiff Radie Wright began full-time work at age 14

and, for the most part, maintained gainful employment

as a heavy and unskilled laborer. His last place of employ-

ment was with the Magnus and Lawson Construction Co.,

Colesville Rd., Silver Spring, Md., in 1965.

Plaintiff Radie Wright left his position with Magnus

and Lawson Construction Co. in 1965 because of a severe

i medi | at the medical clinic at Freed-

man’s Hospital on a regular basis, making visits twice a

month. Due te: his physical eondition at that time, it was

i ible for him to continue employment as an unskilled

laborer. In early 1966, plaintiff made application for Social.

— oat benefits on behalf of himself and his

. His application was 1 1966.

XII

parte action of the Defendant Secretary on April 14, 1970.

Plaintiff Radie Wright received.a letter (attached hereto as

Exhibit B) dated. April 14, 1970, which informed him in ,

pertinent part as follows: | P

sons. Therefore, cessation of his pension would cause

immediate dire financial difficulties and extreme hard-

chip for himself and his family. n at

It is clear that if a suspension or termination occurs

under these circumstances, Mr. Wright and his family

will be compelled to suffer great hardship by having

their sole source of income cut off without a prior

hearing, with counsel, and the right to present evidence

to support his position. Bie, ee

Therefore, I urge you to grant my client a @earing:

on the merits of his claim to disability benefits prior

Fi to any suspension or termination of his paym

‘ Please let me know, by return mail, whether or not

Mr. Wright will be sent a disability check during the

first week of May, 1970. If Mr. Wright will not be

sent his May check, please let me know, by return mail,

when and where we can hold a hearing on the merits

of his claim. This hearing must be scheduled far

-enough in advance to enable me to properly prepare

Mr. Wright’s position, and, clearly, it must be prior.

to the end of April. re |

On April 17, 1970 plaintiff received a letter from the Social

Security: Administration notifying him that his benefit

payments have been stopped pending an ex parte deter-

mination and investigation so that we (Social Security

Administration) can study the facts and decide whether you

still meet the requirements for disability benefits (E-

hibit B attached hereto). Plaintiff has as yet received no

response to his letter of April 10, 1970 requesting a hear-

ing prior to termination. 9

g A |

_. Plaintiff Radie Wright knows of no medical evidence

which would establish his. ability to work, and in fact, is

medically. unable to maintain gainful employment at this

time. His doctors have advised him not to undertake regu-

Mr. Wright obtains treatments at Freed-

of his medical condition

20, 1970 (attached hereto as Exhibit D) indicates that

plaintiff suffere from, among other conditions, hyperten-

sion, abnormal cirrhosis of the liver, abnormal liver fune-

tion, hepatomegaly and swollen liver, The medical.report .

also states that Mr. Wright’s major disability cannot be

. removed by treatment. fibers “ie Sy SPB pha 1% tol

7 XV OP DOE: tae i

Plaintiff Radie Wright, due to his state of health, is pres-

ently unable to maintain gainful employment ‘and provide

support for himself and his family. ‘Accordingly, because

of the loss of Social Security income, plaintiffs will suffer

mental anguish and immediate, continuing and irreparable

injury to their health. 1 e ar aint ee

‘ oe N 0 fe XVI 4 Wg N 5

Defendant’s preemptory, ex parte action suspending or

terminating plaintiffs’ Social Security Disability Insurance

benefits violates the Due Process Clause of the Fifth Amend-

ment to the United States Constitution in that it effectively

suspended or terminated and withholds benefits essential

to lifé itself without affording plaintiff Radie Wright rea-

sonable and adequate notice as well as an opportunity for

a prior fair hearing. eek ; 21 :

Sections 405 (b), 421 (a), 421(d) and 425 of the Social

Security Act 42 U.S.C. Sec. 405 (b), 421 (a), 421 (d) and 425

are invalid and repugnant to the Due Process Clause of the

Fifth Amendment to the United States Constitution insofar

as they authorize or require the defendant Secretary to take

preemptory, ex parte action suspending’ or terminating

benefits without affording reasonable and adequate notice

and an opportunity for a prior fair heari 3

Wuezeror:, plaintiffs respectfully pray that this Court:

I. Assume jurisdiction of this case; 4 ö

2. Convene a three-judge Court to hear this cause;

3. Enter a Temporary Restraining Order and à Pre-

liminary and Permanent Injunction (A) restraining the

operation and enforcement of 42 U.S.C. Sees.. 405 (b),

421 (a), 421 (d) and 425 insofar as they authorize or require

the defendant Secretary to put into effect the suspension

or termination of Social Security Disability Insurance bene-

fits to plaintiffs, and (B) requiring the defendant Secretary .

i :

to restore and continue benefit payments to plaintiffs until

notice and opportunity for a hearing meeting Due Process

4. Declare that 42 U.S. C. Secs. 405(b), 421 (a), 421 (d)

and 425 are invalid as repus t to the Due Process re-

auired by the United States Constitution insofar as they

authorize or require termination of Social Security Disa-

bility Insurance benefits payments without adequate notice

8. Certify plaintiffs and those who are similarly situated |

volved in this action. 8

6. Declare the other rights and relations of the parties

hereto; : : ae

7. Award Costs to plaintiffs ; and | |

8. Enter such other and further relief as the Court may

deem just and appropriate. os ,

/s/ Leona Yurdin

Lon Yorprixr

36 N Street, S.E.

Washington, D.C.

5 544.5000

/s/ E. Calvin Golumbic

E. Carvrs Gotumsio

36 N Street, S. B.

Washington, D. C.

544-5000

/ Baward E. Schwab

Down E. Scuwas

a Deane 288 N. E.

ashington, D. 0.

; ; Attorneys for Plaintiffs |

——.— axp Swonn to before me this 7th day of May

5% Frank L. Eccles’

Notary Public, D. C. rr.

My Commission Expires Dec. 31, 1972

Bie |

| ila

' Department, or HATE, Epvoation, au Waiyann

SOCIAL SECURITY ADMINISTRATION

Baltimore, Maryland 214i

| | When Writing About Tour Claim To: -

- Washington, D. C. ‘20208

Radie P. Wright - 555

1249 Half Street, Southwest pike

Washington, D.C. 20024

. 7s “es

Your benefit payments have been stopped because your

trial work period expired 3 Me are with-

holding further payments until we can study the facts and

decide whether you still meet the requirements for disability

benefits. We will let you know when this decision has been

made and will tell you then whether payments can be

started again. rd )

In the meantime, if you have any questions about your

claim, please get in touch with your social security office.

If you call in Person, please take this notice with you.

Sincerely yours, ;

0 2

/s/ C. C. Hall

C. C. Hau |

Assistant Director Bureau of

Disability Insurance

tbs

Re: Mr. Radie Wright

Social Security No. 578-56-2424

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DERARTOERT OF PUBLIC WELFARE '

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Physical Capacities: (Under "Physical Activities” and “Working conditions we

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[Title Omitted in Printing]

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

: IN PORMA PAUPERIS

I, Radie Wright, being first duly sworn, depose and say

that I am the ‘plaintiff in the above-entitled case; that in

support of my motion to proceed without being required

to prepay fees, costs or give security therefor, I state that

because of poverty I am unable to pay the costs of said

p or to give security therefor; that I believe I

am entitled to redress, and that the issues which I desire

to present are fully set forth in the motions for temporary

restraining order and preliminary injunction and affidavits

and memorandum in support thereof.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability

to pay the costs of this proceeding are true.

1. Are you presently employed? ,

I am not presently employed because I am physically

disabled and am unable to hold a regular job.

From the last quarter of 1968 through December 1969

I was employed by the Shayne Brothers Corporation, 1401

Ww Street, N. E., Washington, D. C. My work for Shayne

Brothers involved handling dead animals. I earned ap-

proximately $3,330.41. From October 1969 through Decem-

ber 1969 I also worked as a laborer for the Frank B. Joy

Company, 817 Bunker Hill Road, N.E., Washington, D.C.,

and earned approximately $1,015.40. I have had no em-’

ployment. since December 1969. My last employment prior

to the start of my work for the Shayne Brothers was in

1965 when I worked as a laborer for Magnus Lawson -

Corporation, Colesville Road, Silver Spring, Maryland.

2. Have you received within the past twelve months any

income from business, profession or other form of self-

employment, or in the form of rent payments, interest,

dividends, or other source?

During the past twelve months I have been receiving

Social Security Disability benefits. I have been receivi

January 1968 my benefits were $97.40 per month. Because

of my eligibility for Disability Insurance benefits, in May

1966 my son Radie Wright, Jr. began to receive Disability

5.40 per month. I was payee for

these payments. In Japuary 1967 my wife Clara Little

Wright also became entitled to Disability Insurance bene-

payee for him. Instead, the District of lumbia Depart- .

ment of Public Welfare became payee for him and received

$55.10 per month ‘effective May 1966 through December

1966. In January 1967, because of Mrs. Wright’s entitle-

ment, his payments were reduced to $34.20. The Social

Security Administration later found that Mrs. Wright had

received an overpayment for a period of one month when

Radie Jr. was not living at home. . ’

In March 1970, effective January 1970, as a result of

further statutory changes my monthly check was increased

to $127.70 and Clarence’s benefits, which were still being

paid to the Department of Public Welfare, were raised to

263.40 per month. On April 18, 1970 I received a letter from

the Social Security Administration notifying me that in the

future I would not receive benefit checks because the Social

Security Administration has determi that I have ex- .

hausted my trial work period and that they are continuing |

to consider whether or not I still meet the requirements for

Disability benefits.

3. Do you own any cash or checking or savings account!

Lown no cash, checking or savings account. |

4. Do you own any real estate, stocks, bonds, notes, auto- ;

_ mobile, or other valuable property (excluding ordinary

household furnishings and clothing) ?

