Petition — Palm v. Secretary of Health, Education, & Welfare

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

he z

by ;

ja A be

MPSA ie

IN THE

October Term, 1979

No. 79-3 98

HERBERT LEO PALM,

Petitioner,

Vv.

SECRETARY OF HEALTH,

EDUCATION, AND WELFARE

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

HERBERT LEO PALM, Pro Se

Hauptpostlagernd

6450 Hanau |

Germany

= ? 1979

HOLA Be ROBAK, IR ~, CLERK

‘|

(i) ° (ii) Page

Duncan v. Kohler, 34 N.W. 594,

TABLE OF CONTENTS iv ye TE er cakdunee 58

Page | Flemming v. Nestor,

63>U.S. 60 80 S.Ct. 1367..14,15,16,2

CPERIONG BED: cick scans chnwvins eo sa si aia 37° : ‘oie

SURREAL 2c6 600s 0% 0640800 08% eee 2 Hormel v. HKelvering,

QUeGrLGGe PREG RNIED sccsvevceevess a a 312 U.S. 552, 61 S.Ct. 719...35, 36, 45

CONSTITUTIONAL PROVISIONS, STATUTES Kassman v. American University, ©

AND FEDERAL REGULATIONS INVOLVED.. 6 178 U.S.App.D.C. 263, 546F 2d 1029..38,45

STATEVENT OF THE CASE eoereveeeoreeese 8 Meadows V e Cohen, 409.F 2a ‘>, ee > eh

REASONS FOR GRANTING THE WRIT ..... 43 Merckens v. F.I. DuPont,Glore

EOE iioisk as sctasececccs cate ae Forgan & Co., 514 Fed 20.. 35,45

APPENDIX A - Order below entered ‘- National Bank of Savannah v. All,

June aa, 1979 ~s 6&6 oe 6S la : 260 F 370 oeeoeeerereereeeer ee eee eevee eee 11,21

APPENDIX B - Order below entered Philco Corp. v. RCA, 186 F.Supp.155,. 11,22

May 11, 1979 «..+.++.+. 1b aoe Richardson v. Belcher,

APPENDIX C - District of Columbia | 37,38, 46

District Court Memo- :

randum & Order entered Scarborough v. Atlantic Coast Line

September 18, 1978 ... le : Railroad Co.

‘ 175 F 2d 253, Cert.denied,339 U.S.

APPENDIX D - Respondent's final ’ .

aGecision dated 919, 70 S.Ct. 621 eee @eee34«+oeee#eee#e#ee?ee#*¢ 11,20

November 16, 1977 .... 1d Singleton v. Wulff,

| . ee ee ae 35545

TABLE OF AUTHORITIES Stanton v. Weinberger, 502 F2d 315 .. 38

; Sweeney v. Secretary of Health,

CASES: 7 Education, and Welfare,

Blair v. Oesterlein Machine Co., 379 F. Supp. 1098 ...secesecereeeece 14,22

215 Usewe 220 S660 63 @ @.4 66 4) OS GO eoevene 36 Thompson v« Alistete Ins. Co.,

Burrow Vv. Finch, 431 F 2d 486 oeeee 15 476 F 2a 746 eoe#eeveorvreerevoevrvreevr eee ere ee ee @ 35,45

_¢ .

Dandridge v. Williams,

ay Ucts €7h5 Ge Be Uen BIBS cevces Sy

Davis v. Wilson, 349 F. Supp. 905.. 11, 22 |

(iii) Page

Turner v. City of Memphis,

369 U.S. 350, 82 S.Ct. BOs sevsaved ey 49

U.S. v. Atkinson,

297 U.S. 157, 56 S.Ct. 391 1.002038, 45

U.S. v. White County Bridge

Commission

27S F De See. b04 0-08 bees 6 ess errr 35, 45

STATUTES:

UNITED STATES CONSTITUTION:

Sth & 14th Amendments .......3,4,6,11,16,

25,26,33,37,

41,4

4th & 8th Amendments ........ 11,36,33,41

oo 0.8.0. 35 BI TSE baesthieesaars O

$0 08.0 SA I gc civeas accesses 2

SOCIAL SECURITY ACT: Ang. 14, 1935, =

ch.531, title II, §223 as added Aug. l,

1956, ch.836, title I §103(a), 70 Stat.

815, as further amended to the present

Time, OE BiG. BAG io nt ccc eccesevied

Social Security Act:

SEStEOR SOSCE) ce ecccrcctvesocses ae Te

Section 223 wcscscsceevsssessccee 2U

Seotion 223 (a) & (OB) cocvasceves 13

Section 223(d)...csunes voe€,26,25,23 25,

26,27

42 U.S.C. § 405(g) det aia cece chan ta

£0: G80. OSES erin cng nek ae

42 U.S.C. § 423 (a)&( dD) wccveceeeee 12,13

(iv) Page

eS eee ce ) 5 4,6,34,36.25)

25,26,27,28,29,

30,32,37,39,40,

41,43, 46

RULES:

28 U.S.C.A. Rule 8, Note 15

Federal Rules of Civil Procedure ....... 34

FEDERAL REGULATIONS:

20 C.F.R. § 404.310 (c) .... 3,4,5,7,8,23,

| 25,28,30,31,

32,38,40, 41,

43,45

SO G.B.R. 8 806.608 s ccd iccss ren, ae

20 C.F.R. $ 404.603 (0) & (£).ccccce 8

COMMENTARIES:

154 Corpus Juris Secundum §62...... » 22,23

54 Corpus Juris Secundum§§168,197,213.11,23

54 Words and Phrases, Permanent

Béition 1966, page 373 cccccceves se OS

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

HERBERT LEO PALM,

Petitioner,

ECRETARY OF HEALTH,

EDUCATION, AND WELFARE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The Petitioner prays that upon full re-

view of the record a writ of certiorari is-

sue to review the judgment of the United

States Court of Appeals for the District

of Columbia Circuit entered on June 14,

1979, denying a rehearing on the Order

of Mey 11, 1979 of said Court of Appeals

granting summary judgment against the Pe-

titioner.

> ee ee Teens

ee Oe a rate <n we

CITATIONS TO OPINIONS BELOW

The final decision of Respondent Secre-

tary of Health, Education, and Welfare's

Social Security Appeals Council dated No-

vember 16, 1977 is unreported and is prin-

ted in Appendix D hereto, infra, p. ld.

The Memorandum and Order of the District

Court entered on September 18, 1978 is

unreported and printed in Appendix C here-

to, infra, p. le. The Order of the Circuit

Court of Appeals granting summary judgment

against Petitioner entered on May ll, 1979

is unreported and printed in Appendix B.

hereto, infra, p. lb. The Order of the

Circuit Court of Appeals denying a re-

hearing entered on June 14, 1979 is unre-

ported and printed in Appendix A, hereto,

p.- la.

JURISDICTION

The jurisdiction of this Court is in-

voked under 28 U.S.C., Section 1254({1),

Section 205(¢) of the Social Security Act,

as amended, 42 U.S.C., Section 405(g).

QUESTIONS PRESENTED

1. Was it no judicial error when the Dis-

trict Judge feiled to make sure that the

filing limitations of 42 U.S.C. §423(b)

were never modified outside of Congress,

before stating in effect in his Memoran-

dum and Order that same cannot be modi-

fied by the Respondent or the Courts under

any set of circumstances, when from such

inguiries he would have learned that the

respondent indeed modified these very

same filing limitations on his own autho-

rity with Federal Regulations 20 C.F.R.

§404.310(c) for severely physically or

mentally incapacitated claimants, and in

ell probability also on other occasions

for circumstances comparable to an act of

God?

