Appendix — Shope v. Heckler

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

83 - 108 Office-Suprems Qourt, US,

FILED

IN THE SUPREME COURT OF THE UNITED S¥hTHS 1983

OCTOBER TERM, 1982 | *t&XANCERL sTEvas,

CLERK

No.

MARY F. SHOPE, Executrix

of the Estate of GEORGE W.

SHOPE, deceased,

Petitioner,

Vv.

MARGARET M. HECKLER,

Secretary of Health and

Human Services,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN DENISON RAY

Member of the Supreme Court Bar

c/o Western North Carolina Legal Services, Inc.

P.O. Box 426

Sylva, N.C. 28779

(704) 586-8931

JAMES H. HOLLOWAY

LAWRENCE NESTLER

Western North Carolina Legal Services, Inc.

P.O. Box 426

Sylva, N.C. 28779

(704) 586-8931

UNITED STATES COURT OF APPEALS

No. 682-1678

MARY F. SHOPE, Executrix of the

Estate of George W. Shope, deceased,

Social Security #251-05-5572

Appellant,

CHARD SCHWEIKER, Sec

IC} retar

Health and Human Services of

Appeal from the United States District

Jones, Chief District Judge.

Argued: February 10, 1963

Decided: March 24, 1983

Before SPROUSE and ERVIN, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

Appendix A

tames H. Hollceway, Western North Carolina

. Lecal Services (on brief) for Appellant;

Max 0. Cogburn, Jr., Assistant United

States Attorney (Charles R. Brewer, United

States Attorney on brief) for Appellee.

la (i)

George Ww. Shope, now deceased, filed

a claim for Social Security disability in-

surance benefits, 42 U.S.C. § 423, on

August 8, 1977. The Secretary denied

Shope’s claim initially and on reconsi-

rounds that Shope did

ment. Shope made informal inquiries at

the local Social Security office concern-

administrative procedures whereby he

uld obtain a hearing on the Secretary's

denial, but ne did not properly request

- .

iar mA

_— — meee ~~

il December 15,

1980, more than two years after the time

prescribed by regulation. 20 C.F.R. §

404.933. An Administrative law judge

then dismissed the request for a hearing

1 the srounds that Shope had not filea

a timely request and because he had not

established "good cause'’ to extend the

time for filing.

Shope died on Nay 31, 1941, and his

widow, Mary Shope, was substituted as

claimant. After an unsuccessful appeal

to the Appeals Council, ltrs. Shope sought

review in the district court of the Sec-

retary's dismissal of her hearing request.

The districc court granted che Secretary's

motion to dismiss the action for lack of

jurisdiction. We have considered the re-

cord, the briefs anc argument of counsei,

and conclude that tae district court was

correct in holding that the Secretary's

decision did not constitute a “final de-

§ 405(g) and thac

cision” under 42 U.§

the court therefore lacked jurisdiction.

Accordingly, the judgment of the district

2a(i)

UNIT tL) S

FOR

TO: James h.

Patrick

Max Cogb

ee °

Purpose

TES COURT OF APPEALS

He FOURTH CIRCUIT

1933

are

~*,

March

Holloway, Esa.

Lordeon, isq.

urn, AUSA

wer

44h

NO OF

is enNncLoserc.

(FRAP 4J)

r- @

“de ‘cranted

compelling

based on

M @ ¢

or a need to

thers will be

denied.

Etes

A pe on should only be

made to direct the Court's

attnetion to one or more of

the following situations:

1. A material fact or law

overlooked in the uweci-

sion.

A change in the law

which occurred after the

case was submitted and

which was overlooked by

the panel.

Appendix B

Statement

Counsel

Filing

Time

3. AM apparent conflict with

another decision of the

Court which is not ac-

Gressed in the opinion.

Tae filing of a petition in

order merely to reargue the

case is an abuse of the pri-

vilege.

xist as described

above ''Purpose Section" The

points to be ries shal

be succinctly listec in th

statement. Ceetnn suca a

h*-

(zo

statemenc, the petition w

be returneac to counsel wi

out filing.

The 15 page Jimic allowee by

the Rule shall be observec.

The Court requires 15 copies

of the petition. however, a

pro se party who is indigent

may file the original only.

1 of Costs (FRAP 39)

A party to whom costs are

alloweu, who desires taxa-

tion of costs, shall file a

bill of costs within 14 days

atcter jucgmenc.