I own no real estate, stocks, bonds, notes, automobile ‘or

other valuable property. ; 7

: 5. List the persons who are dependent upon you for sup-

port and state your relationship to those persons. :

6. Out of my monthly disability benefits 1 also pay each

month ' $33.00, for rent, approximately $44.00 for food

. — — a wife for our clinic treatments and other

„ that a false statement or answer to any

See ee een

perjury.

7s, Radie P. Wright

Ram P. Waicut

Suren ann Sworn to Barons me this 7th day of May

1970.

Let the applicant proceed without prepayment of costs or

fees or the necessity of giving security therefor.

Judge |

Je, Frank L. Eccles

Notary Public, D.C. |

My Commission Expires Dec. 31, 1972

[Title Omitted in Printing) —

as they autho;

pend or term

ment, Pending a hearing and final determination of plain:

The grounds for this motion are that dire, immediate and

irreparable injuries, losses and damages will result to the

plaintiffs Radie P. Wright and Clarence Edward Wright,

because of their losses of their sole sources of income, if

, i Lincoln: 4.5000 Dergin

s idt ee egen a sarees

a, Edward E. * to 80014

2 D. C. 20019

‘ .

a a

[Title Omitted in Printing]

Pending the full hearing and determination of this

action, plaintiffs move this Court for a preliminary in-

junction: n s Kee

1. Enjoining the defendant Secretary from enforcitig

the provisions of 42 U.S.C. Sections 425, 405(b), 421 (a)

and 421 (d) insofar as they authorize or require the defend-

ant Secretary to suspend or to terminate the payments of

Old Age, Survivors and Disability Insurance benefits to

recipients who have been found entitled to such benefits

pursuant to 42 U.S. C. Sections 401 through 429, without

the defendant Secretary having first afforded them oppor-

‘ tunities for evidentiary hearings meeting the standards of

Due Process of law; .

2. And for a further order requiring the defendant

_ Secretary to restore and continue benefit payments to all

recipients of Old Age, Survivors and Disability Insurance

benefits until thg conclusions of evidentiary Due Process

hearings on the merits of their claims to continued en-

titlements. : N

This motion is made on the grounds that before a full

hearing can be held and without a preliminary injunction

against the defendant secretary’s enforcement of 42 U. g. CO.

Sections 425, 405 (b), 421 (a) and 421 (d) and without an

order restoring benefit payments to plaintiffs Radie P.

Wright and Clarence Edward Wright, and all others in

their class, plaintiffs will suffer irreparable injury because

of their losses of their sources of income, as fully set forth

in the complaint, affidavit and memorandum in support of

this motion and their motion for a temporary restraining

order, motion for certification as a class action and memo-

randum in support thereof, all attached hereto and made

. ugh this action has not yet been certified as a class

action, it has been filed as such and, as shown in the at-

tached motion for certification as a class action and memo-

randum in support thereof, this action meets all the requi- .

sites of a class action under Rule 23 of the Federal Rules of

Civil Procedure, Since it is most likely this action will be

certified ‘as u class action, it is at this time appropriate to

bene

grant the

class.

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[Title Omitted in Printing)

arr. OF MOTION FOR TEMPORARY’

ren ned maso

I, Badie Wright having. sam dele sworn. depose pa say:

„1. Lam an adult citizen of the United States and have

been a resident uf the Distriot of Columbia ince. 1950. 1

am 47 years old and have been married to my wife Clara

Little Wright since 1950.

2. We are the natural parents of two! sons, Radie Wright,

Jr. age 19 and Clarence Edward Wright, age 17. We reside

at 1249 Half Street, S. W. and have lived there for the past

51 years. I have completed the second grade in public

school in Wadesboro, North Carolina. ,

3. I began full-time employment as a railroad oonstruo-

tion worker in Wadesboro, North Carolina when I was ap-

. . proximately 14 years old. From that time until I became

_ physically. disabled in the fall of 1965 I worked as a laborer

primarily carrying heavy objects or pushing heavy loads.

‘From about 1958. until the fall of 1965, when I became

disabled, I worked for the Magnus Lawson Construction

Company of 8634 Colesville Road, Silver Spring, Maryland.

poe Pag involved carrying bricks and operating a cement

4. In the fall of 1965 I suffered a hemorrhage and was

admitted to Freedman’s Hospital, in the District of Colum- .

bia. I was hospitalized for about five weeks and was warned

by my doctors not to attempt to resume employment, Since

chat time I have been regularly receiving treatments at the

Freedman’s Hospital out-patient clinic, -

5. Because of my poor health and upon the recommenda-

; tions of, doctors I was compelled to stop working. There-

5 i in fas pins ta gap pe oe ayaa :

ig cy for t aca a8 payee, for. ‘my son’ Bade ae

8 1 ri eds igs tia Lise bk

tx 2 14

Per month. Her entitlement paused Radie Ar,'a benefits

bo be reduced to $00.20 per month le s hap,

As a result of statutory amen

my ts were increased to

die Ir. is and my wife 's benefits tose' to 54. 20 each month

In May 1968 1 and Mrs. Wright's benefits were

terminated beoause became 18 Years old and was no

longer living at home. .

0 ae nere. along with Radie Jr. 's and my applica-

tions fo

in February 1968

11 HED

benefits. Instead, the District of Columbia Department of

Public Welfare became payee for him ‘and effective from

May 1966 received $55.10 per until February 1968

when his benefits were reduoed

cause of Mrs. Wright's enti mit, )

Administration later found that Mrs. ‘Wright had received

an overpayment for a period of one month when Radie Jr.

was not living athome. aqa 8

In March 1970, effective January 1970, as u result of

further statutory changes my monthly check was increa:

to $127.70 and Clarence's benefits, which were still being

paid to the Department pf Public Welfare, rose to 668.40

per montn. Sita. wien doe. B N

6. I am presently unable to hold ‘a regular job. My physi-

cal disabilities include hypertension, cirrhosis of the liver,

abnormal liver function, swollén liver and hepatomegaly: I

visit the Freedman's Hospital Clinic twice per month and

4 i

DS N een Piss

1 ae J

1 er; : ts ‘eis >

through September 1969, and $162.24 from Oetober threum

6110,10 per month and.

—

began, to. receive Disability ‘Insurance, benefits of 650. 20

r ‘benefits, I also applied for benefits for my son

_ Clarence Edward Wright. I newer was payee for these

** The 8 : 1 5

„

HAH 1217

Hie 00

HAE 1

BL 25 itt 1

(Title Omitted in Printing]

disability“ pending

of “‘whether or not such individual's 7

or until the Secretary believes such

ceased’’, as authorized by 42 U.S. C. Section

leeren

mom Site re bas gol!

6109 Joa? bay wai % agoitaogp ofT (B)

defendant Secretary. | ä

questions of law and fact unite the claims

plaintiffs and all members of the class, as more

y described in plaintiff’s attached memorandum

and authorities in support of thie motion.

alti

community of interest in questions of law and

(4)

act between named plaintiffs and the class assures fair

and adequate representation of the class. 3

bers of the class predominate over the questions ‘affeuting

(9) Most recipients of Old Age, Survivors D

Insurance benefits have very meager ! ial reac

unaware of their legal rights and are unable to vie:

press their elaimis. Moreover, relegation of their claims to

individual litigations would result in an unreasonable mul-

tiplicity of suits and « corresponding burden on the onrt.

methods for fairly and efficiently the parties’

ights. ‘ i

/s/ Leona Yurdin

“Eat, ox

Washington, D. OC. 20003

/s/ EL. Calvin Golumbie

E. Our Goπ mine

36 N Street, 8. .

Washington, D. C. 20003

/8/ Edward E. Schwab

Epwann — *

4800 Deane Avenue,

Washington, D. C. 20019

i 299.4310 ffs» Fé i

[Certificate of Service Omitted im Printing]

. NW

* nns

‘Ave, 0

Ix Tue Unrrep Stites Disrmor Court

For Tue Disraict Or CoLumMBIA

i 2

Ram P. Waient, et. al, — — 2

n Plaintiiſs, tor 625.00 approved and filed

147

„ tT nin May 19, 1970. a

Defendant. By Lemuel Patterson

[Filed 14 May, 1970, Bosunr M. Sreanwe, Clerk]

Wuenzss the Court has considered plaintiffs’ complaint,

motion for a temporary restraining order, and affidavit. in

support thereof, motion for a preliminary injunction, and

it appears to the Court that plaintiffs Radie P. Wright

and Clarence Edward Wright will suffer substantial irrep-

arable injuries because of the losses of their sources of

income, unless the Court now grants provisional relief

pending a hearing and determination of plaintiffs’ motion

for a preliminary injunction, it is hereby: a,

1. Orban that the defendant Secre Robert H. Finch,

his agents and employees shall not put into effect or enforce

the provisions of 42 U.S.C. Sections 425, 405 (b), 421 (a)

and 421 (d) insofar as they authorize or require the def end-

A “hs . 12 * 2 iy

fending Bering od dender of init

mate dor a preliminary eee Ww per

r N rn

/e/ Oliver Gasch hei on Tu.

Se for the

‘District of C 7 bia 2

DATE: May. , 1970 ahi 0 bay . j os 5 4 i 999 ;

Ate

° Plaintiff shall give’ sdeurity: in ie eimn’e6:tireslyldivs

dollars ($25.00) for the payment of such costs and damages

as may be incurred or suffered by any party who is fund to .

e wrongtully exjelnéa or eee LEHI

A R COPY.

[Title Omitted in Printing

ra OF PAUL MERLIN. big n

ee p00 00800 8 hes

DISTRICT OF COLUMBIA * 1 eta

A, Paul Merlin, being first

(1) I am Chief of: Litigation, Social Security Division,

Office of the General Counsel, Department of Health, Edu-

cation and Welfare. | 2 65 eiu

(2) In connection with the above captioned action I

contacted this day by telephone Carl E. Spitler, Division

of Management and Appraisal, Bureau of Disability Insur-

ance, Social Security Administration, Department of

Health, Education and Welfare, in Baltimore, Maryland,

who advised me as follows: , |

(a) In 1969 there were approximately 40,000 cessations

of disability under Title II of the Social Security Act.

