Petition for Writ of Certiorari — Jensen v. Heckler

So"*2Z21\

NO

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1985

HERBERT 0. JENSEN,

PETITIONER,

Vv.

MARGARET HECKLER, SECRETARY,

OF HEALTH AND HUMAN SERVICES,

RESPONDENT.

" PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

HERBERT O. JENSEN

BOX 1497 NDSP

BISMARCK, N.D. 58502

PRO SE

QUESTIONS PRESENTED FOR RFVIEW

1.) Is Title 42 U.S.C. 402 (x)

unconstitutional, as enacted, and as

applied, because it. is punitive in

nature, and therefore violates Article

I, Section 9, Clause 3, of the United

States Constitution as a Bill of

Attainder?

2.) Is Title 42 U.S.C. 402 (x)

unconstitutional, as enacted, and as

applied, because it is punitive in

nature, for a past act, and therefore

violates Article I, Section 9, Clause 3,

of the United States Constitution as an

Ex Post Facto Law?

3.) Is Title 42 U.S.C. 402 (x)

unconstitutional, as enacted, and as

i

applied, because it violates Jensen's

rights of due process, and equal pro -

tection, pursuant to the 5th Amendment

of the United States Constitution ?

4.) Is Title 42 U.S.C 402 (x)

unconstitutional, as enacted, and as

applied, because it violates the grand-

father clause?

ii

TABLE OF CONTENTS

PAGE

OF ERSGE DOU «a0 64h ea adeeb eee 1

SURE RES COs ss 6b ss eee eae 2

STATUTORY PROVISIONS INVOLVED.... 2

STATEMENT OF THE CASE... ...cccees 3

REASONS FOR GRANTING THE WRIT.... 8

I. IS TITLE 42 U.S.C. 402

(x) unconstitutional,

as enacted, and as

applied, because it is

punitive in nature, and

therefore violates Art-

icle 1, Section 9, Clause

3 of the United States

Constitution as a Bill of

GS COGMONES . 66425445155 8

II. Is Title 42 U.S.C. 402

(x) unconstitutional,

as enacted, and as

ait.

IV.

applied, because it is

punitive in nature, for a

past act, and therefore

violates Article 1, Sec-

tion 9, Clause 3 of the

United States Constitution

Is Title 42 U.S.C. 402

(x) unconstitutional as

enacted, and as applied,

because it violates Jensen's

rights of due process and

equal protection, pursuant

to the 5th Amendment of the

United States Constitution?..13

Is Title 42 U.S.C. 402 (x)

