Jurisdictional Statement — Califano v. Aznavorian

IN THE SUPREME COURT OF THE UNITED STATES

CCTOBER TERM, 1977

NO. . RECEIVED

67-5999) wom

GRACE AZNAVORIAN, et al., OFFILE UF THE CLERK

SUPREME COURT, U.S.

Appellants,

vs.

JOSEPH A. CALIFANO, JR., Secretary of

Health, Education and Welfare,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

JURISDICTIONAL STATEMENT

PETER A. SCHEY

Legal Aid Foundation of Los Angeles

1550 West Eighth Street

Los Angeles, California 90017

VICTOR BENJAMIN HARRIS

RALPH SANTIAGO ABASCAL

California Rural Legal Assistance

115 Sansome Street, Suite 900

San Francisco, California 94104

CHARLES WOLFINGER

Legal Aid Society of San Diego, Inc.

964 Fifth Avenue

San Diego, California 92101

OF COUNSEL

JANE STEVENS DOROTHY LANG

PHILLIP M. GASSEL Western Center on Law & Poverty

Legal Services For 3534 West Sixth Street

the Elderly Poor Los Angeles, California 90020

2095 Broadway

New York, N.¥. 10023 ATTORNEYS FOR APPELLANTS

TABLE OF CONTENTS

an Se DOSE, 2s 4 eke we 6 ee wie

FETE SEOs 6 6 8k se ES

OPINION BELOW

JURISDICTION,

QUESTIONS PRESENTED .....e-e.«ee

FEDERAL STATUTES INVOLVED

STATEMENT OF THE CASE

THIS APPEAL PRESENTS SUBSTANTIAL QUESTIONS

REQUIRING PLENARY REVIEW BY THIS COURT. ......

A. All SSI Beneficiaries, Properly Proceeding

As A Certifed Class Under 42 U.S.C. Sections

405(q) and 1383(c) (3), Are Entitled To Judicial

Relief And Opportunity To Recover Unconstitu-

tionally Denied Benefits, Without Having Current

SSI Applicaticns Or Being Eligible For Continuing

Benefits At The Time A District Court Renders

Judgment.

B. Even If The District Court Had Some Discre-

tion To Weigh Equities In Granting Relief

to Successful Class Members Properly Before

It, That Discretion Was Abused In This Case.

EE Shee ee ne ce a re eae ee ok ae ee

Pe WAG ees ele gs ee aoe es ele footer eae

Appendix B ° os ° ° °

ED Whee Ee ek a Se eA ee eae ke ee

og are a a Ae Ye TRS Ee eee ae ae Bg ee ae OL Al A

we gee te AROS ge Tee eee ee er ae ae ee ee a eee

De Wo ek ae. 4 a we ek

PAGE

CASES: PAGE

Bermudez v. United States Department of Agriculture,

490 F.2d 718 (D.C. Cir.), cert. denied 414 U.S.

1104 (1973) 8

Board of Social Welfare v. County of Los Angeles,

27 Cal.2d 81, 162 P.2d 630 (1945) 15

Cardinale v. Mathews,

399 F.Supp. 1163 (D. D.c. 1975) 10

Carleson v. Remillard,

406 U.S. 598 (1972) 10

DeLao v. Califano,

560 F.2d 1384 (9th Cir. 1977) 10

Goldberg v. Kelly,

397 U.S. 254 (1970) 13,15

Griffin v. Richardson,

346 F.Supp. 1226 (D. Md.)

aff'd 409 U.S. 1069 (1972) 1]

Jimenez v. Weinberger,

923 F.2d 689 (7th Cir. 1975)

cert. denied 427 U.S. 912 (1976)

9,11,12,14,15

Johnson v. Mathews,

539 F.2d llli (8th Cir. 1976) $,9,10,11,12

King v. Smith,

392 U.S. 309 (1968) 10

Liberty Alliance v. Califano,

Nos. 77-1010/11 (3rd Cir. December 6, 1977) 10

Mathews v. Diaz,

426 U.S. 67 (1976) 7,10

Mathews v. Eldridge,

424 U.S. 319 (1976) 7,40,13

Mathews v. Lucas,

427 U.S. 495 (1976) 3

Morris v. Richardson,

346 F.Supp. 494 (N.D. Ga. 1972),

vac. and remanded on other grnds.

409 U.S. 464 (1973) 11

Norton v. Mathews,

427 U.S. 524 (1976) 10

Oliver v. Califano,

CCH Unemployment Ins. Rep. 415,244

(C.D. Cal. 1977) 10,11

Rothstein v. Wyman,

467 F.2d 226 (2nd Cir.),

cert. denied 411 U.S. 921 (1972) 12,15

a

TABLE OF AUTHORITIES

Butz,

356 F.Supp. 1345 (W.D. Ky. 1973)

aff'd 491 F.2d 165 (6th Cir. 1974)

Towsendad v. Swank,

404 U.S. 282 (1971)

Tripp v. Swoap,

= a tins

17 Cal.3d 671, 552 P.2da 749 (1976)

Weinberger v. Salfi,

422 U.S. 749 (1975)

Wilson v Edelman,

542 F.20 1200 (7th Cir. 1976)

CONSTITUTIONS

United States Constitution

Fifth Amendment

STATUTES AND REGULATIONS:

Ss U.S.C. $1252

§2101

42 U.S.C. §404

§405(q)

§ 1381 et seq.