(pb) The average monthly benefits paid to disabled

workers and their families amounted to approximately

$250.00 per month per family.

(e) After initial determination, requests for recon-

sideration are processed in approximately 60 days.

(d) After reconsideration determinations requests for

hearing are processed in 60 to 90 days. a

(e) Based upon the foregoing estimates, I have been

advised. if the, Administration would have had to

pay ts to disabled workers. and their families

after a suspension or initial determination of cessation

until the administrative hearing was held, the cost

to the Social Security Trust Fund would have been

$10,060,000 per month or $40,000,000 to $50,000,000

4 7s, Paul Merlin

1 . itt nr. Paul Mean

Subeoribed and sworn to before me this 14th day of May,

/s/ Jeanne M. Swanson

- Notary Public

duly sworn, depose and say as

Matyi s

endant, by his attorney, the United States Attorney -

for the District of Columbia, opposes plaintiffs’ motion for

a preliminary injunction and application for convening a

three-judge. Court and respectfully moves the Court: to

dismiss this cause for lack of jurisdiction over the.subject

matter. In the alternative, defendant moves the Court to

grant summary judgment in its favor, on the ground there

is no genuine issue of material fact and defendant is en-

titled to judgment as a matter of law. 5 .

- In support of the motion for summary judgment, de-

fendant files herewith the affidavit of Samuel E. eh,

Deputy Director of the Bureau of Disability Insurance of

the Social Security Administration, Department of Health,

Education and Welfare. Defendant also incorporates by

reference the affidavit of Paul Merlin, Chief of Litigation,

Social Security Division, Office of the General ;

Department of Health, Education and Welfare, previously

filed with the Court. Nn it. benet

(a. se: Ninel

Tons A. FLANNERY | ,

| United States Attorney

/ Josep M:Hannow ie

Assistant United States "Attorney |

Je, FERS gp Mk

Lawrence S. Mancous”

: re Assistant United States Attorney

OF COUNSEL *

Paul Merlin 1

Chief of Litigation

Social Security Division | eae

Office of the General Counsel a as ave

Department of Health’ 9 6 nce Siam sing

_ Education and Welfare HisN huber

[Certificate of Servick Omitted in Printing] :

a |

(Pitt Omitted in Printing]

| WRATEMEWT OF MATERIAL PACTS.

, runner TO LOOAL BULE 9(h) 3

8 sae ne e sents inene |

are stated in the affidavit of Samuel Deputy

Director of the Burean of —

Security Administration, Department int Health, Educa-

tion and Welfare, and the affidavit of Paul Merlin, Chief: of

Litigation, Social Security Division, Office of the General

Counsel, Department of Health, men and Welfare

Nee an e

, i

Tuomas A. FLANNERY

Dnited States Attorney

2 M. 8 ye

Assistant United States anner

5 gi 4 | :

| * e eee .

5 Assistant United States Attorney

ob COUNSEL: ee

Paul Moxie „

Boda i! Lees 5

STATE OF: MARYLAND . ei, wen i,

dend n Crowe, bent daly worm depose and say

3 reau of |

Insurance of the Social Security Administrati the

responsible for administer.

ing the Disability Insurance Program. {a ‘contioetion ‘with ere NO

condition. He was unsur. as to when his disability had

begun and listed 1964 or 1965. In Item 21 of the application,

he agreed to notify the Social Security A tion

: work, or he applied for workmen’s compensatio: benefits.

(3) Tr —

Tne 11

further

— —

ning Disability

ay in

a Report

admitted

ince the estab-

ivity Report

had been employed

„ the plaintiff’s

any

employ

representative from

very few details of the plaintiff’s

Accordingly

155 98

1173

4728 2 }

Hit “ll fine

i tee inl 1 tt

prevented the claims

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Bag nid ,

2 a, 634: e l Bony

shag gait si:

Dee Director ons cs

nn bes; oh Wi et: i ele

Subscribed and sworn to before yh AL) brett

is; Vode

9 „ renn 1

Haft run IU

Notary Public WP JAI

My Commision expires Jay 1170 ’

et Jaf

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[Tithe Omitted im Printing)

uine issue, for summary judgment under Rule 56 of the

Federal Rules of Civil Procedure, on the grounds that there

is no genuine issye as to any material fact and that he is

entitled to judgment as a matter of law.

As part of thi ion, Plaintiff adopts, and by reference

incorporates he his memorandum in support of motion

for preliminary injunction as well as his memorandum

of points and authorities in support of application for

a three-judge court, previously filed with this Court.

544-5000

/s/ E. Calvin Golumbic

E. Catvix Gotvmaic

36 N Street, S.E.

Washington, D.C.

544-5000

/s/ Edward E. Schwab

Epwakp Scnwan

or Deane W N. E.

399-4310

2 Attorneys for Plaintiff .

(Certificate of Service Omitted im Printing]

Plaintiff horel

Bule 9(h) of the

to which there

(Certificate of Service Omitted in Printing]

[ Pitie Omitted in Printing}

PLAINTIFF'S OFPOSITION TO DEFENDANTS STATEMENT OF

MATERIAL FACTS IM SUPPORT OF MOTION FOR

| SUMMARY JUDGMENT

; Plaintifl, betet enlenedl, Megcby oppose im good faith

FFP Paul

Merlin, Chief of Litigation, Social Security Division, Office

of the General Counsél, Department of Health, Education

and Welfare (previously filed with the Court), specifically

touted in paragzaph (3) (0) thereot ;

/s/ Leona Turdin

Laon Tun a

36 N Street, S. E.

Washington, D. C.

544-5000 :

/s/ E. Calvin Golumbic -

E. Caim Goitvumsic

36 N Street, S. E.

Washington, D.C.

5445000

/s/ Edward E. Schwab

: EDWẽ Ian SouwsaB

4300 Deane Avenue, N. E.

r A :

1 2 Plaintiff

loo. = Service Omitted im Printing)

aa tHe pease (Om, Ae ne

it AEFIDANITIN SUPPROBT OF MOTION FORM 6): we

PRELIMINARY INJUNCTION |

+ n 1 .be d rei! i

a W MUHA TAGS ae in e

Diss) : ; ; . ( ; *

J. Clara’ Little Wright, being duly sworn, depose and

1 enn EU TOUS) munen

raised in Wadesboro, North Carolina and completed the

_ 10th grade in public school. I began doing farm work when

have lived together since that ti

3. Since the date my marriage I have not had a regular

job, either full time or part time. I am an out-patient at the

periods and not to do heavy lifting or any strenuous work.

Consequently, I have not been able to be employed. 75

4. My clothing primarily consists of about four nice

dresses, worn to attend church services, two or three house-

work dresses, one skirt and blouse purchased for Easter of

5. To the best of my knowledge, information and belief,

the facts stated by my husband in his affidavit and supple.

"mentary affidavit in support of his motions for a temporary

. „

— hii anita GAT

72 5 46

teow — N 0

anes — — Nell

‘tang onder ese ae en a.

1 4 | e, Clara Little Wright

PT NG Ath eR ieee a Clan. Lrrrin WIoRT

Surschinnb axp Swonx To bare me this 15 day of June

| William T. Matthews

Notary Public

My commission expires

Wi T. Matthews

Notary Public D. C.

My Commission Expires Sept. 14, 1971

[idle Omitted in Printing]

SUPPLEMENT TO AFFIDAVIT OF RADIE v. WRIGHT Iw SUPPORT

OF MOTION FOR PRELIMINARY INJUNCTION ©

I, Radie P. Wright, being duly sworn, depose and say the

following as a supplement to the affidavit previously sub-

mitted in support of my motions for a temporary restrain-

ing order and a imi injunction : rn 4

1. Since May 1966 when -I became entitled to Social

Security Disability Insurance benefits, I have never under-

stood that if I worked I might lose my disability insurance®@

benefits. From television and radio news annotincements

my understanding has been that President Nixon had

authorized all recipients of Federal Government. benefits

to work while they continued to receive their benefits. I

worked because my family needed more money to buy the

necessaries of life. My employments have caused me great .

physical discomfort and have worsened my state of health.

I é stopped working because I became too sick to continue.

Had I known that working would endanger my continued

receipt of disability insurance benefits, I would not have,

sought employments. .

I promptly complied with a request sent to me by the

Social Security Administration asking that I speak with

a claims representative about my disabled condition. As

I stated in my affidavit filed in suport of my motions for

‘a temporary restraining order and preliminary injunction,

I reported to the claims’ representative that I had not

worked since December 1969 because of my very poor physi-

cal condition, I also stated where I had worked and

described the nature of that work. The claims representa-

tive did not inform me that my work would cause me to lose

my disability benefits. The claims representative explained

that the Social Security Administration was simply inves-

tigating my condition. I was not told not to work, but have

been unable: to seek employment because of my disability,

2. On May 28, 1963, my youngest son Clarence Edward

Wright became a ward of the District of Columbia Depart-

ment of Public Welfare. Under order of the Juvenile Court

of the District of Columbia, he was sent to the Mapel Glen

facility in the District of Columbia Children’s Center in

Laurel, Maryland. He remained there two years and on

41d : Len.