unconstitutional, as enac-

ted, and as applied, be-

cause it violates the

CERTIFICATE OF SERVICE............. 30

IE Wh 55 6684s oh cn wantewcw wks la

APPEMDIX Be. . cece c cece scccccas 1b

UM hs oon deck eecacnccusecccaes le

APPENDIX D........ Saka ean eee ld

IPI Be oon cdc chs cacaccscns le

UE Fs Secs eee Leese a 1f

SE Ws 5s vec hoc eset lg

III

TABLE OF AUTHORITIES

CASES PAGE

Anderson v. Redman,

429 F. Supp. 1105 (Del. 1977)..... 24

Battle v. Anderson,

564 F. 2d 388 (Okla. 1977)........ 24

Burks v. Teasdale,

i Ae Pe Ss ere 24

Chapman v. Rhodes,

434 F. Supp. 1007 (Ohio 1977)..... 24

Cody v. Hillard,

599 F. Supp. 1024 (S.D. 1984)..... 24

Costello v. Wainwright,

SoS FE. 26 SOG CPR. APTI con cccsne 24

Finney v. Norby,

458 F. Supp. 720 (Ark. 1978)...... 24

Gates v. Collier,

SO0i F. 24 1291 Gliese. LPAS) .. a0 24

Johnson v. Levine,

450 F. Supp. 648 (Maryland 1978).. 24

Laaman v. Helgemoe,

437 F. Supp. 269 (N.H. 1977)...... 24

Mathews v. Eldridge,

424 U.S. 319, 340-41 (1976)....... 28

Palmigiano v. Garrahy,

443 F. Supp. 956 (R.I. 1977)...... 24

Pugh v. Locke,

406 F.Supp. 318 (Ala. 1976)....... 24

Ramos v. Lamb,

26 Cr. L. 2380 (Colo. 1980)....... 24

Williams v. Edwards,

547 F. 2d 1206 (La. 1977)......... 24

CONSTITUTION

5 U.S.C 8101 et seq............... 17

D UsBcG FPee cc ccvcccsevessweseess 26

Se U.G.0. ESS Cbdc cc cvtnavcvcsuse 2

38 U.S.C. 3113 (a) (1) and (d)..... 2,14

G2 B.8.C. GOR Gidwk ccccaes 1,11,2,5,8,

9, 10,11,13,14,15,18,19,20,21,22,25,26

SZ F.8.0. 40S Ce)ssandeawessce sens 6

SS U.8.0. Sb? Gd. vccswssndneweans 20

Me B.3.0. SEP Cepivccsv'eweass 3,4,5,26

Article 1, Section 9, Clause 3 ...

(ieee ee weebsb seen ees | Eee

5th Amendment of United States

eo re ii,2,14,16,19

North Dakota Century Code

COOBCOE 22.4°S2°RL C5) 6. on cacncs eit

Chapter 12.1-32-02 (1.)(c)(1) .. 2,21

Comes now the petitioner, Herbert 0.

Jensen, who respectfully requests that this

Honorable Court issue a Writ of Certiorari

to review the order of the United States

Court of Appeals for the Eighth Circuit,

dated July 3, 1985.

The petitioner respectfully requests

that this Honorable Court give its most

liberal consideration and interpretation to

this inartful petition, by overlooking any

defects in form or content, because it is

a pro se petition done without benefit of

legal counsel.

OPINION BELOW

A copy of the order of the United

States Court of Appeals for the Eighth

Circuit, dated July 3, 1985, is attached

hereto as Appendix A.

JURISDICTION

This Court's jurisdiction is invoked

under Title 28 U.S.C. 1254 (1).

STATUTORY PROVISIONS INVOLVED

The petitioner respectfully suggests

that Titles 38 U.S.C 3113 (a)(l)and (d),

42 U.S.C 402 (x), Article 1, Section 9,

Clause 3 of the United States Constitution,

the 5th Amendment of the United States

Constitution, and Chapters 12.1-32-01 (5),

and 12.1-32-02 (1.)(c)(1) of the North

Dakota Century Code, are relevant to this

‘petition, and copies of said statutes,

article, Constitutional Amendments, and

North Dakota Century Code, are attached

hereto as Appendix B, C, D, E, F, and G,

respectively.

STATEMENT OF THE CASE

In 1974, after suffering two serious

heart attacks, the petitioner, Herbert 0.

Jensen, a retired 20 year veteran of the

United States Air Force, applied for, and

began receiving, Social Security Disability

benefits. |

In 1977, Jensen was convicted of 2nd

degree murder, and he was sentenced to

serve 30 years in the North Dakota State

Penitentiary, where he is still presently

incarcerated.

In 1980, congress amended the Social

security Act to prohibit any individual,

in prison for a felony conviction, from

receiving any monthly Social Security

disability benefits during the period of

incarceration. (Title 42 U.S.C. 423 (f))

In July 1981, Jensen was notified by

the Social Security Administration that his

monthly disability benefits were going to

be suspended during the remainder of his

incarceration, effective back to October

1980, pursuant to the new statute, Title

42 U.S.C. 423 (£), and that he was also

being billed for overpayment by Social

Security in the amount of almost $4,000.

Jensen did not challenge the suspension

of his monthly disability benefits, or the

billing for overpayment, in any type of

aduwinistrative appeal to the Social

Security Administration.

In October 1981, Jensen filed a civil

action against the Secretary of the Social

Security Administration, in the United

States District Court for the District of

North Dakota, claiming that, inter alia,

the statute in question violated his

cn

constitutional rights of due process, equal

protection, ex post facto, and bill of

attainder, and he sought declarative,

injunctive, and compensatory relief.