§1382(f£)

§1383 (b)

§1383(c) (1)

§1383(c) (3)

20 C.F.R. §416.110(b)

§416.536

§416.538

§416.1327

§416.1336(c)

Federal Rules of Civil Procedure

23(a), (b) (2)

wile

PAGE

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10

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9

passim.

12

passim.

9

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

GRACE AZNAVORIAN, et al.,

Appellants,

vs.

JOSEPH A. CALIFANO, JR., Secretary

of Health, Education and Welfare,

Appellee.

JURISDICTIONAL STATEMENT

INTRODUCTION

This appeal raises important questions concerning the

right to relief available under Title XVI of the Social Security

Act, 42 U.S.C. §§ 1381 et seq., commonly known as the Supple-

mental Security Income Program (SSI). The district court certi-

fied a nationwide class of all individuals who were otherwise

eligible for SSI when they received final decisions from the

Secretary of Health, Education and Welfare denying or suspend-

in¢ttheir SSI solely pursuant to 42 U.S.C. §1382(f£) and its

implementing regulation between September 26, 1975 and August

23, 1977. After declaring Section 1382(f) and its regulation

1/ For ease of reference, appellants hereafter use the term

"denying" to account for all forms of loss of SSI pursuant

to 42 U.S.C. §1382(f) and its regulation. See class definition

infra at 5. 4

unconstitutional because they violated the Fifth Amendment,

the court limited relief to those class members who were re-

ceiving SSI, or would have been receiving SSI but for the

Secretary's denial under the invalidated provisions, on the

date it entered its Order -- August 23, 1977. The court denied

all relief to two subclasses: individuals eligible for SSI

but not applying for it at the time of the court's Order, and

those no longer eligible for it on that date. These class

> /

</

members appeal from that part of the court's Order and

Judgment. [This Court will reach the issues raised by this

appeal if it _effirms those parts of the district court

and Judgment from which the Secretary appeals. Califano v.

\zZnavorian, No. (jurisdictional statement due Jan-

OPINION BELOW

The district court's opinion, not yet officially re-

ported, is attached hereto (Appendix "App." A, infra, la -

3la), along with the Order (App. B., infra, 32a - 36a) and

Judgment (App. C, infra, 37a - 39a).

JURISDICTION

This civil action was brought as a class action under

42 U.S.C. §§405(g) and 1383(c)(3) to declare 42 U.S.C. §1382(f)

3/

and 20 C.F.R. §416.1327 unconstitutional, reverse the Secre-

: - pie) Tee ee eee

2/ “Appeliants," as used hereafter are these class memb rs.

7 While the Secretary has refused to state the exact number

, x py a

such individuals (Defandant‘'s Objections to Plaintiff's In

mber 2, 1977 that appellants exceed 9,000 people (Depo. of

rt Mar der.)

3/ All references to Code of Federal Regulations are to the

oa revision dated April 1, 1977

ot

fos ag ee € his agents admitted during depositions conducted

ary s decisions suspending or denying SSI under those pro-

visions, and recover such benefits. The district court's

final Order and Judgment were entered on August 23, 1977

and September 6, 1977, respectively. (App. B at 32a; Avp. C

at 39a.)

The Secretary filed his Notice of Appeal from the

Order and Judgment to this Court on September 22, 1977, pur-

Suant to 28 U.S.C. §1252. (App. D, infra, 40a.) Section 1252

vrovides for such direct appeal from a judgment of a federal

court holding a federal statute unconstitutional in a civil

action to which a federal officer is a party. Mathews v.

Lucas, 427 U.S. 495, 503 (1976).

After receiving the Secretary's Notice of Appeal,

appellants timely filed their Notice of Cross-Avpeal from the

same Judgment and Order to this Court on October 4, 1977,

Pursuant to 28 U.S.C. §§1252 and 2101 (a) (b). (App. E, infra,

4la - 42a.) The second Daragraph in 28 U.S.C. §1252 requires

that parties who have "received notice of appeal under this

section shall take any subsequent or cross-appeal to the

Supreme Court." On November 25, 1977, Mr. Justice Rhenquist

extended the time for docketing this appeal to, and including

January 10, 1978. 4/

QUESTIONS PRESENTED

l. Are SSI beneficiaries, properly proceeding as

a certified class under 42 U.S.C. §§495(g) and 1383(c) (3),

entitled to judicial relief and opportunity to recover uncon-

4/ Because Mr. Justice Rhenquist's Order used the term

"appeal" and "appellants" rather than "cross-appeal"

and "cross- appellants," his nomenclature is adonted here.

stitutionally denied benefits only if they have current SSI

applications and are still eligible for benefits at the time a

district court renders judqment?

2. If the district court had some discretion to weigh

equities in granting relief to successful SSI clas- members pro-

perly before it, was that discretion abused in this case?

FEDERAL STATUTES INVOLVED

Appellants reproduce the full texts of 42 U.S.C.

S§ 405(g), 1382(f), and 1383(b), (c) in Appendix F, infra

43a-44a.

STATEMENT OF THE CASE

Pursuant to 42 U.S.C. §1382(f) and 20 C.F.R. §416.