Re scr 1070 bli ol ln al e

‘Tiving with me. and my wife Clara at our home. However,

laren takes medication daily and must make visits to

Saint Elizabeth’s. We have been informed that he can

remain with us as n visitor for one month. Thereafter, if the

ent of Public Welfare determines’ his. home and

community adjustment has been good, he may be permitted |

to remain with us indefinitely. c

3. Since May 1, 1970, when my Social Security Disability

benefits were terminated, my wife, my family and I have

suffered from not having any income with which to buy

the necessities of life. Our daily diet for the month of May

primarily consisted of beans, white potatoes, cab „some

other. greens, and some cold cereal. We quickly e austed . -

our small supply. of milk, butter, meat, cheese and

other high protein foods. en we had income from my

Social RBecurity Disability Insurance, we eat chicken, beef

stew, pork, | milk oe ge green vegetables. Because

of mx Gabe! liver other weaknesses, my doctors

have urged me to eat

foods. everyday, Since we have no money, I have been

unable ta. follow my doctors’ recommendations and con-

sequently have worsened my physical condition. The poor

diet we have been co ned to maintain has also caused

a worsening of my Claras physical e en eon.

N hatin! part time in 3 W wah

and. 2 he i is 0 to

5 KKK

one pair ol old Appen three old. short-sleeved white

eggs, meat and high protein ;

om oF

one

7. in son Clarenos s

‘ticles bad

hae

field

1775

* oo * a hy N ~~ — * he ~,

1 5 * 1 7 — 8 1 f

1 1 " : * 81

. 1 A 1 „ 8 UF eee

* » 1 gy N 8 1 2

7 2 MEX od — > * * 2 1

8 i 21 “ 15 io . * — 1 « 1

vont * 1 21 N . "Ba *

* 7 * 5 * Ane * 8 5

7 5 0 3 * * ii 25

5 Po wide 4 “ . 1

47 1 A — 49 ‘ 2

* * ae ro er 5 * 2 *

8 4 5 8 7 8 5 aa

* N 9 ya *

‘ : * é 1 72 a

. — te N .

* . 1 W ‘ . ee

ö — farnitare 1% out wy two

tresses, one small clothes bureau, three clothing ing

old sofas, about five chairs, one old second-hand te i =

two inexpensive radios, two old small ee a.

second-hand kitchen table with second-hand ¢ We

have two waste paper baskets, and very few d 3, pots

and pans. Our linen supply consists of a six towels,

four sheets, two pillows and four pillow cases. We have 1 +e 8

decent rugs, no lamps and no work or coffee tables.

tal, ‘Badie P. weet

Rm F

—

237

..Weicnt .-

a —— AND Sonn TO before me this lit ay ot June: ee

W gg Sali

Af Marlin BA on

Notary | FON,

My commission expires:

Notary en DG: rey e, t eae Oe vit 3

i My commission expires July 14, 1973... e 0 4 ; ws din ä ; 0 ta . 5

_lCertifete of ame op. ei

[Title Omitted im Printing]

SUPPLEMENT TO AFFIDAVITS OF nahm ?. WRIGHT IN SUPPORT

, OF MOTION FOR PRELIMINARY INJUNCTION

I, Radie P? Wright, bei ‘duly sworn, depose and say

the following as a supplem mint to the affidavits previously

submitted in support of my motions for a temporary re-

straining order and a preliminary injunction:

1. Since the fall of 1965, when I suffered a ber dane

and was admitted to Freedman s Hospital in the District

of Columbia, I have been consistently- advised by my con-

sulting physicians that I should not work because of a

severe permanent disability.

2. Only recently I requested an opinion in that respect,

through my counsel, from Emerson A. Williams, M.D., my

present consulting physician, and he advised by letter-to

Miss Leona Yurdin dated June 23, 1970 (attached hereto)

that I am still ase a aa due to my present physical

condition.

/s/ Radie P. Wicht

Rab P. Waicur

8 anp Sworn To before me this 30th day of July

1970.

/s/ Martin L. Casto

Notary Public

My commission expires: July 14, 1973 |

[Certificate of Serwice Omitted in Printing

9 1

—

2 *

* *

5 — ‘

„ .

[Title Omitted im Printing]

MOTION FOR LEAVE 20 FILE QOMPLADIT m irrERvENTION

: AND TO JOIN AS PARTY PLAINTIFF

Applicant tor a ohn Dillard Atkins, Jr., by f

his counsel, respectfully moves this Court for leave to file :

a complaint in intervention and to join as party plaintiff in

the akove-Captioned action, and in Sepport thereof states

as follow:

1. Applicant 8 complaint i in interv and affidavit i in

support thereof, attached hereto, as the facts upon

which his claim is based. |

2. Applicant’s claim and prayer for relief are parallel |

to those set forth in the cause presented to the Court by:

the Plaintiff Radie Wright.

3. Applicant is a member of a class in which all *

have been found entitled to receive Old Age, Survivors, and

Disability Insurance. benefits under Title II of the Social

Security Act, 42 U.S.C. Sections 401-429, and who face

preemptory, ex parte suspension or termination of their

payments upon an administrative determination of ineligi-

bility, prior to being afforded an opportunity for an eviden-

tiary hearing, pursuant to 42 U.S.C, Sections 405 (b),

4421 (a), 421 (d) and 425, in violation of rights guaranteed

under the Due Process Clause of the Fifth Amendment to

the United States Constitution. 4

4. It is in the applicant’s interest, and that of the Court,

to have the issue of 295 of the Social Seourit Sections 205(b),. 7

221(a), 221(d) and 225 of the Social ity Act (42 U.S.C.

Sections 405(b), 421(a), 421(d) and 425), insofar as they

authorize or require the defendant Secretary to terminate

Social Security Disability Insurance benefit payments with-

out adequate notice and prior opportunity for a fair hear:

ing, decided so as to avoid further confusion and repetitious

litigation. *

5. Applicant submits that no . to the parties

would result thrpngh ‘this his Cnt ring nr le

complaint in intervention: at this time.

We E. Calvin Gotuinbig

E. Gatvis Grun

36 N Street, S. E.

e *

2 e, Edward E. Schwab

r Ewan Scuwas’

4 4300 Deane Avenue, N.E.

1. Washington, D.C.

Ae for Applicant —

| [Certificate of Service Omitted in et

[Title Omitted in Printing]

| COMPLAINT IN VENTION ron DECLARATORY |

' JUDGMENT AND INJUNOTIVE RELIEF =

(Request for Three-Judge Court) |

ae : |

This is a complaint in intervention seeking deelaratory

injunctive relief to protect applicant-for-intervention, John

Dillard Atkins,, Jr.’s rights under Title II of the Social

Security Act, 42 U.S.C. Sections 401 et seq. and regulations

promulgated thereunder, and the due process clause of the

Fifth Amendment to the United States Constitution. This

action arises under the Constitution and laws of the Unitec

States, including the Fifth Amendment to the Constitution

and 42 U. S. C. Sections 402 (d) and 423. a

Jurisdiction of this court is invoked pursuant to 11 D.C.

Code, Section 521 (1967 ed.) and 28 U.S. C. Sections 1331,

1343 (4), 1361, 2201, 2282, and 2284. The amount in con-

troversy exceeds the sum of $10,000.00 exclusive of interest

and costs. | sigh aalinga |

This an appropriate case for the convening of a three-

judge court, pursuant to 28 U.S.C. Sections 2282 and 2284,

in that the applicant-for-intervention seeks an injunction

against the enforcement, operation and execution. of Acts

of Congress, 42 U.S.C. Sections 425, 405(b), 421(a) and

421(d) (a copy of which is attached hereto as Exhibit A),

insofar as these statutes authorize or require suspension on .

termination of financial benefits prior to granting adequate

notice.and opportunity to,be heard, on grounds of their

repugnance to the due procéss clause of the. Fifth Amend-

ment to the Constitution of the United States.

This action seeks an injunction and declaratory judgment

declaring unconstitutional and restraining the enforcement

I 54 7 g 1 . °

—

8 4 - ; e

of the aforesaid. Acts of Congress, on their face and as

applied and interpreted by defendant, on the grounds that

said statutes, and actions taken pursuant thereto, deny to

the applicant. for- intervention due process of law 5

tged by the Fifth Amendment to the United States Con-

stitution, in that said statutes deny to the applicant-for-

intervention reasonable and adequate notice of the grounds

of suspension or termination of his Disability Insurance

benefits, and deny to the applicant-for-intervention an

opportunity for a fair and proper evidentiary hearing

prior to the termination of his Disability Insurance benefits.

Applicant, John Dillard Atkins, Jr., is an adult citizen

of the United States and has been a domiciliary resident of

the State of Virginia since 1945: Applicant, John Dillard :

Atkins, Jr., has been married to Martha Ruth Atkins for

28 years and they have two adult children presently mar-

ried and living elsewhere. Applicant’s~-domiciliary resid-

ence is located at 2546 Military Road, Arlington, Virginia,

where his wife currently resides. Applicant resides at

present in the Veterans Nuministration lodge as a mental

patient of the Veterans Administration Hospital in Salem,

Virginia, where he has been hospitalized continuously from

January 18, 1969 and as a resident of the lodge since July

18. ee

ö *

— Wi | Ape

Applicant, John Dillard Atkins, Jr., has a history pf men-

tal disorder · and was admitted to the Veterans Administra-

tion Hospital in Perry Point, Md. in December 1966 under

a psychiatric diagnosis of extreme depression and has

remained under psychiatric care continuously until the

present time. He applied for social security disability bene-

fits in December 1966 and was awarded disability benefits :

in July 1967, after a six month initial waiting period, on

the bais of a determination, pursuant to 42 U.S. C. ions

423 (d) (1) (A), of his ‘‘inability to engage in any substantial

gainful activity by reason of (a) medicallydeterminable ,

physical or mental impairment. which can he expected to

result in death or. which has lasted or can be expected to

last for a continuous period of not less than 12 months.“

—

* \

> 2

56 ;

A ben nt is ‘a member of a class in which all members

{ tj a)

’ Ap 1 i ' | J TE. AE rc}

have been found entitled to receive Old Age, Survivors, and

Disability Tnsurance benefits under Title II of the Social

Security Act, 42 U.S. C. Sections 401-429. All of the mem-

bers of this class face peremptory, ex parte termination of

their payments upon an administrative determination of

ineligibility prior to being afforded an opportunity for an

~ evidentiary hearing. The authority to terminate payment

and then grant an opportunity for a hearing is granted by

42 U.S.C, Sections 405 (b), 421(a), and 421(d), and is in

violation of rights guaranteed under the Due Process

Clause of the Fifth Amendment. A substantial portion of

this class, including the named applicant, face pe remptory,

ex parte suspension of benefits if the defendant. believes

they may have ceased to be under a disability“, pending

his determination of whether ‘‘disability has ceaged or - |

until the Secretary believes that such disability had not

ceased’’ as authorized by 42 U.S. C. Section 425. Applicant

brings this action pursuant to Rule 23 of the Federal Rules

of Civil Procedure, on behalf of himself and all persons

' constituting the above class who are similarly situated. The

persons in the class are so numerous that joinder of all

members is impractical; there are questions, of law or fact

common. to the class; the claims of the representative par-

ties are typical of the class; and the representative parties

will fairly and adequately protect the interests of the class.

