Opposition — Smith v. Harris

No. 79-423

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1979

JEANINE R. SMITH, PETITIONER

Vv.

PATRICIA R. HARRIS, SECRETARY OF HEALTH,

EDUCATION, AND WELFARE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE &ESPONDENT

IN OPPOSITION

WaprE H. McCree, JR.

Solicitor General

ALICE DANIEL

Acting Assistant Attorney General

LEONARD SCHAITMAN

FREDERIC D. COHEN

Attorneys

Department of Justice

Washington, D.C. 20530

he een a Cet

INDEX

Page

NSS RR EAT ORE PRED PSG ENTE E MAN CERIO i

ge RAR ape ROC lee PN Ora ey el A I

PI aa su ancaceahdsencepurasiiassebetecs Ka oaees 2

I cerle oirtoesteidelcaiiacea apatites ei ates coudausic 2

eI ED Re OA ENTE SF Te Ce Ce a

OUI <ligssiavien uciitalendiiciaaidatbeilsadodalendissebociaiessscocosde 10

‘CITATIONS

Cases:

E.J. du Pont de Nemours v. Collins, 432 U.S.

sa MOOR STE Oe OR ON TS RPT ND Ds Da ON 8

Northern Indiana Public Service Co. v. Porter

County Chapter of the Izaak Walton League,

rE wischcisetsbipacnabtsebidhe Abad cedetanccnudaddobunass y

Statutes and regulations:

Social Security Act, 42 U.S.C. 301 ef seg. :

Title II:

Section 204(a)(2), 42 U.S.C. 404(a)(2) oo... 6

Section 204(d), 42 U.S.C. 404(d) woo... 6

Section 205(g), 42 U.S.C. 405(g) ooo 4

Title XVI:

Section 1611, 42 U.S.C. 1381 et seg. ...... 2.9

Section 1611(b), 42 U.S.C. 1382(b) wc. 6

Section 161 1(c), 42 U.S.C. 1382(¢) wc. 3

i

Page

Statutes and regulations —(Continued):

Section 1631(a)(2), 42 U.S.C.

MEINE oihdeak diinscth akan sctwihinnsaaacslcciins ke Se

Section 1631(b), 42 U.S.C. '

SINGS SR a ean tel 2, 3, 4, 5, 8

Section 1631(c3), 42 U.S.C. 1383(c)(3) ....... 4

MOT R OA 8 il 3

BF ec IRS iniSbctiits jn incictitnedenntgiaatiaaciis 3

eT en A cp scuscniipuedindiarnccddenteaetuan amen 6

me Sor a AO OF OR ie 7

ee ie in AED ocsivctscn hicnscosantetirichcssntscnatieas 4, 8

I asia OUP iiinccsscdonaiaiosslepsiaencosesaiuiaeaniiile 7

Fe ae ls TID vrei cninikchcecedcitbnciceusniccasicensicnaaee 3

Sec at WUE sisiviinetipais sats castehulsdslbaeictipeedautooiae 3

Miscellaneous: —

H.R. Rep. No. 92-231, 92d Cong., Ist Sess.

cei Ee a II OF ONT HCI DONE TESTI re 8

S. Rep. No. 92-1230, 92d Cong., 2d Sess.

RAEN scnsedianichsaiatlibiinbitcieccsis. <cacslbiiieleons cued lbiscoae 8

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-423

JEANINE R. SMITH, PETITIONER

V.

PATRICIA R. HARRIS, SECRETARY OF HEALTH.

EDUCATION, AND WELFARE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 597 F. 2d 152. The order and judgment of the

district court (Pet. App. B) are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

March 9, 1979. A petition for rehearing was denied on

June 4, 1979. On August 10, 1979, Mr. Justice Rehnquist

extended the time within which to file a petition for a writ

of certiorari to and including September 14, 1979, and the

petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether Section 1631(b) of the Social Security Act

prohibits the posthumous payment of unpaid Supplemen-

tal Security Income benefits, for a period before the death

of an SSI beneficiary, to a representative payee other than

the beneficiary’s eligible spouse.