2. Was it due process and eauel protec-

tion of the laws and no judicial error

when the District Judge in his Memorandum

and Order acknowledged that the constitu-

tionel issue was properly raised before

him but he dismissed the Complaint without

resolving it or referring it toa Three-

Judge District Court for resolution?

~ bali

3. Wes it due process and eoual protec-

tion of the laws and in the preeminent

interest of justice and no judicial error

when the Circuit Court of Appeels gran-

ted summary affirmance on Respondent's

motion claim that Petitioner did not

bring Federal Regulations 20 C.F.R.

§404.310(c) to the District Court's at-

tention and did not raise the constitu-

tional issue in the District Court when

the’ record shows thet he did, and while

Respondent at the same time conceded that

both issues raised by Petitioner are

"SIGNIFICANT, WITH SUBSTANTIAL RAMIFICA-

TIONS"? |

4. Was the Circuit Court of Appeals not

obligated to either resolve the constitu-

tional issue itself for the first time or,

in the alternative, remand it to the Dis-

trict Court for resolution by either the

trial judge alone or by a Three-dJudge Dis-

trict Court?

5. Is Section 223(b) of the Social Secu-

rity Act, 42 U.S.C. §423(b), limiting pay-

ment of disability benefits to a period conm-

mencing 12 months immediately preceding the

filing of the application for such benefits

the "law", if claimant's officially recog-

nized period of disability commenced on

Mav 18, 1965, but it was impossible for

claimant, as in Petitioner's extraordi-

nary case, to file his Application For

Disability Insurance Benefits until May

13, 1974, because he was by criminal,

unlawful and unconstitutional means

(conspiracy, duress, fraud, criminel medi-

cal mealpractices and other criminal acts

causing Petitioner great bodily harm) on

the part of United States Government em-

ployees and others, including organized

medicine and the crime syndicate, preven-

ted from filing his application prior to

said May 13, 1974?

6. Have the Courts and the Secretary of

Health, Education, and Welfare no power to

modify this statute under the circumstan-

ces stated above in. view of the fact that

the Secretary of Health, Education, and

Welfare modified this statute with Federal

Regulations 20 0.F.R. §404.310(c) for those,

who are physically or mentally unable to

file a timely application, even though

their inability to file is in most ins-

tances not as severe as in the circum-

stances of the instant case, because

Be ia + reset

others are permitted to file applications

on their behalf at no physical danger to

themselves pursuant to Federal Rezguletions

20 C.F.R. § 404.6037

7. If this Court is of the opinion that

questions 5. and 6. must be answered to

Petitioner's disadvantage, is this statute

then not violative of the "due process"

and "eoual protection of the’ laws" clauses

of the United States Constitution under the

circumstances such as stated above and

established in the instant case?

CONSTITUTIONAL PROVISIONS, STATUTES

AND FEDERAL REGULATIONS INVOLVED

The constitutional provisions are: The

Dth and 14th Amendments of the United

States Constitution (due process and equal

protection of the laws).

The statutory provisions involved are:

THE SOCIAL SECURITY ACT: August 14, 1935,

ch. 531, title II, §223 as added Aug. 1,

1956, ch. 836, title I, §103(a), 70 Stat.

815, as further amended to the present time,

42 U.S.C. § 423(b), reading in pertinent

part:

" . 8

" (bd) ...An individual who would have (4) Failure to file due to c physical

been entitled to a disability in- 2 or menial condition. An individual's

surance benefit for any month had See ef dees ee te

he filed an application therefor period for filing specified in denen

before the end of such month shall yo — this — will be deemed to be

: | ue & physi or menta) condition,

be entitled to such benefit for if during such specified period:

such month if such application is | (i) His physica] condition restricted

filed before the end of the 12th | his activities to such an extent as to

render him incapable of executing an

month." (ii) He was mentally incompetent.

(5) Effective date. No monthly insur-

ance benefits are payable or may be

increased for any month before Janu-

ary 1968 by reason of the provisions of

month immediately succeeding such | application: or

The Code of Federal Regulations involved

is: 20 C.F.R. §404.310(c), reading: this paragraph.

Pe. oo Pg Sege peat

pervs B S cuaula sani cadets 20 C.F.R. § 404.603 (e) & (f) reading:

General An application to establish a

(e) If the claimant (regardless of his

period of disability filed more than 12

months after the month a period of

disability would end may be effective

to establish a period of disability only

under the conditions described in

paragraphs (c) (2) and (3) of this sec-

tion.

(2) Period of disability ending after

January 1968. An application filed

more than 12 months after the month

in which a period of disability would

end shal) be effective to establish a

period of disability if:

(i) The disability ended after Janu-

ary 1968; and

(ii) The application is filed not more

than 36 months after the month in

which the disability ended; and

(iii) The individua) is. alive at the

time the application is filed; and

(iv) The individual's failure to file an

application within the period specified

in paragraph (b) of this section was

due to his physica] or mental] condi-

tion as described in paragraph (c)(4) of

this section which rendered him in-

age) is mentally incompetent or is

physically unable to execute the appli- _

cation, it may be executed by the

person who has the claimant in his

care or by a legally appointed guardi-

oi committee, or other representa-

(f) Where the claimant is in care

of an institution and is not fon entna

competent or physically able to ex-

ecute an application, the manager or

Principa) officer of such institution

lay execute the application.

STATEMENT OF THE CASE

Petitioner is ea naturalized United States

citizen since 1943 and a United States Army

D-day infantry veteran of the second World

capable of executing such ah spption War, having been inducted into the United

ay ° States Army on June 27, 1941 and honorably

discharged as Master Sergeant on October 23,

en ee

19845. He is a holder of the Bronze Star

Medal, Combet Infantryman Badge, Bronze

Arrow Head and a Letter of Commendation

issued by the Commanding Officer, 24th

Cavalry Reconnaissance Squadron, Mecha-

nized, United States Army, endorsed by

the Commanding Cfficer, 4th Cavalry Group,

and endorsed by the Commanding General of

VII Army Corps. He also has recognized

service-connected disabilities. He was ne-

ver in conflict with the lew, except for

a few traffic tickets.

Petitioner, on January 6, 1978 filed a

Complaint - Civil Action No. 78-0023 -

requesting the United States District

Court for the District of Columbia to

review the Respondent's Social Security

Appeais Council's final decision dated

November 16, 1977 which granted the Pe-

titioner a period of disability commen-

cing on May 18, 1965, and disability in-

Surence benefits commencing on May l,

1973 only. (DE 1)./

if The abdoreviation "DE" used throughout

refers to District Court Docket Entry

numbers.

. ©

ne Ti. ab alibabii a

cm rar ne eee —

The jurisdiction of the District Court

was invoked because the case. arises un-

der the Social Security Act, Section

205(g), 42 U.S.C. § 405(g).

The only issue the District Court was

requested to review was the date of en-—

titlement of monthly disability insur-

ance benefits. It is and has been Peti-

tioner's contention that he was entitled

to disability benefits commencing on No-

vember 1, 1965 or December ao 29635 Sc@s

six months after the onset of the disabi-

lity, because he was by criminal, unlaw-

ful and unconstitutional means on the part

of United States Government employees and

others prevented from filing his disabili-

ty claim prior to May 13, 1974, and that

basic law principles, common law and the

United States Constitution toll or waive

the limitations of Section 223 of the So-

cial Security Act, 42 U.S.C. § 423.

The Respondent never denied or refuted

the fact thet the Petitioner wes by cri-

minal, unlawful and unconstitutionel means

prevented from filing his Social Security

Gisability insurance claim prior to Mey 13,

1974.