In August 1982, the United States

District Court for the District of North

Dakota, dismissed Jensen's claims after

finding that he had not exhausted his

administrative remedies in the Social

Security Administration, and that nothing

had been shown as a basis for the court

to oberctos jurisdiction over the subject

matter.

In September 1982, Jensen appealed

the decision of the United States District

Court to the United States Court of Appeals

for the Eighth Circuit.

In April 1983, congress passed some

amendments to the Social Security Act which

struck down Title 42 U.S.C. 423 (f), and

added Title 42 U.S.C. 402 (x), which not

only suspended the disability benefits of

an incarcerated felon in prison, but also

suspended the old age and survivor's

benefits.

In July 1983, the United States Court

of Appeals for the Eighth Circuit reversed

and remanded the decision of the United

States District Court for the District of

North Dakota, by stating that because

Jensen was acting pro se, the United States

District Court should have construed his

pleadings more liberally, and that juris-

diction did exist under Title 42 U.S.C.

405 (g), because Jensen's claim was

collateral to his substantive rights to

‘Social Security benefits.

In October 1984, on remand from the

United States Court of Appeals for the

Eighth Circuit, the U.S. District Court

for the District of North Dakota once again

dismissed Jensen's claims by stating that

he had not been denied any 5th Amendment

rights of due process or equal protection,

and that the statute in question was not

an ex post facto law, or a bill of attainder.

In December 1984, Jensen again appealed

to the United States Court of Appeals for

the Eighth Circuit.

On July 3, 1985, the United States

Court of Appeals for the Eighth Circuit

affirmed the decision of the United States

District Court for the District of North

Dakota, by stating that Jensen's rights

of due process and equal protection had

not been violated, and that the statute

in question was not an ex post facto law,

nor a bill of attainder.

REASONS FOR GRANTING THE WRIT

| I

Title 42 U.S.C. 402 (x) is uncon-

stitutional, as enacted, and as applied,

because it is punitive in nature, and

therefore violates Article 1, Section 9,

Clause 3, of the United States Consti-

tution as a bill of attainder.

A bill of attainder is a legislative

act, no matter what kind of form, that |

applies either to a named individual,

or to an easily ascertainable group of

individuals, in such a way as to inflict

a punishment on them without benefit of

a judicial trial, or without any kind

of pronouncement of a conviction, or a

judgement, in the ordinary sense of a

judicial proceeding.

The passage of such a law is

expressly forbidden by the United States

Constitution.

Title 42 U.S.C. 402 (x) shows a

congressional intent to impose an arbitrary

and capricious punishment, and retribution,

along with a deterrent for future conduct,

upon a person, or a small group of persons,

who are receiving Social Security disability

benefits, and have been convicted of a

felony and sent to prison.

The statute singles out, and punishes,

not every person who has committed a crime,

or every person who is collecting Social

Security disability benefits, but only

those people, from a-small class of easily

identified people, who have been convicted

of a felony, and then sent to prison.

The punitive legislation adds an

arbitrary additional punishment for a

felony without any consideration for the

type of crime, the seriousness of the

crime, the nature of the offender, the

10.

past record of the offender, or the length

of the sentence.

Jensen has had a punishment inflicted

upon him, without benefit of any kind of

judicial trial, or pronouncement of any

judgement or sentence, and without any

appeals. This is a clear violation of

Article 1, Section 9, Clause 3 of the

United States Constitution as a bill of

attainder.

II

Is Title 42 U.S.C 402 (x) unconsti-

tutional, as enacted, and as applied,

because it is punitive in nature, for a

past act, and therefore violates Article

1, Section 9, Clause 3 of the United

States Constitution as an ex post facto

law?

Ba.

An ex post facto law is the imposi-

tion of a legislative punishment, for a

past act, that was not punishable at the

time the act was committed, which increases,

or imposes an additional punishment, over

what was prescribed by law at the time of

the offense, without benefit of any kind

of judicial trial, or without any kind

of judgement or sentence,and without any

kind of an appeal.