The prosecution of separate actions by or against individual

members of the class would create a risk of inconsistent or

varying adjudications with respect. to individual members

of the class; adjudications with respect to individual mem-

bers of the class.would, as a practical matter, be dispositive

of other members not parties to the adjudications; the

questions of law and fact common to the members of the

class predominate over any questions affecting only in-

dividual members; and a class action is superior to other

available methods for the fair and efficient adjudication

of the controversy. viii, NINA GHH H, oie Aline oni

vill

* Defendant Robert H. Finch is the Secretary of Health,

Education and Welfare and, as such, is charged with the

| 87 |

administration of Title II of the Social Securi Act, 42

Applicant, John Dillard Atkins, Jr., began part ti

employment at 14 years of age for the Atlantic and Pacific |

‘Tea Company. In 1934, at age 18, he began full time em-

ployment with the Civilian Conservation Corps and worked

in that capacity until August 1936. At that time he enrolled

at North Carolina State College at Raleigh, North Carolina

and graduated with a Bachelors Degree in June 1940.

- Applicant entered the Marine Corps in July 1940 as a com-

missioned officer (second lieutenant). He remained on

active status with the Marine Corps until April 1945. He.

did retire in 1943 because of a physical disability, but

remained on active duty until 1945. The disability was

diagnosed, at the Norfolk Naval Hospital in Portsmouth,

Virginia, as being psychiatric in nature and was apparently

the same or a related disability to that which he is now suf-

fering. In July 1945, applicant began working for the’

Virginia Forrest Service and continued that employment.

until April 1947. In September 1947, applicant commenced

teaching (mathematics) at a high school in Aldie, Virginia.

He completed the school year in June 1948 and at that time

commenced a Masters degree program at George Washing-

ton University. The George Washington University

awarded a Master of Arts degree in education in 1949. In

September 1949, applicant, John Dillard Atkins, J fs hoges

working in the Arlington County School system as a er

and continued employment in that capacity until December

1966. In the spring of 1966, applicant voluntarily entered

Bethesda Naval Hospital in the Neuro- psychiatrie ward for

approximately three months. In the fall 6f 1966, he began

teaching again in Arlington County and continued until

December. 1966 whereupon he completed his last employ-

ment in any capacity whatsoever.

. 1. ; J } 5 g 1 x

AE i Applicant,’ John Dillard Atkins, Jr. left hi teaching

Position with the Arlington County School system in Des-

2 hee ee Sr ae 5 i

- ember 1966 in order to enter the Veterans Administration

(mental) Hospital at Perry Point, Maryland because of

*: severe psychiatric: problems. He remained at the hospital

in Perry Point until January 7, 1969. On J anuary 8, 1969,

applicant was committed by the Arlington’ County Court,

Judge. Dodge, to the Western State Hospital in Staunton,

, Virginia and later transferred, on J anuary 18, 1969, to the

Veterans Administration Hospital in Salem, Virginia,

where he has been continuously and is still a patient at this

time. On April 10, 1967, applicant’s physician at the

Veterans Administration Hospital in Perry Point, Mary-

land, diagnosed him as essentially totally and permanentiy

„disabled. This diagnosis was confirmed by letter to the

Virginia Supplemental Retirement System dated April

10, 1967. The prognosis was, in part, that:

It) is highly unlikely that he can ever reintegrate to

a level that would qualify him to return to active

teaching. It is even inconsiderably at this time that

the patient will ever be able to make a responsible

social adjustment living outside of the peychiatric hos-

pital. * — 1 N N 4

See Exhibit A attached hereto. This | romaéele was made on

the basis of continuous psychiatrié bal ment at the Perry

Point Veterans Administration Hospital for approximately

one year and a half (December 1966 until April 1967).

- Due to applicant’s mental condition from December (1966

until the present, all of which time he has been institu-

tionalized as a mental patient, it has been impossible for

him to continue employment as a teacher or in any other

capacity. In December 1966 applicant applied for ‘social

security disability benefits and was awarded disability ~

benefits in July E afte a six month initial waiting

Period 8 Ki : or.

4 XI

_ Applicant, J ohn Dillard Atkins, Jr., continued to receive

‘social security disability benefits from July 1967 until

February 3, 1970 when he received a letter of that date -

from the Social Security ee advising ance |

pertinent part, that:

The medical evidence in your case iphowe that your

. @

59 5 Ae he

able to do substantial gainful work in January 1970.

* ‘Accordingly, the last disability benefit to which you

are entitled is for the month of March 1970. 5 Exhibit B

5 hereto. 2

, II wi,

On. February 4, 1970, (one day after receipt of the letter

o termination), applicant, John Dillard Atkins, Jr., di-

rected a letter to the Social Security Administration advis-

condition has improved to the xg that you became ‘ >

ing them that, contrary to their assertion that he was able

to do. substantia) gainful work in January 1970, hi a

date of gainful employment was December 13, 1

that he is now and has continuously been a patient at "he

Veterans Hospital in Salem, Virginia sjnce January 16,

1969. He further advised that: I h a 2

charged from that hospital:’’ See Exhibit C attached hereto.

On the day after recipt of the’letter terminating ap icant’s

social security benefits; February 4, 1970, a phlicant’ wife

contacted the office of Congressman Joel T. Broyhill, —

es-

questing some form of help. In response to her requ

never been Ae.

Congressman. Broyhill: sent a telegram on February x

1970 to the Social Security Administration advising them

that the applicant was totally disabled and requesting that

his office be informed concerning the applicant’s status. Ex-

hibit D attached hereto. Furthermore, shortly after ‘receiv-

ing the letter of termination dated February 4, 1970, ap-

plicant’ s wife telephoned the Social Security Administra-

tion in three different. instances. In each instance ‘she

talked to a different person. On the last occasion, she e-

. plained to Commissioner Ball’s Assistant that if she and

her husband (applicant herein) did not know if there was

a ot Ae

any chance of reinstatement or even reconsideration by 2 '

April 1, 1970, it would be necessary to sell their home.

: Thereafter, ‘applicant and his wife directed approximately

ten letters to the Social Security Administration requesting

information in regard to applicant’ s status. and whether

he would be reinstated or even receive a reconsideration

by April 1, 1970, without.even receiving any response or re-

- ply by the Administration other than a letter to Congress-

man Broyhill’s office advising that applicant's termination

Was under investigation, but failing to comment on whether

£ A

or not a decision would be reached eee

een ee a *

/ II

On Arn 25 1970, the Social Security Administration ad-

vised Congressmen "Broyhill by telegram that they had de-

termined that applicant, John Dillard Atkins, Jr., was still

ae en ee Exhibit E attached

reto

tion Hospital, Salem, Virginia, residing in the Veterans

Administration lodge as a mental patient.

XV *

Nevertheless, e was forced to undergo the severe

mental strain of fearing the imminent termination of his

reviewed by that time. \

XVI ,

on April 30, 1970, applicant received a letter from the

Social Security Administration, dated April-29, 1970 (six

, Congreagan Broyail ytelogra), cht hat:

It appears that, on the basis. of past experience, applicant .

can look forward, at that tithe te the prertert f png,

possible termination (or ending investigation)

The consequences of the Soci Security Administration’s

determination to terminate applicant ’s disability benefits by

monthly income consiats of statutory benefits received from

social security, V.A. compensation and Virginia State re-

tirement. The prospective loss of his social security benefits

would have seriously impaired his ability to maintain his

current obligations. Consequently, his wife took a third

trust on their house on March 17, 1970, and later sold their

home on April 5, 1970. Exhibit G attached hereto,

a» 7, ae

illness (the last 34 years), it appears that there is little

chance of applicant being able to assume gainful employ-

his wife suff ere mental anguish and immediate, con-

tinuing and i rable injury to their health.

pendents. Persons who meet the statutory criteria (42

U.S.C. Sections 402(d) and 423), as interpreted in the

Department of Health, Education and Welfare regula-

tions, receive disability insurance payments as a matter of

statutory entitlement.

| XXI

Defendant’s preemptory, ex parte action suspending or

terminating applicant’s social security disability insurance

benefits violates’ the Due Process Clause of the Fifth

Amendment to the United States Constitution in that it

effectively suspended or terminated and withheld benefits

essential to life itself without affording applicant, John

. Dillard Atkins, Jr., reasonable and adequate notice as well

as an opportunity for a prior fair hearing.

XXII

Sections 205 (b), 221 (a), 221 (d) and 225 of the Social

Security Act, 42 U.S.C: Sections 405 (b), 421(a), 421(d)

and 425 are invalid and repugnant to the Due Process

Clause of the Fifth Amendment to the United States Con-

stitution insofar as they authorize or require the defendant

Secretary to take preemptory, ex parte action suspending or

terminating benefits without affording reasonable and ade-

quate notice and an opportunity for a prior fair hearing.