In support of his legal position, Petiti-

oner invoked the 4th, 5th, 8th ena lath

Amendments of the United States Constitu-

tion and also cited the following euthori-

ties:

Scarborough v. Atlantic Coast Line Rail-

road Co. , 178 F 2d 253 (4th Cir.1949),

15 A.L.R. 2d 491, Certiorari denied 339

U.S. 919, 70 S.Ct. 621,94 L.Ea. 13433

National Bank of Savannah v. All, 260 F

370, particularly at 370,381, 384, 385,

(S.C. 4th Cir. 1919);

Philco Corporation v. RCA, 186 F.Supp.

155 (D.C.E.D. Penn. 1960);

Davis v. Wilson, 349 F. Supp. 905 (D.C.

E.D. Tenn. 1972);

54 Corpus Juris Secundum §§ 168,197,213;

154 Corpus Juris Secundum § 62.

| emptied pe ee

Petitioner demanded judgment against the

Respondent for payment of disability bene-

fits in the amount of $ 218.70 per month,

commencing on November 1, 1965 or December

1, 1965, i.e. six months efter dete of on-

set of disability, until and including the

month of April, 1973, or in whatever month-

ly amount or amounts the Social Security

Act, as amended, authorizes such disabi-

lity benefits for that period, together

with interest on the total amount of back-

pey, commencing on April 21,°1975 (date of

initial award) and ending on the date of

payment of the total backpay, together with

the costs and disbursements of this ection.

In his Answer, Respondent did not clain

or submit any evidence at all disproving

Petitioner's statement and submitted sub-

stantial evidence of the circumstances for

the late filing of his claim contained in

the 454-page administrative record then on

file with the District Court and now on

file with this Court. (DE 8, 9, 12,21,22).

Respondent's subsequent Motion For Judg-

ment On the Pleadings and Memorandum Of

Points And Authorities thereto again did

not deny or refute the fact that the Pe-

titioner was by criminal, unlawful and

unconstitutional means prevented from fi-

- ling his disability insurance claim, and

requested judgment in Respondent's favor:

on the sole ground that 42 U.S.C. § 423

(a) & (b) precludes payment to Petitioner

of disability insurance benefits for the

period from May, 1965 to May, 1973.(DE 20).

wears ~<adly

Petitioner's Motion In Opposition To Res-

pondent's Motion For Judgment On The Plea-

dings And Petitioner's Cross-Motion For

Judgment On The Pleadings and Memorandum

Of Points And Authorities In Support

thereof requested judgment against the

Respondent as set forth on pages 11 & 12

supra. (DE 25). Petitioner by reference

to the certified transcript of the admi-

nistrative record showed that he had sub-

mitted to the Respondent for the adminis-

trative proceedings substantial evidence

proving that he was by criminal, unlawful

and unconstitutional means prevented from

filing his Application For Disability In-

Surance Benefits prior to May 13, 1974,

and from obtaining the required true and

correct Social Security Medical Report

prior to September 24, 1974. He argued

that Section 223(a) & (b) of the Social

Security Act, 42 U.S.C. §423 (a) & (bd)

is not the "law" in this extraordinary

case, and if it were, this statute would

be in violation of the" due process"and

mecual protection of the laws" clauses of

the United States Constitution. He argued

further that the facts underlying the

court decisions cited by the Respondent

involved no criminal, unlewful or uncons-

titutional acts, but if in Flemming v.

Nestor, 363 U.S. 603 (1960) the majority

of the Supreme Court had found an uncons-—

titutional act, the decision would have

gone in Nestor's favor, and that in Swee-

ney v. Secretary of Health, Education, and

Welfare, 379 F. Supp. 1098 at 1098 (4.),

1101 (4),(E.D.N.Y. 1974), the District

Court made it clear that if Sweeney had

been able to prove that it was impossible

for him to file the application prior to

the time he did file it, the court would

have decided in his favor.

Petitioner again cited in support of his

legal position the authorities already sta-

ted in his Complaint and earlier to the Res-—

pondent's Social Security Appeals Council,

as set forth on page 11, supra.

The District ‘Court's Memorandum and Order

entered on September 18, 1978 (Appendix ¢,

p. le, infra) granted Respondent's Motion

to Dismiss and held that the Court and the

Secretary of Health, Education, and Welfare

have no power to modify the backpay limita-

tions of Section 223(b) of the Social Secu-

rity Act, 42 U.S.C. §423(b), even if the

, 16

ted from meeting these limitations by cri-

‘ minal, unlawful and unconstitutional means,

and that the individuals are secure in their

person, that they are not being deprived

by someone of life, liberty, or property

without due process, that no cruel and

stances". The constitutional auvestion unusual punishment is inflicted upon them

by someone, and that they enjoy equal pro-

raised by the Petitioner was acknowledged

but not resolved by the District Court. tection of the laws. Therefore, Section

223(b) of the Social Security Act, 42 USC

‘(Appendix C p. le, infra; DE 26). The Dis-

trict Court cited: §423(b) is applicable only if the above

Petitioner was "prevented from applying

earlier bv a criminal syndicate of killers

which continues to threaten him, by an or- |

ganized medical malpractice conspiracy,

which included Government physicians, and |

by ccher related and analogous circun-

Plemming v. Nestor, 363 U.S. 603,(1960) cited conditions prevail with respect to

Burrow v. Pinch, 431 F 2d 486, 491, a claimant. But Petitioner proved that

ora od (8th Cir. 1970); , these conditions did since May 18, 1965

Meadows v. Cohen, 409 F 2a 750 not and still do not ore

(Sth Cir. 1969). a tte HOt prevail with respect

Petitioner filed a timely Notice of Appeal

(2) That the facts underlying the court

from this Memorandum and Order. (DE 27).

Petitioner's, Pro Se, Appellant's Brief

raised essentially the same points as the

Questions numbers 5., 6., 7. presented in

this petition and supported them with the

decisions cited in the District Court's

Memorandum and Order involved no criminal

unlawful or unconstitutional acts. In

Flemming v. Nestor, 363 U.S. 603 , if the

majority of the Supreme Court had found an

essential Appendix and Addendum of Statutes unconstitutional act, the decision would

ant Renkietsnee, have gone in Nestor's (claimant's) favor.

in Meadows v. Cohen, 409 F 24 750 (5th Cir.

1969), Krs. Meadows did not.cleim and prove

that her late filing was due to criminal,

Petitioner argued:

(1) That when Congress enacts filing limi-

tations it goes on the presumtion that the

claimants affected by them are not preven-

unlewful or unconstitutional interference,

and this makes all the difference between

cases like hers and Petitioner's case.

That with respect to Petitioner it is

proved, however, that unconstitutional

acts have been committed against him

continuously, causing him great bodily

harm, and that it was indeed impossible

for his to file his application prior to

the time he did file it without facing

certain death and without risking fur-

ther bodily harm and possible death-for

his aged parents. (Both had been crippled

for life by arranged accidents in New York

City.) That Congress would certainly not

want anyone to do that. Besides, the whole

exercise would have been in vain due to the

fact thet the required true and correct

Social Security Medical Report was defi-

nitely not obtainable before September 24,

1974. That all this wes recognized and

accepted as fact by thy Veterans Admini-

stration (TR 49) 2/ and has been proved

as fact in the Social Security Admini-

stration proceedings. And that, therefore,

2/ The abbreviation "TR" used throughout

refers to the 454-page administrative

record on file with this Court.

there was no reason why Respondent should

not have decided in Petitioner's favor.