3a(i)

Mandate (FRAP 41)

Issuance The mandate is issued 21 days

Time after judgment. A timely

petition for rehearing will

stay the issuance. If the

petition is dceniec, tne man-

date will issue 7 days later.

If a stay of mancate is

sought, only the original of

a motion neec be filed.

Stay A motion for stay of the is-

suance of the mandate saall

not be granted simply upon

request. Ordinarily the

motion will be denied unless

it would not be frivolous or

filed merely for delay anc

would present a sudstantial

question or otnerwise set

forth good or probable cause

for a stay.

Enclosure

3a(ii)

MMITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

a i

Appellee.

TRAn 7

ee el ~-

-_ ~s- es 4 -nay od : Se ie a” ettene . _ -“~-

PEeCLLIC n ror rene suggestio ror

- <——

s .

od - ~~ ro aa sane - -_ _ rie ch eel - ~~

renearine en oahe anc 2) dge naving re-

= - -

quested a poll on the suggestion for re-

gearing en banc,

—s

It is ADJUDGLD and ORDPLRED that the

petition for rehearing is denied.

Entered at the decision of Judge

Sprouse for a panel consisting of Judge

Sprouse, Judge Ervin and Judge Butzner.

For the Court:

FILED

Apr i). cee ©=—>-—s(s_ Willian K. Slate, ZI

of Appeals

Fourth Circuit

Appendix C

Iii THE DISTRICT COURT OF THE UNITED STATLS

FOR THL WeSTLRI DISTRICT OF WORTH CAROLINA

BRYSON CITY DIVISION

B-C-61-242

tary F. Shope, Executrix of

the Estate of GEORGE W. SnOPE,

deceased,

(2)

Med

CHWETKL

ann

anew

oow

hither

PLIORAwDU OF LLCISION

The Plaintift brought this action pur-

Suant to 2<035(g) of the Social Security Act,

as amended [42 U.S.C.A. §405(g)] to ob-

tain judicial review of the dismissal of

her request for a hearing on her claim

for disability benefits under Title II

of the Social Security Act. The Plain-

tiff is the duly appointed Executrix of

the Lstate of George W. Shope, deceased,

and the surviving spouse of the deceased.

This matter is presently before the Court

Appendix D

upon the Defendant's motion to dismiss.

Hearings were neld on this motion on March

15, 1982 and May 17, 1902 and the parties

were given until June l, 1932 to submit

additional briefs. After a careful con-

sideration of the record, briefs and argu-

ments of counsel, the Court now enters its

findings and conclusions.

Mr. Shope filed an application

rance benefits on August 8, 1977 (Rec.

79-32). The application was denied ini-

tially on August 30, 1977 (Rec. 77-75).

The first request for reconsideration

filed March 10, 1978, was dismissed for

late filing (Rec. 27). however on Octo-

ber 6, 1976 the Secretary denied Shope's

application on reconsideration because

Shope had not met the earnings require-

ment at the time of the claimed onset of

disability or at any later date (Rec.

23). Mr. Shope submitted additional

evidence on his insured status in august

107 : : Seer Leet nt ocee :

1979 and the Social Security Administration

notified him by letter dated February 26,

1960 that the evidence he had presented

did not change the previous determination

Geaciine. apparently wt ouope aGé SCo-

. a | aia ’~or eaere < Ne 9 7 > _ “~~ od rr

era. ras eGuests tOr 2a ear. r2G8 4

* . -

nis written request. Len Barone, a case

worker for the Secretary, attached a state-

ment to lir. Shope's written request for a

, Title 20, CFR §404.933 requires that a request

for a hearing must be in writing and must be

made within sixty days after the date the clain-

ant received notice of the previous determina-

tion. Title 20, CFR §404.933(c) allows the

claimant to request for an extension of time to

file a hearing request if he missed the original

filing deadline. If the claimant can show "good

cause" for missing the deadline, the time period

will be extended. 20 CFR §404.933(c) and 404.911.

hearing and stated:

. . . Recon was filed-deniec-w/e stat-

ed that he wanted a hearing. wUWowever

formal request was never filed anc

therefore hearing was never helc.

w/e has submitted evidence perioci-

cally during the last 2 yrs. but no

notice re. hearing ever given. Ii

feel that it is the fault of this of-

fice that hearing was never helc. Wwe

simply kept fwag. infor to prograr.

center and failed to zet formal re-

quest for hearing. I sincerely be-

aoe ~~ an LSiiscunn

7? asj vwarieon £

2iEVE ZOOS CGUSE 1OF 2G se sanie

should be found in this case.