‘Wuenerorz, applicant-for-intervention respectfully prays

that this Court: |

1. Assume jurisdiction of this case ; pcan.

2. Convene a three-judge Court to hear this cause;

3. Enter a Preliminary and Permanent Injunction (A)

restraining the operation and enforcement of 42 U.S. C. Sec-

tions 405 (b), 421 (a), 421 (d) and 425 insofar as they author-

ize or require the defendant Secretary to put into effect the

suspension or termination of social security disability in-

surance benefits to applicant, and (B) requiring the de-

fendant Secretary to continue benefit payments to applicant

until notice and opportunity for a hearing meeting Due

Process standards are afforded ;

63 —

insurance benefits payments without adequate. notice and

prior opportunity for a fair hearing: ize tf 7 ae

5. Certify applicant and those who are similarly situated

as a class; pursuant to Rule 23 of the Federal Rules of Civil

Procedure, in respect to all rights and liabilities involved

in this action;

6. Declare the other rights and relations of the parties

8 2 g

7. Award Costs to applicant; and , 15

8. Enter such other further relief as the Court may deem ,

just and appropriate. ay

/8/ John Dillard Atkins, Jr.

Jonx Dnunůd Arxixs, Jr.

Js, Leona Yurdin

Lzona Yurprx

36 N Street, S. E.

Washington, D.C. 20003

544-5000

Js, E. Calvin Golumbic

E. Cal y Gotumsic 2

36 N Street, S.E. ’

Washington, D.C. 20003

/s/ Edward E. Schwab:

Epwarp Scuwas

399-4310 — ae eee

Attorneys for applicant for Intervention

DISTRICT OF COLUMBIA, ss: |

I, John Dillard Atkins, Jr., being first duly sworn on

oath, depose and say that I have read the foregoing com-

plaint in intervention by me subscribed and that the facts

stated therein are true to the best of my knowledge, in-

formation and belief.

/s/ John D. Atkins, Jr.

' Joun D. Arms, In.

Susscarsp AND Sworn To before me this 16th day of June

1970. |

/s/ Dorothy R. Cox

‘Notary Public

My commission expires: March 25, 1973.

[Certificate of Service Omitted in Printing) —

SES.-17 : . 741 6 1 *

1 of 2 a b 60

VoINIA SUrriementat, Rermement System

300 Nn BUEDING, = 5

Richmond, Virginia

REPORT OF PHYSICIAN.

Dear Doctor 7505 „ vou are authorized

to fill out this form and forward same to the Virginia Sup -

plemental Retirement. System, P. O. Box 3X, Richmond,

Virginia.

/s/ John D. Atkins, Jr. a

Signature of Applicant

4-10-67

Date N Address

a -*

Axove To Bz Execurep anp SIGNED BY APPLICANT For D-

ABILITY ReTmement Arm

To tHe Puysician Renperine THE Fo.towine Report:

It is important that you make a full report of the patient’s

illness and-the details of your findings, so that the Medical

Board of the Virginia Supplemental Retirement System

whose duty it is to review the report and render an opinion

will have a-clear-eut picture of the “patient’s condition.

Simply stating Larthritis“, “heart disease“, nervous

trouble“, ete., without going into „ 2h of the patient ꝰs

complaints and objective findings, the degree of disability

and a reasonably comprehensive statement as to the prog-

nosis and treatment, does not give sufficient information

on which to adequately evaluate thé report. Lack of suffi-

cient medical evidence will result in the Medical Board not

being able to promptly and properly determine the case

of the above applicant for disability retirement.

Your complete cooperation will avoid delay and be ap-

preciated. -

I hereby certify Mr. John D. Atkins has been under my

professional care since 12-14-66,

1. DIAGNOSIS: Depressive reaction.

2. TREAMENT: This patient has been under continuous

psychiatrie treatment here at Perry

„ Point: Veterans: Administration and has

received intensive therapy and also has

3. PROGNOSIS:

. . i

been treated with various tranquilizers

and mood affecting The patient

remains an extremely ibited and

anxious man whose character structures

no longer is successful in warding off the

continuing decompensation and essen-

- tially totally disability.

In view of the extensive efforts, without |

success, that this man has experienced

are very real regression and also he may

have made a satisfactory adjustment.“

He was a teacher some years ago, but is

highly unlikely that he can ever reinte-

grate to a level that’ would’ qualify him

to return to active teaching. It is even

inconsiderably at this time that the pa-

tient will ever be able to make a re-

sponsible social adjustment living out-

side of the psychiatrie hospital.

Kindly mail 1 to Virginia Supplemental Retirement

System, es O. Box 3X, Richmond, Virginia: ,

4-10-67

76 W. M. Harris, M. D.

. W. M. HAnnIs, M.D.

Signature of Physician

William M. Harris, M.D.

Type or Print Name of Physician

VAH, Faber Point, Maryland 21902

ithe Address.

Department or HALTER, Epvcation, anp WELFARE

_ SOCIAL SECURITY ADMINISTRATION

Baltimore, Maryland 21241

+ |, Refer to: 246-192-5511 HA

When Writing To:

Social Security Offoe

Alexandria VA:

| February 3, 1970

John T Adkins Jr ee

2546 Military Rd N

__Arlington VA 22205

The law provides that an individual’s disability period

shall end if his condition improves so that he becomes able

to do substantial 8 The law also provides that

an individual will receive his benefit payments -for the

month his disability ends and the following two months.

The medical evidence in your case shows that your condi- ~

tion has improved to the extent that you became able to do

substantial gainful work in J anuary 1970. Accordingly, the

last disability benefit to which you are entitled is for the

month of March 1970. :

The decision on your claim was made by the Social Seeurity

Administration on the basis of a disability determination

by an agenęy of the State in which you live. Physicians and

other trained disability evaluation personnel in the State

agency participated in making this determination.

If your condition again prevents you from doing substantial

gainful -work before age 65, you should get in touch with

your social security office about filing a new application

for disability benefits. ; f N

If you believe that this determination is not correct, you

may request that your case be re-examined. If you want

this reconsideration, you must request it not later than

6 months from the date of this letter; You may make any

such request through your social security office. If addi-

tional evidence is available, you should submit it with your

request. Please read the enclosed leaflet for a full explana-

67 Behe

don of your right to question the determination made on

your claim.

If you have any questions about your claim, you should get

in touch with your social security office. If you ae in per-

son, please take this notice with you.

"Sincerely yours,

/s/ F. H. Sheel

F. H. Seer

Director, Division of Evaluation n

and Aut horieatioſ ö

Bureau of Disability Insurance

Enclosure: .

SSI-58

pee : 542 Walnut Ave, 1

eon Roanoke, Va. 24016

2 t ROU Moar AP February 4, 1970 8 8

U. S. De irtment of Health, Education 1

and Welfare Tei n b ü wade dak

Social Security Administration

Alexandria, Va.

Gentlemen: . Attention: Mr. Colins

My name is John D. Atkins, Jr., and my Social Security

number is 246-12-5511. - , |

Please refer to your letter of February 3, 1970, addressed

to John T. Adkins, Jr. at 2546 Military Road, Arlington,

Va. Note that my middle initial is De; not T“. Note

also that I live at 542 Walnut Ave., S. W., Roanoke, Va.;

mot at 2546 Military Road, Arlington, Va. 5

‘Your letter says that I am gainfully employed and have

been for some time. My last date of gainful employment

was December 13, 1966. At that time I left the employ of

the Arlington. County, Virginia, School Board. I was on

sick leave until about the second week of February, 1966,

- but I did not earn any salary after that date. i

J am still a patient at the Veterans Hospital, Salem, Va.,

and have been a patient there since J anuary 16, 1969. I have

never been discharged from that hospital. |

Since there is an error in my name as shown in your letter

of February 3, 1970, someone may be posting earnings to

my account in error. Please investigate. hee

If Ihave the right to appeal your decision, this is my notice

of an appeal. Lam asking officials at the hospital where I am

a patient to send you substantiating materials. Their state-

ments will follow. ap ,

at substantial gainful work before you take away their

benefits. I have had no substantial gainful work since De-

7 5

es *e

4e : . f 8

: 4 8 70

. 1

oember 13, 1966, yet you tell me on February 3, 1970, that

you will stop payments to me in March, 1970. I request

that you:give me the normal time of three months in which

to show that someone has made a mistake. n

Sincerely, ;

John D. Atkins, Jr.

Senet owe,

OO SS ermtuene and

8 ; : * : ; hk ‘8 ;

ean Mes SEP a ee vy! a

2 D

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RECEIVED, Yen 23, 1107 AM, 70, GSA-REGION 3, BCS,

ss COMMUNICATIONS

PAAULIAZ RUEVDESD318 1131412-UUUU-RUEVDAG.

HWSS

FM ROBERT M BALL COMMISSIONER OF SOCIAL

BALTIMORE MARYLAND

TO HONORABLE JOEL T. BROYHILL HOUSE OF

REPRESENTATIVES WASHINGTON D C

BT .

DO NOT PHONE |

RE MR. JOHN D ATKINS, JR. 2546 MILITARY ROAD

ARLINGTON VA 22207

u NUMBER 246 12 5511

—

IT HAS BEEN DETERMINED MR. ATKINS IS STILL

DISABLED, WITHIN THE MEANING OF THE LAW.

BENEFITS HAVE BEEN. REINSTATED EFF 4-1-70.

CK FOR $173.90 REPRESENTING HIS APRIL BENE.

FIT WILL BE SENT EARLY IN MAY.

BT ; mi

John D. Atkins Jr. | 1

4 — VA 22207

we recently reviewed the evidence-in your disability claim

and find that you are still disabled. Therefore, your benefit

payments will continue.