That the administrative record (?R 1-454)

Proves that Petitioner by criminal, un-

lawful and unconstitutionel means (con-

tinuous conspiracy to violate his civil

rights, constitutional rights and human

rights; continuous actual severe viola-

tions of these rights of his, including

infliction of great bodily herm; continu-

Ous duress and undue influence; fraud;

continuous conspiracy to obstruct justice

and the due administration of the laws;

malfeasance of United States Government

employees with respect to petitioner's

case; illegal refusal of consular pro-

tection, a statutory right of Petitioner

pursuant to 22 U.S.C. §§ 1731, 1732; eri-

minal medical malpractice and nonpractice

by United States Government physicians and

private physicians in the United States and

in Europe; illegal and criminal adultera-

tion of the drinking water, food and me-

dicines for the purpose of poisoning pe-

titioner on the part of New York State

and New York City authorities, authorities

of foreign countries and private persons,

etc.), was prevented from filing his dis-

ability claim under the Social Security

Act prior to May 13, 1974. (TR 8, 13-14;

Amended Complaint 6., 10., 12., 16.).

That these unlawful actions toll or waive

the filing limitations in the instant case

pursuant to basic law principles, common

law, a civilized country's morality and

the United States Constitution. These

basic law principles apply to all rights,

including “created rights", such as the

Social Security Act. (Complaint 4.,5.;

TR 8-14).

That it was definitely not the intent of

Congress to deprive anyone prevented by

criminal, unlawful or unconstitutional means

from timely filing of his Social Security

Gisability claim of any part of the Social

Security Act, and these besic law principles

cited above toll or waive the statute of

limitations in such cases also with respect

+O "created rights” such as the Social Se-

curity Act, and Petitioner's case is of this

nature. (TR 8,14; Comrlaint‘4.,5.).

That the above cited basic law principles

do not permit the Government of the United

States to deprive anyone of his legal rights

in general by unlawful means, as it has

been doing in Petitioner's case 3/ and

then be the beneficiary of such unlawful

actions, because this is "contra bonos

mores" and tolls the statute of limitati-

ons in such cases also with respect to

"created rights", and Petitioner's case

is of this nature. (TR 8,14; Complaint

bucSite

That the authorities for Petitioner's

contention are:

(a) Scarborough v. Atlantic Coast Line

Co., 178 F 2d 253 (4th Cir.1949),

15 A.L.R. 2a 491, Certiorari denied

339 U.S. 919, 70 S.Ct. 621, 94 L.Ed.

1343, and the authorities cited

therein;

This decision clearly states that

in case of fraud or other deliberate

wrongdoing (Petitioner's case is con-

3/ The acts and omissions of the many Uni-

ted States Government employees with res-

pect to Petitioner were criminal acts

and resulted for him in preventable per-

secution and severe bodily harm. They do

not fall in the seme cetegory es wrong

information supplied to claimants by

Social Security Administration employees.

(b)

siderably worse, since bodily harm

was constantly inflicted) the statute

of limitations is tolled, also on

"created or substantive rights" such

as the Social Security Act. This case

involved the Federal Employers' Lia-

bility Act, and the Social Security

Act is of the same "created or sub-

stantive rights" category. Therefore,

with this decision, the Supreme Court

has already set a precedent for the

Social Security Act also. (TR 24-30;

Complaint 16.).

National Bank of Savannah v. All,

260 F 370, 381, 384, 385 (S.C. 4th

Cir. 1919), and the authorities ci-

ted therein;

While this decision was rendered pri-

or to enactment of the Social Securi-

ty Act, it is nevertheless binding

upon it. It clearly states that in

case of duress, threat to take life

or to inflict bodily harm, or any.

Other criminal or wrongful act that

is “contra bonos mores" the statute

of limitations is tolled. (TR 295-

303; Complaint 16.).

(c)

(d)

(e)

Philco Corporation v. RCA, 186 F.

Supp. 155, (D.C.E.D. Penn.1960),

and the authorities cited therein;

This decision clearly states that

in case of conspiracy or duress the

statute cof limitations is tolled in

general. This decision was under the

Sherman Anti-Trust Act which Petiti-

oner believes is also a "created or

substantive right". (TR 304-306;

Complaint 16.);

Davis v. Wilson, 349 F. Supp. 905

(DCED Tenn. 1972), and the authori-

ties cited therein;

This decision clearly states that if

some paramount authority prevents a

person from exercising his legal re-

medy, the statute of limitations is

tolled; (TR 307-309; Complaint 16.);

Sweeney v. Secretary of Health, Edu-

cation, and Welfare, 379

F. Supp. 1098 at 1098(4.), 1101(4),

(EDNY 1974);

In this Social Security disability

late filing case the District Court

made it clear that if Sweeney had

been able to prove that it was

impossible for him to file the ap-

plication prior to the time he did

file it, the court would have decided

in his favor.

(f) 54 Corpus Juris Secundum §168,197,213;

154 Corpus Juris Secundum § 62.

(TR 287-294; Complaint 16.).

That it is respectfully submitted that

District Judge Gesell erred in holding that

the Court and the Secretary of Health, Edu-

cation, and Welfare have no power to modi-

fy the filing limitations of Section 223(b)

of the Social Security Act, 42 USC §423(b).

That Federal Regulations 20 C.F.R.

§ 404.310(c) which modifies these statuto-

ry limitations for those disability insu-

rance claimants whose physical condition

restricted their activities to such an

extent as to render them incapable of exe-

cuting an application or for mentally in-

competent claimants, proves the fact that

the Secretary of Health, Education, and

Welfare, who issued these regulations, has

indeed the power to modify this statute in

circumstances that are comparable to an _

act of God. (For text see pages 7-8, supra).

That Petitioner's circumstances are con-

Siderably worse, however, since the crime

Syndicate, New York City Police Depart-

ment and organized medicine with their re-

. spective international associates, inclu-

ding United States Consuls seen by the

Petitioner, prevented him from filing the

claim prior to May 13, 1974 by criminal,

unlawful and unconstitutional means with ©

infliction of almost continuous bodily harn,

aside from death threats. Besides, severe

bodily harm was inflicted in New York City

by his persecutors on both his parents, and

their lives would also have been endangered

if Petitioner had tried to file his claim

earlier. (TR 47-48; 144-146; 454). And

the letter of H.H. Marguiies, M.D., (TR

452-453) proves that organized medicine

in all countries refused to issue the re-

quired true and correct Social Security

Medical Report as late as August 15, 1974.

That on the other hand, the physically

and mentally incapacitated claimants, for

whom the Secretary of Health, Education,

and Welfare made these filing Gate modi-

fications, are in most instances in this

respect not as badly off as Petitioner,

provided that they ere not victims of cri-

minal acts by organized medicine and/or

Organized crime, because the chances are

g00d that the institutions which treat

them will file timely applications on

their behalf or help their relatives or

attorneys in filing them. Federal Regu-

lations 20 C.F.R. § 404.603 , page 8,

Supra, permits others to file applica-

tions for physically or mentally inca-

pacitated claimants, whereas in Petiti-

oner‘'s case no lawyer was willing, up to

this date even, to represent him in the

United States due to the involvement of

Organized medicine and organized crime.

That since the Secretary of Health, Edu-

cation, and Welfare has demonstrated with

Federal Regulations 20 C.F.R. §404.310(c)

that he has the power to modify Section ©

223(b) of the Social Security Act, 42 US¢c

§423(b), for the severely physically or

mentally incapacitated claimants, he most

certainly has even more so the power to

modify this statute where criminal,

unlawful or unconstitutional interference

is involved. It is in fact his duty to do

s0 on the basis of basic law principles and

the United States Constitution and of the

principles ell three branches of the Uni-

ted States Government stand for, and Con-

gress would certainly not feult him but

commend him for doing so in the instant

case and similar circumstances.