1327, the Secretary denies all SSI recipients the benefits to

which they are otherwise entitled solely because they travel

outside the United States for one calendar month, or thirty

days. On November 25, 1975, a nationwide class of SSI recipients,

who had been denied benefits pursuant to Section 1382(f) and

the regulation, brought suit under 42 U.S.C. §§ 405(g) and

1382(c) (3) to declare the statute and regulation in violation

of their rights to due process and equal protection guaranteed

by the Fifth Amendment, reverse the Secretary's decisions

denying their SSI, and recover those benefits.

In her Complaint, plaintiff made it clear that she

was prosecuting this case on a class basis and seeki»3 appro-

priate class relief. (Complaint 49-13; Prayer 46.) Her

motion to certify the class under Federal Rule 23(b)(2) and

42 U.S.C. §§ 405(g) and 1383(c) (3) described how each member

was a proper claimant under Section 405(g) and 1383(c) (3).

The Secretary conceded that if the Social Security Act did not

preclude class actions, the instant class was properly defined.

(Defendant's Brief In Opposition To Plaintiff's Motion For

Ciass Action Certification at 1.)

~

The district court found that the Social Security Act

did not preclude class actions, that the proposed class satis-

fied the requirements of Federal Rule 23(a) and (b) (2) (App.

A at 3a-8a), and certified the following class:

All individuals otherwise eligible for Supplemental

Security Income, who have had such SSI denied, sus-

pended, terminated, or interrupted pursuant to an

initial written determination, an administrative

reconsideration, an administrative hearing, or an

Appeals Council review, based solely on 42 U.S.C.

§1382(f) and regulations promulgated thereunder,

from September 26, 1975 until the entry of this

Order [August 23, 1977]. (Appendix B at 33a.)5/

All class members met the Section 405(g) requirement that judi-

cial review be sought within sixty days of the adverse action

because this class suit was filed on November 25, 1976 -- sixty

days after September 26, 1975.

The court then held Section 1382(f) and its regulation

unconstitutional because they violated equal protection and

due process guarantees in the Fifth Amendment. (App. A at 17a.)

It reasoned that the challenged provisions penalized SSI recip-

ients for exercising their “basic constitutional right" to

travel outside the United States by denying SSI pursuant to a

blanket durational-loss of United States residency test for

any departure of one full calendar month, or thirty days, regard-

less of whether the recipients in fact remained United States

residents. (Id. at 10a.) Finally, it noted that while limit-

ing SSI to United States residents and preventing fraudulent

receipt of benefits were legitimate governmental interests,

Section 1382(f) did not bear a "fair and substantial relation-

ship" to those interests and that "less drastic means" for

achieving those purposes were available. (Id. at 13a-19a.)

5/ The district court clearly intended to include in the cer-

tified class all individuals who were otherwise eligible

for SSI at the time they were denied benefits pursuant to

Section 1382(f), not just those who were eligible on the Order

date. If the court had intended the latter meaning, it would

have been unnecessary for the court to explain why it denied

relief to appellants (App. A at 25a) or limited its relief

Order only to some members of the certified class. (App. B at

33a-34a.)

«$i

After orally ruline Section 1382(f) unconstitutional,

the court then directed that a motion be filed to obtain class

relief in the final judgment. (Memorandum In Support Of

Plaintiffs' Motion For Order Granting Class Relief at 1.)

Noting that all members were litigating timely claims under 42

U.S.C. §§ 405(a) and 1383(c)(3), plaintiff sought the same relief

for the entire class: reversal of the SSI denials and an oppor-

tunity to recover the entitlements based on residency determi-

nations meeting constitutional standards. She did not seek

automatic payment of the benefits denied pursuant to the

unconstitutional provisions.

The court granted the requested relief, but limited

it to those class members who (a) “are receiving SSI benefits

on" August 23, 1977, or (b) “would be receiving SSI benefits

on" August 23, i977 "but for current operation of Section

1382(f) and regulations promulgated thereunder." (App. B

at 34a.) It refused all relief to appellants, although by

the class definition they submitted timely claims for relief

in the district court under 42 U.S.C. §§ 405(g) and 1383(c) (3).

THIS APPEAL PRESENTS SUBSTANTIAL QUESTIONS

REQUIRING PLENARY REVIEW BY THIS COURT

A.

All SSI Beneficiaries, Properly Proceeding As

A Certified Class Under 42 U.S.C. Sections 405

(g) And 1383(c) (3), Are Entitled To Judicial

Relief And Opportunity To Recover Unconstitu-

tionally Denied Benefits, Without Having Current SSI

Applications Or Being Eligible For Continuing

Benefits At the Time A District Court Renders

Judgment.

The district court granted relief by providing some

individual class members the opportunity to establish retention

of their United States residences by proper constitutional

~

standards at new administrative proceedings. If successful,

they were entitled to recover their denied benefits. However,

the court refused all relief to two subclasses of the certi-

fied class: (1) individuals eligible for, but not having

current applications for, SSI on the date of the court's Order

and (2) individuals no longer eiigible for SSI on that date. By

denying relief to these people, the court effectively imposed

on them additional requirements for securing judicial relief

and recovery of underpayments pursuant to 42 U.S.C. §§ 405(g)

and 1383(b), (c) (3), that are nowhere found in these sections

and indeed conflict with them. This decision, unless reversed,

will severely restrict judicial relief under the SSI Program.

Section 1383 sets out the conditions for an individual

to obtain review of the Secretary's adverse decisions con-

cerning his eligibility for SSI. First, subsection 1383(c)

(1) requires the Secretary to provide a hearing to

any individual who ... claims to be...

eligible [for SSI from the time of denial] and

is in disagreement with any determination...

with respect to eligibility .. . for benefits, ..