STATEMENT

Title XVI of the Social Security Act, 42 U.S.C. 1381 er

seq., established the Supplemental Security Income (SS1)

program for the Aged, Blind, and Disabled. The statute

was enacted to replace several cooperative federal-state

programs with a single uniform system of welfare benefits

administered by the Secretary of Health, Education, and

Welfare. The program guarantees a monthly income to

persons who meet federally prescribed income levels and

other eligibility criteria.

On January 1, 1974, petitioner's husband, with the

assistance of the Sacramento County Welfare Department,

placed petitioner's grandmother, Rosette V. Guidet, in

Holbert House, a board and care facility for the aged and

infirm. All patties concerned assumed that Guidet

would be eligible to receive SSI benefits to pay the cost of

her board and care (Pet. App. A-2 & nl ). Petitioner's

husband signed the admissions agreement, which provid-

ed for a monthly advance payment of $250.

On January 25, 1974, petitioner, on Guidet's behalf,

contacted the Social Security Administration (SSA)

district office and initiated the application process for SSI

benefits. A written application was submitted on

February 7, 1974. SSA had not finished processing the

application, and had not made any eligibility determina-

tion, when Guidet died on March 6, 1974 (Pet. App. A-2).

SSA then denied payment (ibid.) on the ground that

Section 1631(b) of the Social Security Act [42 U.S.C.

§1383(b)] provides that money due a supplemental

security income recipient who dies may be paid only

to the deceased individual’s surviving husband or

wife who was also a supplemental security income

recipient in the month the deceased individual died.

If there is no such surviving husband or wife, the

payments due the deceased recipient cannot be

made to anyone.

After a hearing held at petitioner's request, an

administrative law judge concluded that Guidet’s benefits

for January and February 1974 should be paid either to

Holbert House or “ ‘to another appropriate representative

payee’ ~ (Pet. App. A-3).'! The administrative law judge

reasoned that, despite the apparent prohibition in Section

1631{b), Section 1631(a)(2) of the Act authorizes

posthumous payments to a representative payee “ ‘to

reimburse * * * for necessaries furnished to the deceased

applicant during the period for which the benefits are due,

if such necessaries were provided in reasonable reliance on

the needy applicant’s future payment for such necessaries

out of supplemental security income payments’ ™ (Pet.

App. A-3).

On its own motion, SSA’s Appeals Council reviewed

the administrative law judge’s decision. See 20 C.F.R.

416.1463, 416.1465. Relying on Section 1631(b) and 20

‘Although Guidet’s formal application was not filed until February

1974, she could have been eligible for benefits for January as well, if,

as apparently happened, petitioner filed a written statement. in

January indicating an intention to claim SSI benefits for her

grandmother and then followed that statement by submitting a

formal application within 30 days of receiving notice from the

SSA that such an application was required. See 20 C.F.R. 416.335;

42 U.S.C. 1382(c); 20 C.F.R. 416.325(b), 416.501.

C.F.R. 416.542(b),2 the Appeals Council rejected the

argument that a posthumous payment could be made to a

representative payee. The Appeals Council explained (Pet.

App. A-3):

Where an individual has died, there can be no

payment to her even through a representative payee.

* * * [UJnder Section 416.601(b) of the Regulations

[i.e., 20 C.F.R.], payment to a representative payee

constitutes payment to an eligible individual. * * *

[H]owever, it is evident from Section 416.60 I(a) that

payment through a representative payee is con-

templated only where the eligible individual is living.

Accordingly, the Appeals Council reversed the ad-

ministrative law judge's ruling and held that no SSI

payments could be made to petitioner or Holbert House.

Petitioner then filed this suit in the United States

District Court for the Eastern District of California. See

42 U.S.C. 1383(c3>, 405(g). On cross motions for

summary judgment, the district court ruled in favor of the

Secretary (Pet. App. B).

The court of appeals affirmed (Pet. App. A). The court

Stated that, on its face, Section 1631(b) of the Social

Security Act permits the Secretary to make _ belated

payments of benefits past due only to an SSI beneficiary

or his eligible spouse. The court further observed that the

*20 C.F.R. 416.542(b) provides in pertinent part:

If a recipient dies before the amount due him has been paid to

him, * * * the amount of the underpayment may be paid only to

his surviving spouse * * *. No underpayment may be paid to the

estate of any underpaid recipient, the estate of the surviving

Spouse, or to any survivor other than the living-with eligible

spouse.