Theat it is, therefore, respectfully sub-

mitted that if Section 223(b) of the Social

Security Act, 42 U.S.C. §423(b) were the

"law" in the instant case and cases of si-

miler circumstances, this statute would be

in-violation of the "due process" and

“egual protection of the laws" clauses of

the United States Constitution, because it

would constitute "an arbitrary governmental

action" and would "manifest a pateitly

arbitrary classification, utterly lacking

in rational justification."

The authority for this is: Flemming v.

Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367,

1373, where at 1368 of 80 Supreme Court

Reporter the Supreme Court is quoted as

stating: |

7. "While not every defeasance of the

accrued interests of a person who is

covered by the Social Security Act

is violative of the Constitution,

employee's interest is of sufficient

substance to fall within the protec-

tion from arbitrary governmental ac-

tion afforded by the due process

clause. Social Security Act, §202(n)

as amended, 42 USCA §402(n); USCA

Const. Amend. 5."

9. "Particularly in connection with the

withholding of a noncontractual bene-

fit under e social welfare program,

the due process clause interposes a

bar only if the statute in question

manifests a patently erbitrary clas-

Sification, utterly lacking in rati-

onal justification. USCA Const. “aps

Amend. 5."

That there is hardly anything more

"arbitrary" than to demand from a clai-

mant to risk his life and that of his

relatives when filing a Social Security

disability claim, if he wishes to get all

the benefits due him, and on top of it not

to make available to him an examination by

a physician who could be relied upon to is-

sue a true and correct factual Medical Re-

port.

That it is Petitioner's firm belief,

however, that the Courts and the Secretary

of Health, Education, and Welfare were as

a matter of course empowered by Congress

to modify Section 223(b) of the Social

Security Act, 42 USC §423(b) under circum-

stances as presented in the instant case,

and that Federal Regulations to that ef-

fect are overdue.

That for the foregoing reasons, Petiti-

oner requests the Court of Appeals to

either reverse the District Court's Memo-

randum and Order dismissing the Complaint,

and to order Respondent to grant the relief

sought in the Complaint, or to declare the

statute in question unconstitutional if its

text governs also cases where criminal,

unlawful or unconstitutional interference

in the filing of claims is involved.

Respondent filed a Motion For Summary

Affirmance and asked the Court of Appeals

that same be treated as his Brief in the

event summary affirmance was not granted.

The only two (false) issues raised in this

Motion were:

(1) That Petitioner did not raise the fact

in the District Court that Federal Re gula-

tions 20 C.F.R.§404.310(c) actually modified

the filing requirements of 42 U.S.C.§423(b)

with respect to severely physically or men-

tally incapacitated claimants, and that for

this reason, Respondent has the power to

also modify this statute with respect to

criminal, unlawful and unconstitutional .

interference in filing of claims; 4/

4/ Petitioner found 20 CFR §404.310(c) du-

ring his research for the appeal only.

(2) That Petitioner did not raise the

constitutional issue in the District Court

and that for this reason it is not proper-

ly raised before the Court of Appeals. 5/

On the other hand, Respondent conceded

thet "BOTH ISSUES ARE SIGNIFICANT, WITH

SUBSTANTIAL RAMIFICATIONS."

Petitioner's Motion in Opposition To Re=

spondent's Motion For Summary Affirmance

and Petitioner's Cross-Motion For Judgment

On The Issues Presented For Review and/or

Petitioner's Reply Brief stated:

(1) That it is the District Judge's duty

to know and apply the existing law, inclu-

ding Federal Regulations, on his own ini-

tiative, pursuant to 42 U.S.C. §405(¢);

that from the Memorandum and Order under

appeal it is clear that District Judge

Gesell believed that 42 U.S.C. §423(b)

Cannot be modified under any set of cir-

5/ Petitioner, in fact, properly raised the

constitutional issue in the District Court

¢ and also in the Social Security Appeals

Council, and District Judge Gesell ack-

nowledged it in his Memorandum & Order

but did not resolve it nor refer it to

a Three-Judge District Court for reso-

lution. (Appendix C p. le, infra.)

cumstances by the Secretary of Health,

Education, and Welfare or by the courts.

He, therefore, can be presumed to have

overlooked in his research Federal Re-

gulations 20 C.F.R. §404.310(c) which

actually modified 42 U.S.C. §423(b). This

is understandable in light of the heavy

case load District Judge Gesell must, no

doubt, carry. It is clear, however, that

42 U.S.C.§405(g) requires the reviewing

District Judge to apply the law as it exists,

regardless of what the parties cite to him

and even more so if the pro se Plaintiff,

es in the instant case, is no lawyer, has

never attended law school or received any

advice or assistance from a lawyer in pur-

Suing his claim. This means, the District

Judge must consider and reflect on the facts

presented to determine what law (statutes

& Federal Regulations, constitutional law,

common law, basic law principles, etc.) ap-

plies to each aspect of the case before hin.

He, therefore, could not, as he did, state

that’ modification of 42 U.S.C. §423(b) is

impossible without first making sure that

it was never modified outside of Congress,

and if it was, what the Secretary's autho-

rity was for doing so. The District Court's

library is without question more complete

end cross-filed as to subjects than the

One available to Petitioner in Germany.

Besides, the Secretary's own legal staff

may have been able to cite to the Dis-

trict Judge the authority for the modi-

fication by 20 C.F.R. §404.310(c). It,

therefore, is respectfully submitted that

this was an understandable but definitely

appealable error, and that the interest of

justice requires the Court of Appeals’

consideration of it. That Petitioner found

20 C.F.R. §404.310(c) during his research

for the appeal only. That 20 C.F.R. _..

§404.310(c) seems to provide that severely

physically incapable or mentally incompe-

tent claimants can obtain their backpay

starting after six months of onset of dis-

ability, if either someone else files the

claim on their behalf any time during their

disability or if the claimants themselves

file the claim within 36 months after the

month in which their disability ended. That

this is e reasonable arrangement for circum-

stences which are comparable to an act of

God, and, as pointed out in the Appellant's

Brief, page -14- , Petitioner's circumstan-

ces with respect to the filing of the claim

were, however, considerably worse than what

they usually are with respect to the in- .

stitutionalized or social service dependant

majority of the severely physically or men-

tally incapacitated claimants, since the

social workers can be expected to promptly

see to-it that a Social Security claim is

filed, because of the criminal, unlewful

and unconstitutional interference in Pe-

titioner's case, and his proven inability

to obtain the required true and correct

medical report prior to September 24, 1974.

That Petitioner cited 20 C.F.R.§404.310(c)

only as an example of the modification of

42 U.S.C. §423(b) by the Respondent and not

for the purpose of invoking its provisions

to recover his own backpay, but to obtain

the Court of Appeals' judgment ordering

the Respondent to modify 42 U.S.C.§423(b)

also for circumstances where criminal,

unlawful and unconstitutional interference

in filing is involved, because both types

of circumstances are comparable to an act

of God.