Your next social security check will ‘be * $173.90. This

represents payment through April 1970. You wi receive

this check shortly. “After that, your check wi fpr

$173.90 each month. . ws

The evidence we have indicates your condition may improve

in the future. Thus, we scheduled your claim for another

review about September 1971. We will be in touch with you

at that time, or earlier if you return to work. Please notify

us promptly if you return to any type of work.

If you have questions about this notice or other social :

security matters, you should get in touch with your social

5 security office. If you call in person, please take this notice

with you. ;

Assistant Director :

‘Bureau of Disability Insurance

* n pus

| d err

e 2 | amas Fifa BO pa Wo pee a 0 2 ies

Rea. Aa¥ion 7 Ty „ Sf “WANED d Rare S O 00 ome

— - 3

— SURV 1.7, d De

w weaty ruten A Fey n ö

„ SHONI 8 NONNVHS

seveyoind ey) pu peowrd

yes 2282

ee ee wee YORE ah en Waaed on Tees die ee ee ul i 0% & Weg AUR JO 5

sedewep 305 en 2 ie pe ede 20. in fe pus tales da ‘porpowiar oq c i

re vA A , Oy) 8

wee.

Nb t

Virginia. |

I was formerly employed by the Federal Government for

in that status continually from that time and am currently

receiving civil service disability benefits as a total perma-

nently disabled individual. He

In March 1965, I was diagnosed, at the Bethesda Naval

time.

Due to my mental disorder, I am presently unable to

work. | | b

/8/ Martha Ruth Atkins

| MTR Rur Arzms

__ Supscetsep axp Sworn 10 before me this 16th day of

J une 1970. — ans

/8/ Dorothy R. Cox

| Notary Public, VA.

My commission expires March 25, 1973. |

(Certificate of Service Omitted in Printing]

[Title Omitted in Printing]

AFFIDAVIT IX SUPPORT OF-COMPLAINT IN INTERVENTION

_ AND MOTION ron A PRELIMINARY INJUNCTION

I, John Dillard Atkins, Jr., being first duly sworn, depose

and say that I am ‘fifty-three years of age, a citizen of the

United States and a resident of Virginia since 1945. I have

been married to Martha Ruth Atkins for 28 years and we

have two adult children presently married and living else-

where. My domiciliary residence is located at 2546 Military

Road, Arlington, Virginia, where my wife currently resides.

My present residence is located in the Veterans Administra-

tion lodge, 542 Walnut Avenue, S.W., Roanoke, Virginia.

I am presently’a patient in the Veterans Administration

hospital in Salem, Virginia where I have been hospitalized

continuously from January 15, 1969. On July 18, 1969, the

hospital sent me to the Veterans Administration lodge (the

lodge is a half-way house of sorts) on a trial visit, where I

have remained until this time. I am still a patient of the

Veterans Administration hospital in Salem, Virginia and,

even though I am permitted to reside in the lodge, I have

never been released. There are seven other residents in

the lodge, all with psychiatric disorders. I was initially

committed to the Veterans Administration Hospital in

Salem, Virginia under a psychiatric diagnosis of extreme

depression. b ie

In December 1966, I applied for social security disability

benefits and was awarded disability benefits in July 1967,

after a six month waiting period. 12

My employment history began at 14 years of age when I

commenced part time employment for the Atlantic and

Pacific Tea Company. In 1934, at age 18, I began full time

‘employment with the Civilian Conservation Corps and

worked in that capacity until August 1936. At that time I

enrolled at North Carolina State College at Raleigh, North

Carolina and graduated with a Bachelors Degree in June

I entered the Marine Corps in July 1940 as a commis-

sioned officer (second lieutenant). I remained on active

status with the Marine Corps until April 1945. I did retire

in 1943 because of a physical disability, but remained on

September 1947, I commenced

high school in Aldrie, Virginia. I completed the school year .

in June 1948 and at that time commenced a Masters Degree

program at George W. lington University. J attended

rge Washington University as a full time and

received a Master of Arts Degree in education in 1949

In September 1949, I began work in the County

I voluntarily entered Bethesda Naval: Hospital in the

neuro-psychiatric ward for approximately’ three months.

f I began I i :

on January 8 1969, I was committed by the Arlington

County Court, Judge Dodge, to the Western State Hospital

by letter to the Virginia Supplemental Reti ent 5

dated April 10, 1967. The Prognosis was, in part, that it

| 80

' psychiatrist) interviewed me for the purose of investigating

to determine if, I were eligible for continued disability.

During this one hour interview, Dr. Moser read summaries

on extracts} of my original records for approximately

_ twenty minutes and.examined me for approximately thirty

minutes. It appears that on the basis of this interview and

examination I was notified by the Social Security Admin-

istration, on February 3, 1970, that the medical evidence

in my case shows that my condition had improved to the

extent that I was able to do substantial gainful employment

in January 1970, Accordingly,.the last disability benefit to

which I was entitled was for the month of March 1970.

. Exhibit B attached to the complaint in intervention.

On February 4, 1970, I directed a letter to the Social

Security Administration advising them that, contrary to

their assertion that I was able to do substantial gainful

work in January 1970, my last date of gainful employment

was December 13, 1966 and that I am now and have con-

tinously been a patient at the Veterans Hospital, Salem,

Virginia since January 16, 1969. I have, as of this date,

never been discharged from that hospital. See Exhibit C at-

tached to complaint in intervention. ; bhi

On the day after receipt of the letter terminating my

social security benefits, February 4, 1970, my wife contacted

the office of Congressman Joel T. Broyhill, requesting some

form of help. In response to our request, Congressman

Broyhill sent a telegram on February 5, 1970 to the Social

Security Administration advising them that I was ‘totally

disabled and requesting that his office be informed concern-

ing my status. Exhibit D attached to complaint in inter-

vention. 5 i; dies 2711

In support of this effort, I requested Dr. Robert H.

Hickey, psychologist and Dr. John Garner, M.D., both lo-

cated, at the Veterans Administration Hospital to send

letters, to the Social Security Administration concerning

my condition. Their letters indicated that I should never

teach again but voiced no conclusion in respect to other

forms of employment. S de DEN bee eee

Shortly. after receiving the letter of termination dated

_ February 3, 1970, my wife telephoned the Social Security

Administration in three different instances. In each instance

she talked: to a different person. On the last occasion, my

wife explained to Commissioner’s Ball’s Assistant that if

— my — — my current obligations.

Conseqnently, my wife took: third trust on our house on

March 17, 1% with Shannon and Luchs Company, for

$6,000.00 and sold our bome on April — Exhibit G

attached to the complaint for intervention.

; oh { +fe/ John D. Atkins, Jr.

) Joux D. Arxtws, Jn.

te ee

* f been n Oe ‘

1 Notary Public, VA.

. March 26, 1978.

derte. of Service Omitted in Printing)

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class. Plaintiff and applicant have not met the

of a class action. Rule 23(a),F BCiw.P. «0 .

For the f reasons applicant’s — 8

vene as a and the motions of plaintiff and ap

enn eines Setion shove nan a

Urin Statss Distaicr Cour

Fon Tun Disraicr or Column

PESO UA Kev dh A hiv 4 Sia Ss

Base J l oy.

—— un 1 Action

F. RF.

RoszatH.Fixcn, 0. 1457-70

“ [Filed, Ang A, 170 Rosser M. Sreaans, Clerk]

shes op est a. Ze : ’

Upon consideration of the motion of John D. Atkins for

leave to intervene as party-plaintiff and upon further

| considetation of the application. of plaintiff Radie. P.

NENA

unger Rule 23(b) (2), Fed. R. Civ. P., it is by the Court this

21st day of August, 1970.

r 23 for te to intervene be 2 400 and

under provisions 24 (b), and

ii farben

Onpznzp that the of plaintiff Radie P. Wright

that the action be as a class action be and. the

same hereby is ted under the ee of Rule

e, 25

/s/ Oliver Gasch

Judge

17 ; . : * Me

[Title Omittedin’ Printing) |

: Sh OB eed ——

STATE r OF BaL Tinea as ; |

COUNTY OF BALTIMORE: thee gota Be

Director of the an Nan een eal

Security Administration. In my official capacity I have

and ae *

Health, Education, and Welfare, pursuant, to Title 42,

United Statoe Code; section 106 14 py fe |

4% Lectioß 205(a) of the Social Security „Ast, ne ey .

42 U. S. C. A., section 405 (a) Provides that: Aco: wee,

Seotion

421 (a), provides in pertinent part:

a) In the case of any individual, the determination

oF tether or not he is under 3 disability 2 * * and

2 oY tre No..4, se-

tion 20 C.F.B. 1527, promulgated by the Secretary

parvsant te the statutory authority of seation 205(a) of the

ate b) He engages in any work activity or there is un

: 2 ˙ tivity ob his iraingy

1961 , 5 E

„ . 4 — 4 7 K 1 <> + 4 *

ef: jor rh ite. 4 SA tht oa Te) * 7

K. has been in 4 hospital dr dima,

snd is dlocharged ene #8 nn

Social ry rity" ene, 3 E a 4 Magis, i

tion 404.1089, 20 C. F. R. 441855 Provides ao 2 &

part:

such severity as to prevent him from 3

substantial gainfal activity or, in the ease of dtoabine

%) The month in which the fan. | rar sy,

his ability to engage in beten aay oat ge

to til in I 1 51 :

ties comparable to those of some e in

Monthly ‘benefits were malled to John D. Atkins, Ir. at the

VA al; Perry Point, Maryland where Mr. Atkins was

1 Mr. Atkins was advised at the time

ability benefits. Hf W wat set st CT See Bt, oe

(2) In September 1969, when John Atkins’ August, 1969

benefit check was returned from the Perry Point Hospital

as undeliverable, the Administration began a continuing

disability investigation in ‘accordance with Social Security.