Appeals Council’s interpretation of this provision to

prohibit posthumous payments to a_ beneficiary's

representative payee if supported by the statute's

legislative history and by the regulations and consistent

practice of the agency responsible for the statute's

administration (Pet. App. A-5 to A-7 & n.7).

Judge Merrill dissented (Pet. App. A-12 to A-14). He

took the position that the Secretary's construction of

Section 1631(b) is inconsistent with the purposes of the

SSI program because it deprives beneficiaries of the

ability to secure credit for necessary care on the basis of a

present entitlement to benefits. Judge Merrill stressed

that, notwithstanding the apparent limitation contained in

Section 1631(b), the Secretary frequently makes ad-

justments for underpayments by paying a beneficiary's

representative payee (rather than the beneficiary himself

or his eligible spouse) during the beneficiary's lifetime. In

Judge Merrill's view, if Section 1631(b) does not prohibit

this practice, it also should not preclude payment to a

representative payee after the beneficiary's death, as long

as the Secretary is assured that such posthumous payment

will be used to pay for necessary care furnished to the

beneficiary while living and will not simply go to the

estate of the deceased recipient, where it would presum-

ably be subject to the claims of general creditors.

ARGUMENT

The decision of the court of appeals, which involves

solely a question of statutory interpretation, is correct and

does not conflict with the ruling of any other court.

Further review is not warranted.

I. As the court of appeals recognized, the language of

Section 1631(b) of the Social Security Act is “clear on its

face.” The statute provides in pertinent part:

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 *** be made by appropriate

adjustments in future payments to such individual or

by recovery from or payment to such individual or

his eligible spouse (or by recovery from the estate of

either).

Under this provision, belated payments of benefits past

due may be made only to an eligible spouse,’ when the

person initially entitled to the benetits is deceased.+ When

‘By permitting a surviving eiigible husband or wife to receive an

adjustment in SSI benefits to rectify an earlier underpayment to a

spouse who died before the mistake could be corrected. Congress

sought to avoid inequities that might arise under the statutory scheme

setting the appropriate SSI benefit level for married couples in which

both partners are eligible for federal welfare assistance. Section

1611(b) of the Social Security Act. 42 U.S.C. 1382(b). sets the

standard annual SSI benefit level for “an individual who does not

have an eligible spouse” at $1,752: the comparable figure for “an

individual who has an eligible spouse” is $2,628. Under the

Secretary's regulations (20 C.F.R. 416.502), the monthly installment

amount for an eligible couple ordinarily will be divided equally and

paid in separate checks to each individual. Thus. as a general rule,

each spouse in an eligible couple will receive SSI benefits at a rate

lower than he or she could expect as an unmarried beneficiary. The

statutory plan is that part of the benefits paid to each such spouse

will be used for the support of the other. In a real sense, therefore.

an underpayment to one spouse in an eligible couple is an

underpayment to the other as well. Accordingly, Congress acted

rationally in deciding that, after the death of one partner in an

eligible couple, the surviving spouse should be permitted to recover

Past due benefits to which the deceased spouse was entitled at the

time of death.

‘Unlike the SSI welfare program. the Social Security Act's old-age.

survivors’, and disability insurance program establishes a priority

listing of survivors entitled to receive adjustments for benefits past

due at the time of a beneficiary's death and then provides that, in

cases Where a beneficiary dies without leaving one or more qualified

the beneficiary himself is alive, adjustments for under-

payments are, of course, made directly to him, unless he is

mentally incompetent or otherwise unable to handle his

financial affairs. When it appears-to the Secretary that a

beneficiary's interests will be served by the payment of

SSI benefits to a third party concerned with the

beneficiary's welfare, the Secretary may make payments

to a so-called “representative payee.” See 42 U.S.C.

1383(a)(2); 20 C.F.R. 416.601 e7 seq. In such cases, the

representative payee stands in the place of the beneficiary.

While the beneficiary is alive, the payee receives the

beneficiary’s regular payments and any adjustments for

underpayments to which the beneficiary is entitled.