(2) That Respondent's claim that Peti-

tioner's constitutional "contentions are

not properly raised before this Court(of

Appeals) because they are not raised below"

is contrary to the facts and the law and

is entirely out of place here, because

District Judge Gesell confirmed it in his

Memorandum and Order. (Appendix C p. le,

infra). Therefore, it was the District

Judge's error not to resolve it himself

or refer the case to a three-judge Dis-

trict Court for resolution of the cons-

titutional issue properly raised before

him. That Petitioner, in fact, invoked the

4th, 5th, 8th and 14th Amendments of the

United States Constitution already in the

Social Security Appeals Council,(TR 18),

and the Appeals Council could not possibly

fail to notice that constitutional questi-

ons were involved here. As such, they owed

it to this non-lawyer pro se claimant to

state their constitutional doubts in their

decision, even though they are not empowered

to declare a statute unconstitutional. That

then, in the Complaint the 4th, 5th, 8th

and 14th Amendments of the United States

Constitution were invoked again by Peti-

tioner. (Complaint 1.) The word "uncons-

titutional" appeared further in Complaint

5.,6.,16. Because Petitioner considered an

explanatory statement of constitutional

contentions an argumentative subject, he

properly presented it at the first oppor-

tunity available for argument in his Cross-

Notion For Judgment On The Pleadings and in

the Memorandum of Points and Authorities

submitted thereto. The court decisions ci-

ted in this respect in Respondent's Motion

For Summary Affirmance do not require a

constitutional argument in the Complaint

itself. They merely require that the issue

be raised in trial court. And the proper

place for such argument is in Petitioner's

view in a Motion and Memorandum of Points

and Authorities to such Motion. That Res-

pondent's other claim that the constitu-

tional issue was not"briefed" is just

as much contrary to the facts. 5A WORDS

AND PHRASES, PERMANENT EDITION 1968,

PAGE 373 says:

" The word "brief" is synonymous in law

with "points and authorities", being

a condensed statement of the proposi-

tions of law which counsel desire to

establish, indicating the reasons and

authorities which sustain them. Duncan

v. Kohler, 34 N.W. 594, 595,37 Minn. 379"

28 U.S.C.A. Rule 8, Note 15. - Federal

Rules of Civil Procedure- states:

"Where a complaint alleges facts from

which the court may reasonably infer

lack of an adequate remedy at law or

irreparable injury, the want of ex-

35 }

; " “a be exceptional case

press allegations thereof is not fatal Shere Bir aifays 2 : = === =

to @ claim for equitable relief. U.S. v. : particular circumstances which will prompt

White County Bridge Commission, C.A. Ill.

1500, 275 F ta S268. | a reviewing or appellate court. where in-

9 ~ i r

justice might otherwise result, to consi-

der questions of law which were neither

"Complaint drafted by a pro se litigant

must be liberally construed, in view of

his lack of professional sophistication. pressed nor passed upon by the Court or

ferckens v. F.I. DuPont,Glore Forgan & | ini ; i

Co., C.A.NY 1975,514 a 307 administrative agency below. See Blair

vy. Oesterlein Machine Co. , 275 U.S. 220,

225. - Rules of practice and procedure

"A Complaint-is sufficient if the plain-

tiff is entitled to relief under any

legal theory. Thompson v. Allstate Ins. | are devised to promote the ends of justice,

Co., C.A. Ala. 1973, 476 F 2d 746". | | not to defeat them. A rigid and undevi-

"The matter of what questions may be taken Loe ating judicially declared practice under

up_and resolved for the first time on appeal | which courts of review would invariably

is one left primarily to the discretion ag and under all circumstances decline to

of the Courts of Appeals, to be exercised consider all auestions which had not pre-

on the facts of individual cases. We an- viously been specifically urged would be

nounce no general rule. Certainly there out of harmony with this policy. Orderly

are circumstances in which a federal ap- rules of procedure do not reouire sacri-

pellate court is justified in resolving fice of the rules of fundamental justice."

an issue not pessed on below, as where Hormel v. Helvering, 312 U.S. 552, 557,

the proper resolution is beyond doubt, 61 S.Ct. 719, 721 (1940).

see Turner v. City of Memphis, 369 U.S.

350, 82 S.Ct. 805, 7. LEd.2a 762 (1962),

or where "injustice might otherwise re-

That Petitioner has more than adeauately

met these tests. That as stated supra, in

the instant case the constitutional issue

Sult". Hormel v. Helvering, 312 U.S. at t

se , =A was properly raised in the District Court,

7, 61 S.Ct. at 721." Singleton v. Wulff r e Court of

, , . and the only thing left for th

428 U.S. 106 6 S. .

» 96 S. Ct. 2868, 2877 (1976). . Appeals to decide was whether it should

37 \.

use its discretion to itself resolve this

issue for the first time or remand the .

constitutional issue to the District Court |

for resolution, in the eventthat the case |

could not be resolved in Petitioner's fa-

vor on the nonconstitutional issue alone.

That it is respectfully submitted that no

further argument or evidence is required

for the Court of Appeals to know that if

42 U.S.C. §423(b) cannot be modified in

circumstances as presented in the instant

case, this statute would actually require .

a claimant in these circumstances to risk

his life and that of his relatives when ,

filing a Social Security claim, if he wishes

to get all the benefits due him, and on top

of it, after the application is filed, he

would not be able to find a physician, who

could be relied upon to issue the required

true and correct medical report, and that

such statutory requirements would "manifest

@ patently arbitrary classification utterly

lacking in rational justification" and

"would not be free from invidious discrimi-

nation", and would. thus be in violation of

the "due process" and "eoual protection of

the laws" clauses of the United States

Constitution. Flemming v. Nestor, 363 U.S.

-603, 80 S.Ct. 1367, 1373; Richardson v.

Belcher, 404 U.S. 78, 81, 92 S.Ct. 254,257

cites with approval Dandridge vy. Williams,

397 U.S. 471, 487, 90 S.Ct. 4153, 1162

(cited in Stanton v. Weinberger, 502 F 24

315, 320 (10th Cir. 1974).

That since Respondent agrees that both

issues presented are "SIGNIFICANT, WITH

SUBSTANTIAL RAMIFICATIONS", and the cons-

titutional issue was actually properly “~

raised in the District Court, and the Res-

pondent had ample time to respond to it

prior to District Judge Gesell's decision,

whereas on the modification issue 20 C.F.R.

§404.310(c) no submission on Petitioner's

part was required in the District Court,

because it was District Judge Gesell's

duty to know it prior to making his de-

cision, a Summary Affirmance, as demanded

by Respondent, would Clearly be against

the "preeminent interest of justice" and

Mwould seriously affect fairness, integri-

ty, or public reputetion of judicial pro-

ceecings" not only among the millions of

Americans covered by the Social Security

system but elso ebroad. Kassman v. Ameri-

can University, 178 U.S. App. D.C. 263, 266,

546 F 24 1029, 1032 (1976); United States

v. Atkinson, 297 U.S. 157,160 (1936), 56

S.Ct. 391, 392.

That for all these grave reasons, Petiti-

oner requests the Court of Appeals to deny

Respondent's Motion For Summary Affirmance,

and to either grant the relief reouested

in Petitioner's Brief or to reverse the

District Court's Memorandum and Order and

remand the case to the District Court for

resolution of the constitutional issue by

either District Judge Gesell alone or by

a Three-Judge Court, depending on what the

Court of Appeals considers legally appro-

priate in the circumstances, if the Court

of Appeals is of the opinion that 42 U.S.C.

§ 423(b) cannot be modified under the cir-

cumstances presented in the instant case,

and if it does not wish to use its dis-

cretion to itself resolve this issue for

the first time.

The Circuit Court of Appeals Order under-

lying this petition entered on May 11, 1979,

(Appendix B p. 1b, infra), effirmed Res-

pondent's Motion For Summary Affirmance

without stating the reasons for this

decision.