An acministrative law judge (herein-

after ALJ) dismissea the request for hear-

ing on May 6, 1981 because che nearing re-

quest was not filed within ov days of the

date of receipt of the reconsideration ¢de-

termination notice as required by the regu-

lations. The ALJ also found that good

cause for extension of time for filing had

not been shown (Rec. 7-8). Mr. Shope died

on May 31, 1981, and Mary Shope was substi-

tuted as party Plaintiff on June 15, 1961.

The Appeals Council affirmec the denial of

the hearing request on August 13, 1981.

The Defendant contends in its motion

to dismiss that this Court lacks juriscaic-

tion (1) because the Plaintiff failed to

exhaust the administrative remedies, (2)

because there has been no ‘final decision"

of the Secretary as required by 42 U.S.C.A.

9405(g), and (3) to review alleged abuses

of agency discretion in refusing to extend

time for filing. The Plaintiff argues

tir. Shope did everything he was requirec to

do under the law and made a time.y request

for a hearing. She contends that after

tir. Shope orally requested a hearing, tne

local Social Security office failed to per-

form a ministerial act, completing a Re-

quest for Hearing Form and having (tr.

Shope sign it. The Plaintiff asserts that

after the oral request for a hearing, it

was the duty of the local Social Security

office to explain the hearing procedure to

Mr. Shope and to prepare him a written re-

quest for a hearing. Plaintiff Shope in-

sists that this case does not involve a

failure to make a timely request for hear-

ing or a judicial review of an abuse of

agency discretion but rather concerns the

failure of the Defendant to perform duties

rec of him initially by due process.

urt reluctantly finds that it

on to review tne denial of

. ~ , - : P

tne extension of cime to rile a nearing re-

; sa ee ae ete : ;

review of Social Security claims only to

po . A

final decisions of the Secretary mace af-

Cera hearing. . Tne Supreme Court nas

had at least three occasions to deal with

the issue of judicial jurisdiction in So-

cial Security cases.

In Weinberger v. Salfi, 422 U.S. 749,

35. 9.Ce.. 2457,. 45 L.id.2d 322 (1975), tne

Supreme Court expressly held that §405(g)

prevents review of the Secretary's cecisi-

ons except as provided in §405(g) of the

10a

Act. td. at 757, 95 S.Ct. at 2457. The

Court stated that under §405(g) a ‘final

decision" of the Secretary is a "juriscic-

tional prerequisite’ for judicial review

and that exhaustion of administrative pro-

cedures "may not be dispensed with merely

by a judicial conclusion" that a failure

seh Assn a ples4s ser aAess a4

to exhaust the acministrative procecure

was not intentional. 422 U.S. /66, 995

L& 7 1° , : : ep) =

S.Ct. at 2467. Under the statutory scneme

contained in §405(¢) and (h), the presence

udicial intervention is

~~ - rr". ya tmeannent ebaA That cA

proper. ine Ws & recognicec Giick & wad

Secretary has the authority to

by regulation"’ the meaning of the tern

"final decision." Id., 95 S.Ct. at 2407.

" % . . “a .

The statutory scheme is thus one in wnicn

the Secretary may specify such requirements

for exhaustion as he deems serve his om

interests in effective and efficient admi-

nistration. Id.

1U a(i)

In Mathews v. Eldridge, 424 U.§. 319,

96 S.Ct. 893, 47 L.Ed.2d 15 (1976), tne

Court expounded on the Salfi decision and

explained that the final decision require-

ment consists of two elements: (1) the

waivable element that the administrative

exhausted and (2) the non-waivable “iuris-

* =

es , att 4 ‘

cictzional element tnatC a Claim for veneée-

- a, 2 4 . ciyh* aed and ~ 5

retary G at Y¥Zo6 JO o.LC at ofJ as

sn (CP 4 £2 nH - a ~e Im Wan eRe . - ed out

~-* - « ~») - Ms -— = - - a — a - —_—

quirement; The Secretary may waive the ex-

haustion requirement if he satisfies him-

process, that no further review is warrant-

ed because a matter of constitutional law

concecedly beyond the Secretary's compe-

tence to decice or to grant the relief

sought is involved. Mathews v. Eldridge,

10a (ii)