Subsection 1383(c) (3) then provides that the Secretary's

determination

after a hearing under paragraph (1) shall be

subject to judicial review as provided in sec-

tion 405(g) of this title. . .

Section 405(g) provides:

Any individual after any final decision of the

Secretary .. . may obtain a review of such

decision by a civil action commenced within

sixty days after . . . such decision.

This Court has held that the "final decision" requirement is

satisfied if (1) the individual receives at least an initial

denial of benefits from the Secretary, (2) he challenges that

denial solely on constitutional grounds, and (3) the Secretary

waites any further administrative proceedings. Mathews v. Diaz,

426 U.S. 67, 73, 75-77 (1976); Mathews v. Eldridge, 424 U.S. 319,

328-332 (i376): Weinberger v. Salfi, 422 U.S. 749, 766 (1975).

-j/-

Appellants met these requirements. (See, supra, at 4-5.)

Once an individual's claim is properly before the

reviewing court, Section 405(g) spells out the relief which

must be afforded:

The Court shall have power to enter, upon

the pleadinas and transcript of the record, a

judgment affirming, modifying, or reversing

the decision of the Secretary, with or without

remanding the cause for a rehearing.

Upon reversal and remand, the Secretary must redetermine the

individual's eligibility. If he was eligible for the payments

initially denied, the Secretary must pay him those benefits

regardless of the reason for denial. 42 U.S.C. §1383(b).

The Secretary concedes that recovery is permitted upon invali-

dation of an unconstitutional statute or regulation:

Under such [statutes], every claimant properly

before the court who establishes a meritorious

claim may obtain fully adequate relief. If the

claimant's contentions, constitutional or other-

wise, are sustained, a judgment by the district

court may reverse the decision of the Secretary

and order the payment of benefits (or reconsidera-

tion of the claim under the proper standards).

(Defendant's Supplemental Brief In Opposition To

Convening Three-Judge Court at 5.) (Emphasis

added). 6/

As the district court recognized, Section 1383(b) im-

plements Congressional intent that SSI beneficiaries "receive

the full and correct amount of their entitlement, even if this

requires payments to be made long after the period of entitle-

6/ Indeed, if the Secretary precluded such benefits after clai-

mants proved their denials improper, this would raise sub-

stantial due process problems, as recognized by a line of cases

invalidating an Agriculture Department practice of denying all

recovery of food stamp assistance in such situations. These cases

reason that the due process right to an administrative hearing

before final federal deprivation of a statutory entitlement

carries with it the right to some relief for incorrect depriva-

tion. E.g., Stewart v. Butz, 356 F.Supp. 1345, 1349 (W.D. Ky.

1973) aff'd 491 F.2d 165 (6th Cir. 1974); see also, Bermudez v.

United States Department of Agriculture, 490 F.2d 718 (D.C. Cir.),

cert. denied 414 U.S. 1104 (1973). This reasoning applies here,

since SSI recipients have pretermination hearing rights as a

matter of statute (42 U.S.C. §1383(c)), regulation (20 C.F.R.

§1336(c)), and due process (Tatum v. Mathews, 541 F.2d 161, 165

(6th Cir. 1976); Johnson v. Mathews, 539 F.2d 1111, 1117-1122

(8th Cir. 1976)).

mn

ent. {App. A at 22a, quoting Jimenez v. Weinberger, 923 F.2d

689, 704 (7th Cir. 1975), cert. deniead 427 U.S. 912 (1976), con-

Sstruing parallel language in 42 U.S.C. §404.) Appellate deci- ‘

Sions uniformly hold that Section 1383(b) grants SSI benefi-

ciaries an opportunity to recover benefits illegally denied.

E.g.-, Tatum v. Mathews, 541 F.2d 161, 166 n.5 (6th Cir. 1976);

Johnson v. Mathews, 539 F.24 1111, 1125 (8th Cir. 1976).

Nothing in the Act or the Secretary's regulations per-

mits a court to refuse relief to an individual SSI claimant after

ciuding the Secretary denied him benefits pursuant to an uncon-

Stitutional statute. The Secretary's regulation states that:

A : , , ; '

cstdy tists Ue Gace wis qomae Wee counter ee

defined in the law. 20 C.F.R. §416.110(b). .

Specifically, nothing in the Act or regulations permits a court

to deny relief to a claimant properly proceeding under Sections

405(g) and 1383(c) (3) because he does not have a current appli-

cation for benefits (appellant subclass 1) or because he is no

longer eligible for SSI (appellant subclass 2) when the court

renders its decision. Pursuant to 20 C.F.R. §416.536, under-

Payments occur only during periods for which a claimant "filed

application" and "met" SSI eligibility conditions. There is

no requirement that he be filing an SSI application or be eli-

gible therefor when a reviewing court renders its decision.

Moreover, the underpayment period runs, and the "fact of under-

payment" becomes established, during all months "for which

there is a difference between the pneaiad paid and the amount

due". 20 C.F.R. §416.538. There is no requirement that any SSI

be due to the claimant for the month when the court renders its

decision. Indeed, 20 C.F.R. §416.542(a) provides for disbursing

underpayments in a "separate payment” in such situations.

