# Appendix — Shope v. Heckler > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0111%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 464 U.S. 991 ## 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 r IC} retar Health and Human Services of th 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 la 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 r+ 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. 2a 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 va c 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 ST iA are 7) ~*, March Holloway, Esa. Lordeon, isq. urn, AUSA wer 44h NO OF is enNncLoserc. .. -* (FRAP 4J) my r- @ ct » “de ‘cranted compelling based on M @ ¢ or a need to thers will be denied. i+ 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 3a 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. @ tf ae 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(s_ Willian K. Slate, ZI of Appeals Fourth Circuit Appendix C 4a 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) rm Med GS In CHWETKL ann anew oow hither PLIORAwDU OF LLCISION The Plaintift brought this action pur- Suant to 2 _ “~~ 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. 7a 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" rh 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- 9a 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 tt 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 ”" en 2 ; — poe Saeee ee a Aa UT allen i ee Om Om ORE, 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 - “ ® 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 e eo ____Appendix Go. _. — ~~ -—.-— — © eee +o eee © oe 5 Son ei Bawety Adaunnit einen lha ¢ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0111%3A2. Public record. Not legal advice.