Payment to the payee is equivalent to payment to the

individual beneficiary. When the beneficiary dies,

however, no more payments of any kind can be made to

him or, as a logical consequence, to his legal substitute

the representative payee. Since the payee is simply a

surrogate for the individual beneficiary, he can receive no

payments unless the beneficiary himself is in a position to

receive payments. When the beneficiary dies, the payee’s

Status as such automatically terminates.

This explains why there is no merit to petitioner's

argument (Pet. 8-I1) that SSI benefits owed to her

grandmother for January and February 1974 should have

been paid to a representative payee after Guidet's death.

The representative payee only substitutes for the in-

dividual beneficiary. When Guidet died in March 1974,

survivors, any unpaid benefits shall be paid to his estate. 42 U.S.C.

404(a)(2), (d). This provision in Title Il of the Social Security Act

demonstrates that Congress speaks explicitly when it intends to

authorize numerous classes of survivors to receive posthumous

adjustments of earlier underpayments.

she could no longer receive benefits for January and

February. Her representative payee, assuming one had

been properly designated under the Secretary's

regulations, was therefore similarly disabled. Contrary to

petitioner's contention (Pet. 12-14), 20 C.F.R. 416.601(b)

does not support her position. The regulation simply

states that “[pJayments made * * * to a representative

payee of an eligible individual * * * shall constitute

Payments to such eligible individual * * *.” But. after

Guidet’s death, she was no longer entitled to SSI

payments. Nothing in the Secretary's regulations suggests

that the agent’s entitlement should outlast that of the

principal.

2. The legislative history of Section 1631(b) supports

the Secretary's interpretation of the statute. Both the

House and Senate Reports contain the following state-

ment:

[I]f less than the correct amount of benefits had been

paid, the Secretary would pay the balance due to the

underpaid individual. If the individual dies before

the amount due has been paid to him, or before he

negotiates the check representing the correct pay-

ment, the amount due would be paid to his eligible

spouse, if there is one, and the payment would not be

taken into account in determining the spouse's need

under this program. Underpayments, however, would

not be paid to the estate of a deceased individual

since that would not further the objective of meeting

the current needs of individuals. Overpayments, on

the other hand, could be recovered from the estate of

a deceased individual.

H.R. Rep. No. 92-231, 92d Cong., Ist Sess. 155 (1971);

S. Rep. No. 92-1230. 92d Cong., 2d Sess. 391 (1972)

(emphasis added). The Secretary's regulation prohibiting

‘the payment of past due benefits to any survivor of the

beneficiary other than the eligible spouse (see 20 C.F.R.

416.542(b); note 2, supra) properly implements the

provisions of Section 1631(b), as explained in the

congressional committee reports. The Secretary's inter-

pretation of the statute (and of her own regulations)

“should be followed unless there are compelling in-

dications that it is wrong * * *.” E./. du Pont de Nemours

v. Collins, 432 U.S. 46, 54-55 (1977). See also Udall v.

Tallman, 380 U.S. 1, 16 (1965); Northern Indiana Public

Service Co. v. Porter County Chapter of the Izaak

Walton League, 423 U.S. 12 (1975).

3. Petitioner argues (Pet. 16), however, that denying

posthumous payments to representative payees “rewards”

the Secretary for delay in processing applications* and

deprives eligible applicants of the ability to secure credit

on the basis of their asserted present entitlement to SSI

benefits. Such complaints are properly addressed to

Congress. The current version of Title XVI of the Social

Security Act reflects a deliberate legislative decision that

federal welfare benefits should be used only to meet the

current needs of eligible individuals and their eligible

spouses, not to repay third parties for expenditures

advanced before a beneficiary's death. If SSI payments

are to be used for additional purposes, Congress must

make that decision.

‘There is no suggestion in this case that SSA unreasonably delayed

in processing Guidet’s SSI application. Nor would there be any

significiant administrative incentive for such. delay. Once an

application for SSI benefits is granted, benefits are paid retroactively

to the beginning of the month in which the application was filed. See

note I, supra. It strains credulity to suggest that SSA would

deliberately delay the processing of an SSI application solely on the

chance that the prospective beneficiary might die before an eligibility

determination could be completed.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCrtk, Jr.

Solicitor General

ALICE DANIEL

Acting Assistant Attorney General

LEONARD SCHAITMAN

FREDERIC D. COHEN

Attorneys

NOVEMBER 1979

DOJ-1979-11