Together, 42 U.S.C. §§ 405(g), 1383(b)(c), and 20

C.F.R. §§ 416.536, 416.538 impose obligations (1) on the

district court, at least to grant a remand for an administrative

rehearing to an individual otherwise eligible for SSI when bene-

fits were illegally denied, and (2) on the Secretary to pay those

wrongfully denied benefits to such an individual. The district

court could not condition such obligations on an individual's

eligibility for SSI or pending SSI application on the date of

judicial decision, since to do so would create an additional

eligibility requirement unauthorized by the Act. y/

Individual claimants who happen to be class members

Satisfying all requirements of Sections 405(g) and 1383(c) (3)

have the same rights to judicial review and recovery of under-

Payments as all other individuals. The district court ruled

that class actions are permitted under Sections 405(g) and

1383(c) (3). See, e.g., Liberty Alliance v. Califano, Nos. 77-

1010/11 (3rd Cir. December 6, 1977); Wilson v. Edelman. 542

F.2d 1260, 1275 (7th Cir. 1976); Tatum v. Mathews, supra,

541 F.2d at 163-164; Johnson v. Mathews, supra, 539 F.2d at

1125-1126; Jimenez v. Weinberger, supra, 523 F.2d at 694-696;

Cardinale v. Mathews, 399 F.Supp. 1163, 1169 (D. D.C. 1975);

Oliver v. Califano, CCH Unemployment Ins. Rev. 415,244 (C.D. Cal.

1977); see also, Norton v. Mathews, 427 U.S. 524, 533-538 (1976)

(Stevens, Brennan, Marshall, J.J. dissenting) (Court did not

reach the class certification issue, but dissent noted class

actions proper); DeLao v. Califano, 560 F.2d 1384, 1387 (9th

Cir. 1977). Consistent with those decisions and this Court's

opinions in Mathews v. Eldridge, supra, 424 U.S. at 328-333,

and Mathews v. Diaz, supra, 426 U.S. at 73, 75-77, the court

defined the class so that every member individually satisfied

the judicial review requirements of Section 405(g) and

7/ Cf. Carleson v. Remillard, 406 U.S. 598, 600

cf -S. ’ (1972);

on yeesens cz Swank, 404 U.S. 282, 286 (1971); Ving v. Smith,

in at a 33 (1968). These cases rely on Congressional

at ve history in holding that states cannot enact addi-

nal eligibility requirements unauthorized by federal statute.

1383(c) (3). Each member received a "final decision" from

the Secretary by a denial of benefits solely pursuant to an

allegedly unconstitutional statute, and by his concession

that no further administrative remedies need be pursued.

(See, supra, at 4-5.) Each had filed suit within sixty days

after the denial of benefits. (See, supra, at 5.) Finally,

the Secretary conceded that the court's class definition was

proper under Sections 405(g) and 1383(c)(3). (See, supra,

at 4.) Indeed, the class certified here is identical in all

material respects to those in Jimenez v. Weinberger, supra,

523 F.2d at 695-696, and Oliver v. Califano, supra, CCH

Unemployment Ins. Rep. 415,244 at 2499-120.

The proper certification of a class action under Sec-

tions 405(g) and 1383(c)(3) “conferred jurisdiction on the

District Court to hear [the timely claims] by each individual

member of the class.” Johnson v. Mathews, supra, 539 F.2d

at 1126; Jimenez v. Weinberger, supra, 523 F.2d at 694, 695-696.

Given such jurisdiction for judicial review in Social Security

class actions, courts uniformly grant back payment relief

to all class members denied benefits solely by virtue of

unconstitutional statutes (Jimenez v. Weinberger, supra,

523 F.2d at 704; Griffin v. Richardson, 346 F.Supp. 1226,

1237 (D. Md.) (three-judge court), aff'd 409 U.S. 1069 (1972);

Morris v. Richardson, 346 F.Supp. 494, 509 (N.D. Ga. 1972) (three

judge court), vac. and remanded on other grnds. 409 U.S. 464

(1973); Oliver v. Califano, supra), or the opportunity to obtain

such relief at an administrative hearing. Tatum v. Mathews,

~>

Supra, 541 F.2d at 166 n.5; Johnson v. Mathews, supra, 539

The foregoing statutes, regulations and cases estab-

lish appellants' entitlement to relief under the Social Security

Act, as a matter of richt. The district court cited no Social

Security statute, regulation or case to support its denial of

relief. It relied solely on Rothstein v. Wyman, 467 F.2d 226,

235 (2nd Cir.), cert. denied 411 U.S. 921 (1972), which held

that under the Aid To Families With Dependent Children program,

42 U.S.C. §§ 601 et seg., a court is not required to order a

State to make retroactive payments to c’ass members illegally

denied AFDC benefits. But the AFDC statutory scheme is so funda-

mentally different from the SSI Program that Rothstein is simply

inapplicable in resolving the class relief question here.

First, no statute required states to restore AFDC payments

wrongfully denied. See Jimenez v. Weinberger, supra, 523 F.2d

at 704 n.33. In contrast, Section 1383(b) and implementing

regulations require such payments to SSI beneficiaries. Second,

Congress did not specifically authorize suits in federai court

to review illegal AFDC denials; the claim to recover the pay-

ments in Rothstein was based upon the court's pendent jurisdic-

tion. Under the SSI Program, Congress specifically authorized

suits in federal court to review SSI denials, pursuant to 42

U.S.C. §§ 405(g) and 1383(c)(3). Third, because Congress has

placed a sixty-day limitation period on seeking judicial review

in SSI cases (§§ 405(g) and 1383(c)(3)), there is neither need

nor room for district courts to guess, as in Rothstein, whether

recovery of underpayments “would appear" to be "compensatory

rather than remedial.“ (App. A at 25a.) Given these basic

distinccions between the two statutory schemes, the district

court had no discretion to consider any so-called equitable

factors in determining whether to grant appellants the relief

requested.

oi 2<

B.