This Order was lost in the mail. On the

esis of information obtained from the Clerk

of the Court of Appeals by telephone, Peti-

tioner filed in the Court of Appeals a

Petition For Rehearing which in its perti-

nent part stated:

Theat in Petitioner's opinion, the Court of

Appeels has overlooked or misapprehended

the following point of fact and law:

1. Respondent's claim that the District

Court's Memorandum and Order should

be summerily affirmed because

(a) Petitioner raised the fact that

42 U.S.C. §423(b) was modified by

Federal Regulations 20 C.F.R.

§404.310(c) for the first time in

the Court of Appeals but not in

the District Court;

(b) Petitioner did not properly raise

the constitutional issue before

this Court of Appeals because it

wes allegedly not raised in the

District Court 3

is devoid of any merit in fact and in law,

because

2. Pursuant to 42 U.S.C.§405(g) the Dis-

trict Court is obligated to review the

administrative record and proceedings

in their entirety and apply the proper

law on its own initiative, and this

even more so where a non-lawyer pro

se claimant is involved. By stating

that 42 U.S.0.§423(b) cannot be mo-

cified by the courts or the Secre-

tary of Health, Education, and Welfare

under any st of circumstances, inclu-

States Constitution already in the Social

Gine criminal, unlewfvl and unconstitu-

tional interference in filing a Social

Security claim, District Judge Gesell

erred, because 20 C.F.R.§404.310(c)

has actually modified 42 U.S.C.§423(b)

and there may have been even other

modifications in the past outside of

Congress. It was, therefore, District

Judge Gesell's duty to make absolutely

sure that 42 U.S.C.§423(b) was never

-modified outside of Congress before

rendering his erroneous judgment.

That the constitutional issue was

properly reised by Petitioner in and

acknowledged by the District Court in

its Memorandum and Order, but the Dis-

trict Court did not resolve it. This

was an additional error on the part

of the District Court. Besides, Peti-

tioner had invoked the 4th, 5th, 8th

and 14th Amendments of the United

Security Appeals Council (TR 18). Therefore,

the only thing left for the Court of Appeals

to decide was whether it should use its dis-

cretion to itself resolve the constitutional

issue for the first time or remand the cons-

titutional issue to the District Court for

resolution, in the event that the case conld

not be resolved in Petitioner's favor on the

nonconstitutional issue alone. That it is

Petitioner's understanding that the Order

of the Court of Appeals stated no grounds

for this summary affirmance. That the Court

below owes it to this Petitioner and to the

millions of Americans covered under the So-

cial Security system as well as to the public

reputation of judicial proceedings to state

its reasons, if on reconsideration it still

believes that Respondent's Motion For Sum-

mary Affirmance should be granted in light

of all these proven judicial errors and

criminal and unconstitutional facts in-

volved in this case.

The Circuit Court of Appeals Order under-

lying this Petition entered on June 14,

1979 (Appendix A p. la, infra), denied

Petitioner's Petition For Rehearing and

also denied his request therein for a

statement of reasons.

REASONS FOR GRANTING THE WRIT

1. District Judge Gerherd A. Gesell was

pursuant to 42 U.S.C. §405(g) obligated

to make sure that the filing limitations

of 42 U.S.C.§423(b) were never modified

Outside of Congress, before stating in

effect in his Memorandum and Order that

Same cannot be modified by the Respon-

dent or by the courts under any set of

circumstances. Had he made such inquiries,

he would have learned of the existence of

Federal Regulations 20 C.F.R.§404.310(c)

with which the Respondent indeed modified

these very same filing limitations on his

own authority for severely physically or

mentally incapacitated claimants, and in

all probability he would have learned of

other modifications of these filing limi-

tations by the Respondent for other cir-

Cumstances comparable to an act of God.

This was, therefore, a judicial error

on the part of District Judge Gesell.

e. The Petitioner properly raised the

constitutional issue in his Complaint as

well as in his Cross-Motion For Judgment

On The Pleadings and in his Memorandum of

Points and Authorities submitted thereto,

— mene ete.

and District Judge Gesell acknowledged in

his Memorandum and Order that the constitu-

tionel issue was properly raised before the

District Court. The District Judge failed,

however, to resolve the constitutional is-

sue or to refer it to a three-judge Dis-

trict Court for resolution. This was also

his obligation under the law, and his fai-

lure to do so was his second judicial error.

3. Even though Petitioner pointed these

facts out to the Court of Appeals, same

overlooked or misapprehended these facts

in their entirety and granted Respondent's

completely meritless Motion For Summary

Affirmance. It also denied Petitioner's

request for a statement of its reasons.

This was an utterly incomprehensible

miscarriage of justice.

4. Even if Petitioner bad made a pro-

cedural error which the record shows he

did not, summary affirmance by the Court

of Appeals on the basis of the two false

and unfounded issues reised in Respondent's

Motion For Summary Affirmance would still

have been in conflict with the following

Circuit Court of Appeals decisions cited

in the Petitioner's Motion In Opposition

To Respondent's Motion For Summary Affir-

mance and Petitioner's Cross-Motion For

45 -

Judgment On The Issues Presented For Review

and/or Petitioner's Reply Brief:

Kassman v. American University, 178 U.S.App.

D.C. 263, 266, 546 F 24 1029, 1032(1976);

U.S. v. White County Bridge Commission,

(C.A.111.1960), 275 F 2d 529;

Merckens v. F.I.DuPont,Glore Forgan & Co.,

(C.A.N.Y. 1975), 514 F 2a 20;

Thompson v. Allstate Insurance Co., (C.A.

Ala. 1973), 476 F 2a 746.

Further, it would have been in conflict _ °

with the following Supreme Court decisions

also cited in-said Petitioner's Motion and/

or Petitioner's Reply Brief:

Turner v. City of Memphis, 369 U.S. 350,

82 S.Ct. 805 (1962);

Hormel v. Helvering, 312 U.S. 552, 557,

61 S.Ct. 719, 721 (1940);

Singleton v. Wulff, 428 U.S. 106, 96 S.Ct.

2868, 2877 (1976) ;

U.S. v. Atkinson , 297 U.S. 157, 160 (1936),

56 S.Ct. 391, 392.

5. On the other hand, Respondent has con-

ceded that the 20 C.F.R.§404.310(c) modifi-

cation issue and the constitutional issue,

both raised by Petitioner, are "SIGNIFICANT,

WITH SUBSTANTIAL RAMIFICATIONS". And the

underlying facts are such that they meet

the criteria established by this Court in:

Flexming v. Nestor, 363 U.S. 603 (1960),

80 S.Ct. 1367,1368, 1373;

Richardson v. Belcher, 404 U.S. 78, 81,

92 S.Ct. 254, 257;

Dandridge v. Williams, 397 U.S. 471, 487

90 S.Ct. 1153, 1162,

with respect to the unconstitutionality of

Social Security Act statutes.

6. For all these grave reasons, it was

mandatory upon the Court below to deny.

Respondent's Motion For Summary Affirmance

and to either grant the relief requested

in the Appellant's Brief or to reverse

the District Court's Memorandum and Order

. and remand the case to the District Court

for resolution of the constitutional issue

by either District Judge Gerhard A. Gesell

alone or by a Three-Judge Court, depending

on what the Court below considered legally

appropriate in the circumstances, if the

Court below was of the opinion that 42 USC

§ 423(b) cannot be modified under the cir-

cumstances presented in the instant case,

and if it did not wish to use its discre-

tion to itself resolve this issue for the

first time.