In the instant case, Title 42 U.S.C.

402 (x) adds an additional punishment to

Jensen's 30 year sentence, for a crime

that was committed tn 1974, which was

over 6 years before the Social Security

disability statute was enacted, and it

inflicts a greater punishment upon Jensen,

in a way that was not possible for him

to be punished by the state when the

actual judgement and sentence was

+ -

pronounced, by taking away his earned

right of receiving Social Security

disability benefits.

Jensen argues that he had a consti-

tutional right to-collect Social Security

disability benefits, that had already

been approved long before his sentence

to prison, and that he has the same

right to collect those benefits after

his imprisonment, unless that right

was specifically taken away from him

by the terms of the state punishment

for his crime, which was not the case.

This is a clear violation of Article

1, Section 9, Clause 3 of the United

States Constitution as an ex post facto

law.

ee

III

Is Title 42 U.S.C. 402 (x) unconsti-

tutional, as enacted, and as applied,

because it violates Jensen's rights of

due process and equal protection, pursuant

to the 5th Amendment of the United States

Constitution?

1.) Petitioner Jensen, through his

lifelong contributions to the Social

Security disability program, including

his career as a 20 year veteran in the

United States Air Force, has earned the

right to participate in the program, and

receive benefits for his disability.

The payments he had been receiving

for six years, were suspended solely

because he had been convicted of a

felony and sent to prison, and not

because of any change in his disability

status.

14.

Because Jensen's original 30 year

sentence for a felony conviction was

increased by the application of Title

42 U.S.C 402 (x), without benefit of

any trial, conviction, or appeal, and

because the statute relates solely to

an easily identifiable group of people,

namely, those who are receiving Social

Security disability benefits as a

convicted felon in prison, and not all

people receiving Social Security

disability benefits, his rights of due

process and equal protection, pursuant

to the 5th Amendment of the United States

Constitution, have been seriously violated.

2.) Title 38 U.S.C. 3113 (d)

suspends disability benefits to veterans

who have been convicted of a felony and

sent to prison, after the date of the

enactment of the law, October 7, 1980,

15.

and for any veteran incarcerated for a

felony who applies for disability after

that date. (emphasis mine)

However, any veteran convicted of

a felony, and sent to prison before the

date of October 7, 1980, and who is

getting disability benefits before the

conviction and imprisonment, will con-

tinue to receive the disability benefits

as long as he is in prison, even though

he might be convicted of the same crime

as Jensen, on the same date as Jensen,

and receive the same sentence as Jensen,

and be sent to the same prison as Jensen,

while Jensen will have his Social Security

disability benefits suspended, pursuant

to the new statute, 42 U.S.C. 402 (x).

Jensen argues that this difference

in the two statutes violates his rights

of due process and equal protection,

16.

pursuant to the 5th Amendment of the

United States Constitution, because it

unlawfully discriminates against Jensen

as a Social Security disability recipient,

compared with a veterans disability

benefit recipient, and that there is no

rational basis for the difference in the

two laws.

3.) All the employees working in

the private sector of the economy, who

pay into a private disability insurance

fund, and end up in prison for a felony

conviction, will not have his or her

disability benefits suspended while in

prison, even though Jensen would have

his Social Security disability benefits

suspended. This is another clear vio-

lation of Jensen's rights of due process

and equal protection, because the new

statute arbitrarily discriminates against

Ae.

Social Security disability benefit

recipients who are in prison for a

felony conviction.

4.) All the employees of the

Federal Government, who work in all the

multitude of jobs, in all the branches

of the Federal Government, including the

congressmen who pass the laws, are all

protected by a disability insurance

program, which they pay into during

their employment, pursuant to 5 U.S.C.

8101 et seq.

If one of these federal employees

becomes disabled, he will be able to

collect disability benefits from the

Government insurance plan. If that same

individual ends up in prison for a felony

conviction, he will continue to receive

the disability benefits all the time he

is in prison. It is only people who are

18.

collecting Social Security disability

benefits who will have their benefits

suspended if they end up in prison for

a felony conviction.