Even If The District Court Had Some

Discretion To Weigh Equities In Grant-

ing Relief To Successful Class Members

Properly Before It, That Discretion Was

Abused In this Case.

Assuming, arguendo, that the district court had some

discretion to weigh equities in determining whether to grant

appellants relief, refusing all relief was an abuse of dis-

cretion.

(1) Subclass eligible for ssI on the order date but

not applying for it at that time. The district court recog-

nized the possibility that "these persons are indeed needy."

(App. A at 26a.) Thus, granting relief to this subclass would

serve the court's articulated purpose of the SSI Program: "to

help those who are currently needy." (App. A at 25a.) In fact,

denying relief to this group penalized them twice: first for

exercising their right to travel and denying benefits, and

second for attempting to survive without governmental assis-

tance despite their age, disability, or blindness. 8/ One can

only speculate why these appellants did not reapply for SSI,

but as this Court noted in Goldberg v. Kelly, 397 U.S. 254,

264 (1970),

-+- {Public assistance] provides the means to

obtain essential food, clothing, housing, and

medical care...[T]ermination of aia pending re-

solution of a controversy over eligibility may

deprive an eligible recipient of the very means

by which to live while he waits. Since he lacks

independent resources, his situation becomes

immediately desperate. His need to concentrate

upon finding the means for da subsistence,

in turn, adverse affects his ility to seek

resress from the welfare bureaucracy. (Emphasis

Or in original and footnote omitted. )

8/ This Court has noted that public assistance "is given to

persons on the very margin of subsistence. . . "

v. Eldridge, supra, 424 U.S. at 340. sathews

=} j=

Despite these factors, the court denied relief to

this subclass, asserting:

It would impose a completely unrealistic and undue

burden on the defendant to expect him to determine

who these persons might be. (App. A at 26a.)

This reasoning is factually incorrect. Despite the Secretary's

hedging since the inception of this litigation (see, supra at

2, n.l), his agents admitted in a recent deposition that they

can identify all persons who were unconstitutionally denied

benefits pursuant to 42 U.S.C. §1382(f). They made no distinc-

tion between identifying this subclass and all other class mem-

bers. Indeed, they could make no such distinction, since the

computer code, identifying recipients denied SSI pursuant to the

unconstitutional statute, lumps all such people into one cate-

gory. (Devosition of Robert Marder, December 2, 1977.)

The district court's reasoning also conflicts with

other parts of its decision. It rejected the Secretary's

“administrative burden" argument for avoiding back payments

to other class members, because (a) he conceded that the re-

quested class relief would not require reducing the scope of

SSI beneficiaries; (b) his administrative burden argument is

only a factually unsupported "assertion," and (c) administra-

tive costs alone are insufficient cause for denying unconstitu-

tionally suspended public entitlements. (App. A at 22a-23a.)

See Jimenez v. Weinberger, supra, 523 F.2d at 704. These rea-

sons apply equally to this subclass of admittedly poor persons

eligible for SSI.

(2) Subclass no longer eligible for SSI on the Order

date. The district court denied relief to this subclass

because:

(R]etroactive payments should go to only those who

were unconstitutionally denied benefits in the Dast,

but who are still currently needy, and thus still

eligible for SSI benefits. If a person is not pre-

sently needy, then there would be no purpose served

by granting him retroactive benefits. In such a

Situation it would appear that the payments would

"become compensatory rather than remedial' (quoting

Rothstein v. Wyman, supra). (App. A at 25a.) (Emphasis

in original.)

This reasoning, like that applied to the first subclass, con-

flicts with the court's earlier recognition that the Secretary's

unconstitutional denials

necessarily required the plaintiff class members to

consume other assets in order to attempt to maintain

their standard of living, while at the same time ex-

ercis[ing] their right to travel. (App. at 2la-22a.)

Thus, granting the opportunity to other class members to recover

unconstitutionally denied SSI served the purpose of compensating

them for their injuries. See, Jimenez v. Weinberger, supra, 523

F.2d at 703; Goldberg v. Kelly, supra, 397 U.S. at 264. Merely

because the members of this subclass would not qualify for SSI

on August 23, 1977 does not negate their earlier economic injury

shared with all other class members. Granting them similar relief

will likewise compensate them. Just because these appellants have

by one means or another managed to ward off starvation pending

receipt of the SSI to which they were previously entitled pro-

vides no reason for refusing relief. "To hold otherwise would

provide a money saving device for governments at the expense of

those of our citizenry least able to bear [that] burden." Board

of Social Welfare v. County of Los Angeles, 27 Cal.2d 81, 86,

162 P.2d 630 (1945) (interpreting state public assistance statute

as creating a debt owed to eligible recipients). See also,

Tripp v. Swoap, 17 Cal.3d 671, 682-683, 552 P.2d 749 (1976).

Nor can the district court simplistically rely on

Rothstein v. Wyman, supra, to determine that granting relief to

this subclass would be “compensatory rather than remedial."