In Califano v. Sanders, 430 U.S. 99,

read to authorize judicial review of

ed abuses of agency discretion in refusing

- - *

to reopen claims for social security bene-

e ”" <7 17 val » Q'26

fits Id. at 107-108, 960 S.Ct. at 965

al * -

In the present case, there is no douvt

quest for hearing. The Secretary has not

waived the exhaustion requirement since

there is no constitutional question involv-

ed. Mr. Shope's failure to file a request

‘ for hearing timely ended the acministrative

action. Under the regulations as promul-

gated by the Secretary, it was then at the

l0a(iii)

discretion of the Secretary as to whether

or not to reopen the matter and to allow

Shope to have a hearing. Requests for re-

opening and for extensions of time are both

+ 4 (Sone . - = rw ™ ”~ is hd |

tne sole ciscretion of tne oecretary sie

LJ made the discretionary cetermination

eh ne ~ Alad wan] sa fans? — eaki 4 ’

that the claimant had failea to establish

” ~~ mete " -- -A -~-— -~ -~— : °-

ood cause" to extend e time for filing

Linder the authority ot Salii and Mathews,

The Court finds that the denial of the re-

ie for che filing o

hearing request was not a "final decision,”

that Shope failea to exhaust his admini-

strative remedies and that there is no con-

stitutional claim exception involved. Fur-

thermore, this case is at most an example

rt)

of an alleged abuse of agency ciscretion.

Under Sanders, this Court is withour juris-

diction under 94U5(g) to review abuse of

l0a(iv )

agency discretion.

Therefore, under the authority of

Salfi, tathews and Sanders. this Court

lacks jurisdiction to review the cenial of

the motion to extend time for filing and

cludes that the Defendant's notion to dis-

miss for lack of jurisdiction should be

above findings and conclusions shall be

enterec simultaneously herewith.

-: ‘J J . oo nm.

This the 19th day of July, 1982.

/s/ Woodrow W. Jones

Chief Judge

10a(v)

i! THE DISTRICT COURT OF THE UNITE STATES

FOR THE WESTERN DISTRICT OF wORTH CANOLIVA

BRAYSCN CITY CIV

B-Ceul-242

MARY F. SHOPE, Executrix of

the Estate of GEORGE W. StOPL,

eceasecd,

Plaincifr,

RICHARD SCHVWEIKER, Sec

of Kealtn and Human Se

o£ the United States,

THIS MATTER was heard before the Court

ang the issues having been cetermined as

shown by a Memorandum of Decision entered

by the Court simultaneously herewith;

IT IS ORDERED, ADJUDGLL, AND DECRELL

that the decision of the Secretary of

Health and Human Services denying benefits

under the Social Security Act to the Plain-

tiff be and the same is hereby affirmed,

and the action is hereby dismissed.

l0a(vi)

Tae Clerk is directed to send a copy

of the Memorandum of Decision and this

Judgment to the attorney for the Plaintiff

and to the United States Attorney.

s/ Woodrow W. Jones

10a(vii)

——_———

REPORT OF Contac? re

Ute se 2F temews te ee.

™“ war se Cu e wvau | _— oe

$e O10 oc eS

Se Lata “L

a ee ~~ -_*t . *@issas

et tate re ee =(e

<i ses : = ‘ — a —_— a a ed ou te

— il sf "owe " eone mee ae

SUBJEC th, 4 rf, — - ° ‘

—— 7, PF Fs ip ’! oe at = ry Ly

—quy a he = oer eae 4 a

of A tJ

y ff S jm gene

—— 4 - 4: / i 4“ of ! “af f f, o” —_

ee A a 4 ll ‘Soe SF aie oF =? SS LAr eee,

; = ” > en 2 ; — poe Saeee ee

a Aa UT allen < / ow Va OP rT % a Zap Pi

mae a pape cP a Og a

7 - 2 oLaoe i CO at ZL o EE et ee —_— SS, Lg ie ae

a. 42 "4 rt f= ; C 2 a om ——

—efetes ff (020/08 gue olned! Jo

FAs alll ale , ee nth th 4 , fs ‘s ee

ee re

—ioe tte st a

oe a

( e_sS ~—< i etn Ca

—- << ——Tt ee

= En a PTE

* i cueteamnaeeneal

s. fo

— — ,, a gy —

- 4 L’

at aie

-_—-~—s

—- ———

< ——— L = o Cee

pr Ke fa aseed. es

Lees pa

OTST Hk meme #20 08 Come,

Dee Ore

* CPHOe (perils

wane L.2—

Cuames

Cs OO cvemeas

—_ Sa. a (12-79)

oe ———— ee eee +

Se ee es

Appendix .

li.