7. It is, therefore, established that the

court below has rendered a decision which

is in conflict with the facts and estab-

lished law and procedure. It is also in

conflict with at least one of its own

decisions and with the decisions of a good

number of other Circuit Courts of Appeals

and Supreme Court decisions on the same

subject matter, and the court below has

also so far departed from the accepted

and usual course of judicial proceedings,

and has also so far sanctioned the departure

-by a lower court, as to call for an exer-

cise of this Court's power of supervision.

In addition to this, these proceedings have

severely violated Petitioner's rights under

the 5th and 14th Amendments of the United

tates Constitution ("due process" and

"equal protection of the laws"). Since

Respondent agrees that the issues raised

by Petitioner are "SIGNIFICANT, WITH SUB-

STANTIAL RAMIFICATIONS", the preeminent

interest of justice demands this Court's

Opinion on these issues. This case will

elso provide this Court with the oppor-

tunity to clarify the filing limitations

limits of the Social Security Act, and

would thus greatly help to eliminate

future misinterpretations thereof by the

courts below and by the Social Security

Administration, and woulda especially make

it clear to those, who try to prevent bene-

ficiaries by criminal, unlawful and uncon-

stitutional means from timely filing of

their claims, that they cannot succeed.

CONCLUSION

For the foregoing reasons, this Petion

For A Writ Of Certiorari should be granted

Respectfully submitted,

HERBERT LEO PALM, Pro Se

Hauptpostlagernd

6450 Hanau 1

Germany

September 1979

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR TEE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1017 September Term, 1978

Entered Civil Action No.78-0023

June 14, 1979

HERBERT LEO PALM, )

Appellant, ?

¥.

SECRETARY OF HEALTH,

EDUCATION, AND WELFARE

BEFORE: BAZELON and ROBB,

Circuit Judges

On consideration of appellant's petition

for rehearing it is

ORDERED by the Court that the aforesaid

petition for rehearing is denied, and it is

FURTHER ORDERED by the Court that the re-

quest for a statement of reasons included

in the petition for rehearing is also

denied. Per Curiam

. For the Court:

GEORGE A. FISHER, Clerk

By: /s/ Robert A. Bonner

Robert A. Bonner

Chief Deputy Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIECUIT

No. 79-1017 September Term, 1978

Entered Civil Action No.78-0023

May 11, 1979

HERBERT LEO PALM,

Appellant,

Vv.

SECRETARY OF HEALTH,

EDUCATION, AND WELFARE )

BEFORE: BAZELON, McGOWAN and ROBB,

Circuit Judges

On consideration of appellee's motion for

Summary affirmance and of the opposition

thereto, it is

ORDERED by the Court that the aforesaid

motion is granted and the order of the

District Court on appeal herein is

Summarily affirmed.

Per Curiam

Circuit Judge McGOWAN

did not participate in

this order.

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HERBERT LEO PALM, )

Plaintiff, Civil Action

+. No. 78-0023

)

SECRETARY OF HEALTH, Entered

EDUCATION, AND WELFARE, } September 18,

Defendant. 1978

MEMORANDUM AND ORDER

Plaintiff, a resident of Germany, appears

pro se and challenges the decision of the

Secretary which limited the Secretary's

finding of plaintiff's disability toa

period commencing one year immediately

preceding the filing of plaintiff's appli-

cation. Relying on the administrative re-

cord which is before the Court and invoking

the Constitution of the United States,

plaintiff contends that he is entitled to

disability for a longer retroactive period

because he was prevented from applying ear-

lier by a criminal syndicate of killers

which continues to threaten him, by an

organized medical malpractice conspiracy,

which included Government physicians, and

by other related and analogous circun-

stances. Defendant's motion to dismiss is

presently before the Court on briefs.

Section 223(b) of the Social Security |

Act, 42 U.S.C. § 423(b), relating to dis-

ability insurance benefits provides in

pertinent part: |

(bo) . . . An individual who would have

been entitled to a disability in-

surance benefit for any month had

‘he filed an application therefor

before the end of such month shall

be entitled to such benefit for

such month if such application is

filed before the end of the 12th

month immediately succeeding such

month.

The Court holds as a matter of law that

whatever the facts may be in regard to the

reasons why plaintiff did not earlier apply

for disability benefits there is no power

in the Court to ignore the clear command

of this statute. Congress established a

controlling standard for awarding benefits

which it is beyond the power of the Secre-

tary or the Court to modify under circum-

stances such as presented here. Flemming

v. Nestor, 363 U.S. 603 (1960); Burrow v.

Finch, 431 F. 2d 486, 491 (8th Cir.1970);

Meadows v. Cohen, 409 F. 2a 750 (5th Cir.

1969). - : |

Accordingly, the motion to dismiss is

granted.

SO ORDERED.

/s/ Gerhard A. Gesell

UNITED STATES DISTRICT JUDGE

September 15, 1978

APPENDIX D

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

DECISION OF APPEALS COUNCIL

In the case of Claim for

Herbert L. Palm Period of Disability

(Claimant ) and Disability Insu-

rance Benefits

070-14-7876

be Barner) Social Security)

Leave blank if same )(Number

(as above)

This case is before the Appeals Council on

the claimant's request for review of the

administrative law judge's decision dated

June 30, 1977. The administrative law judge

held that the claimant was entitled to a

period of disability beginning August l,

1967, and to disability insurance benefits

under the applicable provisions of the So-

ciel Security Act.

The Appeals Council hereby grants the clai-

mant's request for review of the adminis-

trative law judge's decision. Since the de-

cision of the Appeals Council is favorable

to the claimant, no purpose would be served

by giving the usual notice of granting the

request for review.

The administrative law judge's statements

as to the pertinent provisions of the So-

cial Security Act and the issues in the

case are incorporated herein by reference.

The evidence of record establishes that the

claimant has a combination of impairments

which together have markedly restricted his

functional capacity to perform substantial

gainful work activity since the alleged

onset date of May 18, 1965.

The remaining issue in this case is the

question of when the claimant's first month

of entitlement to a disability insurance

benefit became effective. In this regard,

section 223 of the Social Security Act

provides in effect that an individual shall

be entitled to a disability insurance bene-

fit when he has satisfied the special in-

sured status requirement, not attained the

age of 65, filed an application for bene-

fits and be under disability. Further, the

provisions of Section 404.607(b) of Social

Security Regulations No. 4 provides in

effect that a disability insurance benefit

can only begin 12 months immediately pre-

is filed, if all conditions of entitle-

ment are met in such prior months.

Based on the month in which the claimant

filed his application for disability in-

Surance benefits, May 1974, the Appeals

Council finds that in accordance with the

law and regulations, the first month he

met all factors of entitlement for a dis-

ability insurance benefit was May 1973.

Thus no disability insurance benefits are

payable earlier than May 1973.

After careful consideration of all the

evidence of record, including additional

evidence not considered by the administra-

tive law judge, the Appeals Council finds

that the cleimant is under a "disability"

within the meaning of the Act; that the

"disability" commenced on May 18, 1965,

and continues on the date of this decision;

and that the special earnings requirements

of the Act are met for the purpose of en-

titlement.

'It is the decision of the Appeals Council

that, based on the application filed on

May 24, 1974, the claimant is entitled to

a period of disability commencing on

¢’

May 18, 1965, and to disability insurance

benefits under sections 216(i) and 223,

respectively, of the Social Security Act,

as amended. The decision of the adminis-—-

trative law judge, as herein modified, is

affirmed.

APPEALS COUNCIL

/s/ Manny H. Smith

Manny H. Smith, Acting Member

/s/ H.D. Ponce de Leon

H.D. Ponce de Leon, Member

Date: November 16, 1977

a —_ ee sane scar sian ae

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.