As noted at page 12, supra, district courts have no room in SSI

litigation, as they did in AFDC cases, to guess when recovery

of underpayments "would appear" to be compensatory: Sections 405

(g) and 1383(c)(3) provide a bright-line period for SSI claimants

to seek such recovery through judicial review. All members of

this subclass met this period by class definition. (App. B at

33a.)

-15-

L- ; APPENDIX D

: Ral

cD of j

hy Senay 3. KYOEDD nla ee>

a faemcer ere eit

? He ‘ake oa ca r an . 217 \

fFaSSt~stant v me COrass ty © oe Sete piel int ogee

3 i United States Courthouse Ss °

: 940 Front Street, Room 5-N-19

For these reasons, the district court abused any dis- 4 !San Diego, California 92189

'Telephone: (714) 293-5662

cretion it might have had to determine the availability of relief 5

i!

to appellants, 6 Attorneys for Defendant

7 jj

T

Bitescre UNITED STATES DISTRICT COURT

8 |.

Appellants respectfully request that this Court note : SOUTHERN DISTRICT OF CALIFORNIA

9 i

Probable Jurisdiction and grant Plenary consideration to this y

10 :

appeal.

1i i GRACE AZNAVORIAN, et al.,

DATED: January 6, 1978

)

)

Plaintiffs, ) Civil No. 75-1103-cGT

lz i )

Respectfully Submitted, )

s % Vv.

PETER A. SCHEY i ‘i NOTICE OF APPEar,

Legal Aid Foundation of Los Angeles i4 -JOSEPH A. CALIFANO, JR., etc.,

1550 West Eighth Street ic % )

Los Angeles, California 90017 < Defendant.

VICTOR BENJAMIN HARRIS ‘ "

RALPH SANTIAGO ABASCAL at : ?

. ‘ . : . *. t hereb: appeals

California Rural Legal Assistance - Notice is hereby given that the defendan 4

115 Sansome Street <: .

° on ee de nt to 28 W«SsGa

San Francisco, California 92104 ? te the Supreme Court of the United States, pursua :

ert See Garda i. oa n in this action

CHARLES WOLF INGER 31252, from the order of the District Court entered in

Legal Aid Society of San Diego, Inc. (FESS Es AERO istrict Court

Of Counsel 305 Center Street ugust 23, 1977, and from the judgment of the District

JANE STEVENS Chula Vista, California 92010 -+ SF Auguse <3,

PHILLIP GASSEL . ber 6, 1977.

a +pn¥0 25D moerx ’

Legal Services for DOROTHY LANG =i entered on Septemb sd

the Elderly Pcor Western Center on Law and Poverty _ oN tember 22, 1977.

2095 Broadway 3534 West Sixth Street 22 : DATED: Septembe ’

New York, N.Y. 10023 Los Angeles, California 90020 ‘ TERRY J. KNOEPP

ai United States Attorne

iz ii —s Spi ' “7 ( ,

24 | oe (Per GR betas Gar & ( ‘

if : : “t ne te t. > CEN Oh

- i

25 :: D. MICHAEL WALT co ™

j Assistant U. Ss. ee i

26 : ee

i be

27 ;

3

28 :

30 .

Attorneys for Appe Mants ee

HK .

32:

-4Qa-

. !

4 APPENDIX E Y iegil

iI: -2-

H ; i

} 1

| }

ed FILED

pee ne an ee of FSD ER |

‘| PETER A. SCHEY, ESQ RECEIVED |

2/! EEGAL ALD FOUNDATION OF LOS ANGELES TOA | of defendant's appeal in this matter to said Court pursuant to

i} 1550 West Eighth Street uul 4 - 1977,

| Los Angeles, California 90017 , 2; 28 U.S.C. $1252. This cross-appeal is authorized by the second

3 Telephone: (213) 487-3320 CLERK, US. DISTRICT COURT oe

4!' VICTOR HARRIS, ESQ. BY DEPUTY paragraph in 28 U.S.c. §1 y -

| CHARLES WOLFINGER, ESQ. 4 Respectfully submitted:

5]| TAN FAN, ESQ.

-|| LEGAL AID SOCIETY OF SAN DIEGO, INC. 5} DATED: October 7, 1977 LEGAL AID SOCIETY OF SAN DIEGO, INC.

"|| 964 Fifth Avenue

| San Diego, California 92101 6 ’

i Telephone: 239-9611 Fi AL

| - BY: (2425, AB 4AAc2

8i- DOROTHY LANG, ESQ. VICTOR HARRIS

| WESTERN CENTER ON LAW AND POVERTY, INC. 8)

9 | 3535 West Sixth Street ;

| Los Angeles, California 90020 9|

10) Telephone: (213) 487-7211

| j 10| A 4

il RALPH SANTIAGO ABASCAL, ESO. BY: Yo; ee -

| CALIFORNIA RURAL LEGAL ASSISTANCE il PETER SCHEY

12!) 115 Sansome Street, Suite 900 Attorneys for Plaintiffs

San Francisco, California 94104 12

13/| Telephone: (415) 421-3405

4 oe 13

1 Attorneys for Plaintiffs

\ ia

15] PHILLIP M. GASSEL, ESQ.