REPORT OF CONTACT Oc OUN! Nut an

~~ WE OM SE PERL OM OT Mem Sperily)

— —_-

—

** ° € of comrec?

: = a Fett ee

fc . —

iz -

|" euwwsiw

———

ee tee . i ae f / ,

| “SES Fp at. ISf5 Zp EL oe

Lo Le .

em {Yaz

“ = ZO?

OT > i ee Om Om ORE,

< x

rn Ma ; ~lormem Speestys

o 7

Form $SA-$002 (17-79) b=

_~<— «~ owen ee —— ome -- -— ~~ « —— +

l2a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NOR1h CAROLINA

BRYSOW CITY DIVISION

CIVIL NO. B-C-81-242

MARY F. SHEOPE, Executrix of the

Estate of George Ww. Shope,

deceased,

Plaintifé,

VS.

RICHAKD SCHWEIXER, SECRETARY OF

HEALTH AwD HUMAN SERVICES OF TH

UNITED STATES ,

STATE OF NORTH CAROLISS

CATO RF AT arte ws

wet ead we Peay Ts ra)

I, JAMES H. HOLLOWAY, being first

duly sworn, state tne following upon per-

sonal knowledge and oath:

1. I am co-counsel for Plaintiff in the

above entitled-action.

2. In the course of my investigation of

the matters and things at issue herein,

i had occasion, with prior approval of

the office of the United States Attor-

Appendix F

l3a

ney, to engage in a telephone conversa-

tion on March 12, 1982 with LEi? BARONE

an official of the Franklin District

Office of the Social Security Adminis-

tration. wnerein she related to me tne

That she personally knew the cececent

GEORGE SHOPE and that she was fanili-

ar with nis claim and claim file for

Social Security Disaoility benefits

That GEORGE SHOPE came into the TFranx-

lin Social Security Office on several

sccasions witnin tne time pericc re-

guired for requesting @ v@aring, anc

tnac he did in fact ask for nis hear-

inc on those occasions

/s/ JANES H. HOLLOWAY

JAMES mM. HOLLOWAY, Ariianct

Is TO AND SWORi 710 BEFORE lik this

h day ee arch, 1952.

/s/ PATRICIA h. MORLFILLD

WOLARY Pubule

My commission expires:

1/16/83 (SEAL)

—— oe

l3a(i)

rae y AS 4 mA aS. - eth Le Schenk in one a Ce ey oe ee ee eee ee en Ws

—— + = a ~

° « Pe ms "7" - —- Soe eee . Bi Be « = =e ageo %*. tS OWE Os. 6 @

a ~ P - geet Me ee

- = ‘ are \\, .

F: ; : . ise 13 Weiture

J x ’ -

Iw _ -

Ja: i oe

. Date } ins

_- -," -

beate: s8tea™s

e an

l= A

Y eClium * acm se

ds ° ~

Me rn ow ee Sy ec: c.e:78

-. t ° were 28ers E STS

3° - ac@-re

\ wees “.- one, PSS | ~- o

° -

‘ .

wa? > 050 8

. ‘ o > A on2an ison ec kaon & ad sb om Ae ast

‘ - . - - - "

ws ~ “ : baie Qe ~~

sad . oo - ‘ a . Au ae “

: = ~ cs ws cise

* 5 5 en - . - - ‘ . sciAeA ‘ ‘ we = 4?

' “15 ‘ ‘ ~ - “state - - . - * .

o ‘ a oat ran tae - -

. . ~ ° ~ ,

a oe one -

“< - we tute wie ~ we Si See ects mT

MJ — _-

, -

a - ’ Ate - e4

lf . » w . anf eeminat Tis Aotcorre Ou Mv r2cuest 3

— - . et} - e - + te nc mes

, ss n ? oi 220 yi So SFOs Bieta $i APTOS. os VOU

’ o* = - vonms obs ~ esr oF t=

o . a , mR Rene were Attian se? £ +0

GS 8ou - wSue we dS Few teed

er “ . "at erent - '

CG iediic ~ ' UP fie YAP eds

.7 0/12/73

Carzell:aca:%/22/i 5

_~ \ Ane

+oA so\"

6 i

‘

Enclosures:

OA-D1227 0 00 emt om. we Oe

HIEW Publication No. (SSA) 76—10282 BIIA-1

Boa Lasetd-

Department ol Ils olth, } ducoton, ond Weilere

5 Son ei Bawety Adaunnit einen

lha ¢

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.