# Opposition — Smith v. Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0911%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 980 ## Text 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 , 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0911%3A2. Public record. Not legal advice.