Regulations No. 4, section 404.1528, supra. This investiga-

tion was conducted by the Towson, Maryland Social Se-

gurity Office. At that time the disability claim folder (i.e.

a folder containing all pertinent documents on an given

social security claim) was forwarded by the Social Security

Administration Bureau of Disability Insurance, Baltimore,

d, to the Towson, Maryland District Office. The

Perry Point Hospital advised the Administration that Mr.

Atkins had been discharged January 7, 1969. On October 30,

1969 Mr. Atkins’ wife advised that Mr. Atkins was a patient

at the VA Hospital in Salem, Virginia but living as an out-

patient with seven other patients at 542 S. W. Walnut

Avenue, Roanoke, Virginia. : . 3) oa

(3) A Social Security Administration representative in.

terviewed Mr. Atkins on November 7, 1969. Mr, Atkins told

‘the interviewer that after leaving the Perry Point Hospital

on January 7, 1969, he entered the Western State Hospital,

Staunton, Virginia, and later entered the VA Hospital in

on January 18, 1969. Mr. Atkins further stated that

on July 22, 1969 he left the Salem Hospital on ‘trial visit“

status and-currently resided with seven other patients at

the Roanoke, Virginia address as part of a therapy and

treatment program sponsored by the hospital. At this time

Mr. Atkins requested on a standard Social Security Admin-

i form used for this purpose, that his checks be

mailed to his home address in Arlington, Virginia.

-. (4) The Bureau of Disability. Insurance, Baltimor:

dence: from the Western State Hospital and the Salem

‘ary 16, 1970 that the

January, 1970. This

ground speci i

: ; * o 41 —

ity clair nie BOLI ui. ;

OS ty chk“ p sms

92° .

: fo-pay the August and September. checks with-

folder. The combined checks.were sent to

11, 1959. ai hs OF KER FOR: i

ection 228(a) of the Social Security Act, 42 U.S.C.

a), which des that. entitlement to disability in-

th) ee

Hy At vy

„nn

MN Hh

: .

DU lings

„

bucitacs * 6e!

—

117 „M „ A GD

nen Senior

e Seen

udge,

nasal Sati 208

115

+ 1110

12112 Ha ieee

— 45 1413 85 shi Pees ELE EE di

eit 1 fiene

, 97 P i .

without due process of law.' ‘That section ofthe t.

FVV

determined by the circumstances of the particular |

situation, The determination of the appropriateness

of the procedures requires balancing the governmental

function involved against the private interest af-

. fected.” The Court stated the test in Goldberg: “The

extent to which procedural due process must be af-

forded the recipient is influenced by the extent to

which he may be ‘condemned to suffer grievous loss,’

and depends upon whether the recipient’s interest in

avoiding that loss outweighs the governmental interest

in summary ad judieation.“ In Goldberg, the crucial

factor was that “termination of aid pending resolu-

tion of a controversy over eligibility may deprive an

nae ee ge eter ale ieee As Allnlaenen eb

y for Title I and Title IV benefits is based on the ]

cris de yr Greene v. Karon.

on fact finding, the evi-

? ee een case must

be disclosed to the individual so that he has

an opportunity to show that it is untrue. While

„this is important in the case of documentary

| evidence, it is even more important where evi-

- dence consists of the testimony of individuals

whose memory might be faulty or who in fact,

might be perjurors or persons. motivated by

malice, vindictiveness, intolerance, prejudice, or

jealousy. We have formalized these proteetions

eee

examination.“

The evidentiary basis for the determination of eligi-

bility for welfare benefits which was considered by the

Court in Goldberg in delineating the form of hear-

ing required in that case differs from the situation

presented here. The regulations of the Social Se-

curity Administration provide that disability benefits

can be terminated when medical or other evidence

indicates that the impairment has ceased or when

the individual has engaged in substantial gainful em-

ployment. The evidence to support these findings con-

ene

1 860 US. 474 (1987).

Id, 406 —

pt baring emma; th Contre om it |

- „ „

fundamental due process to the recipient before this

8 ae

Dette

* * ‘

60 I am authorized to state

pt? 44

Oourt rules on the adequacy of the details of that

regula-

§ 425, since

requires. These regula-

hearing before an

require that when an initial determination is made that.

pplies be notified of the

to request reconsideration. 20- C. F. R.

§ 404.916. These

right to s

20 C. F. R.

to actions under 42 U.S.C

HEF

2241115

8 f x

15 lei

n the determination a

‘of the basis of the

ere

‘te re ts

Burnita SHELTON MA ;

.. United States Senior District Judge.

berge 2 71 10 er i AE SS

Pursuant to the. opinion filed i in this case on Jan-

uary 6, 1971, which opinion is adopted as the Court's

| Findings of, Fact and Conclusions of Law, it is by

the Court this 12th day of February, 1971.

ORDERED that Section 225 of the Social Security

Act be and it is hereby declared unconstitutional and

void in that it denies recipients procedural due proc-

ess in suspension proceedings, and it is further

_ . ORDERED that plaintiff Radie Wright continue

to receive Social Security Disability benefits until

such time as his ‘eligibility is suspended 1 in accordance

with the procedures outlined in the Mf eet of Ji an-

uarxy 6, 1971, and it is further ¢

_ ORDERED that no Social en Disability ben-

eficiary be suspended without being afforded adequate

notice and pportunity to partieipate in the de-

termination proceedings, and it is further a

'_. -. ORDERED that the Social Security Administration ae

promulgate regulations governing the suspension of

8 disability benefits to — which shall conform

Judgment

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[Title Omitted in Printing]

- be unconstitutional and ordering that no social security

disability beneficiary be suspended without bei afforded

notice and an opportunity to participate in the

appeal therefrom. | pe

In support of this motion, the Court, is reapectfully

referred to the memorandum filed herewith.

* Respectfully submitted,

9 it

L. Pararox Garay, III

_- Assistant Attorney General

. Tomas A. Fianyzry

United States Attorney

/8/

Hastanp F. Learners

Js/ 1

„ Daym Epsrem

Attorneys, Department of Justice

Attorneys for Defendant ~

106

* 2 sa

[Title Omitted iw Pr

ane Se Aa )

Plaintiffs, by their undersigned attorneys, respectfully

oppose defendant’s motion to stay the Court’s Order: ‘dated

Febraary 12, 1971 pending appeal therefrom. =. oo.

Plaintiffs have stated 8 for their — in a

memorandum filed herewith, and ‘Teopactfully: refer: the

Court to that memorandum. ie ;

Respectfully submitted,

Js, E. Calvin Golumbie

E. Catvix Gotumsic

Lawcor Project

Institute for Studies in Justice and

Social Behavior

American University Lay-School

Washington, D.C. 20016

686-2630 --

/s/ Edward E. Schwab

EDwand E. Scuwas

Neighborhood Legal Services Program

36 N Street, S. E. 5

Washington, D. O. 20003

544-5000

Attorneys for Plaintiffs °°

\ “(Certificate of Service Omitted in Printing *

107

true Omitted in Printing)

u worten OF APPEAL

“Notice i is een given that all plaintiffs and intervenor-

/s/ Edward E. Schwab

5 Eo an E. Scuwas

Attorney for Plaintiſſs

˖ "+ Neighborhood Legal Service ee

9 : 36 N Street, S. E.

Pe | Washington, D.C. 20003

/s/ E. Calvin Golumbic

E. Cal ]] Gotumsic

Attorney for Plaintiffs

. Lawcor Project

Institute for Studies in Law and

Social Behavior

American University Law School

Washington, D. C. 20016

686-2630 : .

[Certificate of Bervies Omitted in Erintinq

108

| 1 ;

pursuant to 28 U.S.C. 4 1258, from the final order

—

(Title Omitted | ‘in Printing}

| Sonn oF APPEAL

Notice is hereby given that the defendant ehr appeals

to the Supreme Court of the United Stetes, pursuant to

28 U.S.C. § 1253, from the order of this Court entered

February 12, 1971, in favor of the Plaintiffs * e,

the defendant. 7

Wer ee e

ue Attorney.

Assistant F. Bens States Attorney.

Certificate of Service Omitted in. Printings:

* ©

109

1— — Louse | :

7 ee Couumsta

. 5 51 or Ae A LE ae

Rapm wn 1 d., 1 3 ee

unf, At neg ˖«ͤ ᷣð»¹ 0 N

Civil Action No. 1457-70

— H. 192 ap:

Face, Dafondant. |

wel Mar. 24, 1971, Jas F. Davay, Clerk).

6 Upon consideration of defendant’s motion for stay pend-

a ing appeal andthe opposition thereto, it is by the Court this

24th day of March, 1971,

Onpznep that the Order of February 12, 1971, be and it

is hereby ‘stayed pending appeal, provided that plaintiff

Radie Wright continue to receive Social Security Disability

benefits until such time as his eligibility is suspended in

accordance with the procedures outlined i in the Opinion of

J january 6, 1971.

/s/ Roger Robb

Circuit Judge:

aa Daruite Shelton Matthews

; Senior District Judge

„ | / Oliver Gasch

District Judge

° *

¢ a 3 — 1

‘ * i 2

: é

Nos. 70-161 and 70.5211

of Health, Education and Welfare, oe 2

25 . 5 | ‘Ap ell, i, f ot * 1

: : * n = 5 : é

“Bape Want, et al.; and

Ram Wahr, et al., . 4 :

im Appellants,

V. f |

ELLxor L. Rronanpsox, etc. N

Arraais from the United States District Court for the

District of Columbia. thy:

The statements of jurisdiction in these cases. having been |

submitted and considered by the Court, probable juris-

diction is noted. The cases are consolidated and a total

of one hour is allotted for oral argument.

October 12, 1971. is

u u. 8. Govertiment Printing Office: 1971—448-600/280

— te mmm me EL AF. —— * 3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.