LEGAL SERVICES FOR THE ELDERLY POOR 15

16// 2095 Broadway, Suite 304

i New York, New York 10023 16

‘“ Telephone: (212) 595-1340

17 \

18) Of Counsel

| 18

sah UNITED STATES DISTRICT COURT

19

| SOUTHERN DISTRICT OF CALIFORNIA

0

21 | 20 ||

} GRACE AZNAVORIAN, et al., | 21

22)

| Plaintiffs, 22

23 | CIVIL ACTION NO. 75-1103-GT

vs. ) 23

24) NOTICE OF CROSS-APPEAL

JOSEPH A. CALIFANO, JR., etc., 24

25

)

Defendant.

26 | ) 25

ser Oe 26

275 Notice is hereby given that plaintiff, GRACE

i ;

it | 27

28|| AZNAVORIAN, on behalf of her class members deried relief by the

i

He - 2 Te 28

29 | District Court judgment (and order incorporated herein} entered H

ij 29

30; September 6, 1977, hereby cross-appeals to the Supreme Court 09¢£

bo. } 7 én

31; the United States from such judgment and order. This cross-appeal

. a, ; 31

32} is taken to the Supreme Court, since plaintiffs have received notice

ae ae

APPENDIX F

42 U.S.C. §405(g) provides:

“Any individual, after any final decision of the

Secretary made after a hearing to which he was a party,

irrespective of the amount in controversy, may obtain

a review of such decision by a civil action commenced

within sixty days after the mailing to him of notice of

Such decision or within such further time as the Secretary

may allow. Such action shall be brought in the district

court of the United States for the judicial district in

which the plaintiff resides or has his principal place

of business, or, if he does not reside or have his prin-

cipal place of business within any such judicial dis-

trict, in the United States District Court for the Dis-

trict of Columbia. As part of his answer the Secretary

shall file a certified copy of the transcript of the record

including the evidence upon which the findings and de-

cision complained of are based. The court shall have

powsr to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the

decision of the Secretary, with or without remanding the

cause for a rehearing. The findings of th2 Secretary as

to any fact, if supported by substantial evidence, shall

be conclusive, and where a claim has been denied by the

Secretary or a decision is rendered under subsection (b)

of this section which is adverse to an individual who was

a party to the hearing before the Secretary, because of

failure of the claimant or such individual to submit proof

in conformity with any regulation prescribed under sub-

section (a) of this section, the court shall review only

the question of conformity with such regulations and the

validity of such regulations. The court shall, on motion

of the Secretary made before he files his answer, remand

the case to the Secretary for further action by the Sec-

retary, and may, at any time, on good cause shown, order

additional evidence to be taken before the Secretary, and

the Secretary shall, after the case is remanded, and

after hearing such additional evidence if so ordered,

modify or affirm his findings of fact or its decision, or

both, and shall file with the court any such additional

and modified findings of fact and decision, and a trans-

cript of the additional record and testimony upon which

his action in modifying or affirming was based. Such

additional or modified findings of fact and decision shall

be reviewable only to the extent provided for review of

the original findings of fact and decision. The judgment

of the court shall be final except that it shall be subject

to review in the same manner as a judgment in other civil

actions. Any action instituted in accordance with this

subsection shall survive notwithstanding any change in

the person occupying the office of Secretary or any~va-

cancy in such office."

42 U.S.C. §1383(b) and (c) provide:

“(b) Whenever the Secretary finds that more or less

than the correct amount of benefits has been paid with

respect to any individual, proper adjustment or recovery

shall, subject to the succeeding provisions of this sub-

Section, be made by appropriate adjustments in future

~43a-

wee

payments to such individual or by recovery from or pay-

ment to such individual or his eligible spouse (or by

recovery from the estate of either). The Secretary

shail make such Provision as he finds appropriate in

the case Of payment of more than the correct amount of

benefits with respect to an individual with a view to

avoiding penalizing such individual or his eligible

Spouse who was without fault in connection with the over-

payment, if adjustment or recovery on account of such

Overpayment in such case would defeat the purposes of this

Subchapter, or be against equity or good conscience, or

(because of the small amount involved) impede efficient

or effective administration of this subchapter.

"(c) (1) The Secretary shall provide reasonable

notice and opportunity for a hearing to any individual

who is or claims to be an eligible individual or eligible

Spouse and is in disagreement with any determination

under this subchapter with respect to eligibility of

such individual for benefits, or the amount of such

individual's benefits, if such individual requests a

hearing on the matter in disagreement within thirty days

after notice of such determination is received.

(2) Determination on the basis of such hearing,

except to the extent that the matter in disagreement

involves the existence of a disability (within the

meaning of section 1382c(a) (3) of this title), shall

be made within ninety days after the individual requests

the hearing as provided in paragraph (1). .

(3) The final determination of the Secretary

after a hearing under paragraph (1) shall be subject to

judicial review as provided in section 405(g) of this

title to the same extent as the Secretary's final det-

erminations under section 405 of this title; except that

the determination of the Secretary after such hearing

as to any fact shall be final and conclusive and not

subject to review by any court.

42 U.S.C. §1382(f£) provides:

Notwithstanding any other provision of this sub-

chapter, no individual shall be considered an eligible

individual for purposes of this subchapter for any

month during all of which such individual is outside

the United States (and no person shall be considered

the eligible spouse of an individual for purposes of

this subchapter with respect to any month during all

of which such person is outside the United States).

For purposes of the preceding sentence, after an

individual has been outside the United States for any

period of 30 consecutive days, he shall be treated as

remaining outside the United States until he has been

in the United States for a period of 30 consecutive days.

-44a-