In other words, a federal employee

who was collecting federal disability

benefits, and who committed the same

crime as Jensen, on the same day as

Jensen, and received the same sentence

as Jensen, will be able to continue

receiving benefits during the entire

period of incarceration, whereas Jensen

cannot collect his Social Security dis-

ability benefits, even though the two

of them might be in the same prison,

in cells right next to each other.

Jensen argues that 42 U.S.C. 402 (x)

discriminates against him, as a Social

Security disability recipient, in compar-

ison to the federal employee who is getting

19.

federal disability benefits. This is a

clear violation of Jensen's rights of due

process and equal protection, pursuant to

the 5th Amendment of the United States

Constitution.

5.) If Jensen, instead of ending

up in prison, had ended up in a veteran's

hospital, or a public health service

hospital, or an alcohol treatment program,

or a nursing home, or a mental hospital,

or a hospice, he would still continue to

collect his social security disability

benefits. It is only because he ended up

in prison, for a felony conviction, that

his benefits were suspended. This is yet

another clear indication of the arbitrary

discrimination of 42 U.S.C. 402 (x), and

shows the denial of Jensen's due process

and equal protection rights.

20.

6.) Jensen was sentenced to serve

a prison sentence for a felony. As a

result, he had his social security dis-

— ability benefits suspended. However,

those people who have committed a felony,

and receive only probation, or a fine,

will continue to receive their social

security disability benefits. Title

42 U.S.C. 402 (x) is a clear discrim-

ination against Jensen because he has

been sent to prison, and not because

he has committed a felony. This is a

due process and equal protection vio-

lation of the 5th Amendment.

7.) Jensen was insured under

Title 42 U.S.C. 417 (g) "Benefits in

case of veterans" and was paying a

monthly premium to the Federal Hospital

Insurance Fund by premium deduction out

of social security benefits. When his

benefits were suspended, Jensen had to

make other arrangements to pay the

2h.

Jensen's rights of due process and equal

protection have been violated.

8.) Pursuant to North Dakota law,

Chapters 12.1-32-01 (5), and 12.1-32-02

(1.)(c) (1) of the North Dakota Century

Code, a person convicted of a Class A

misdemeanor, which carries a maximum

penalty of one year in prison, may be

sent to the state correctional facility

(prison), a county jail, or the state

farm.

In other words, a person collecting

social security disability benefits, who

is convicted of a Class A misdemeanor,

cannot have his disability benefits sus-

pended, pursuant to 42 U.S.C. 402 (x),

even though he is sent to the state prison,

yet Jensen will have his benefits suspended.

Even if the person goes to the county jail

for the full year, he can't lose his dis-

ability benefits.

ae.

Jensen argues that Title 42 V.S.C.

402 (x) unlawfully discriminates against

him, because he was convicted of a felony,

and not because he was sent to prison.

Both Jensen, and the other person con-

victed of a Class A misdemeanor, might

end up in the same prison, but only Jensen

would lose his disability benefits. This

is a clear violation of Jensen's due pro-

cess and equal protection rights.

9.) The argument might be presented,

as noted in the opinion of the U.S. Court

of Appeals for the 8th Circuit, dated July

3, 1985, that because an inmate's needs

are being met in prison, especially those

needs of food, clothing, shelter, and

medical care, then chit is no need to

give that person any social security

disability benefits.

However, this argument is based on

a false assumption that an inmate's needs

23.

are being met in an adequate manner while

that person is in prison. |

Jensen argues that this Honorable

Court is aware of the fact that the major-

ity of state prison systems in the United

States have either been declared unconsti-

tutional by the courts, or that they are

under litigation for unconstitutional

violations.

The living conditions in virtually

every prison in the country fall far short

of the adequate care for a civilized society

that is required by the constitution. The

congess has recognized this face when it

passed the "Civil Rights of Institution-

alized Persons Act."

In addition, even Jensen is under

present litigation in the United States

District Court for the District of North

Dakota, against the North Dakota State

24.

Prison, for inadequate and unconstitu-

tional prison conditions.

The following list is just some of

the state prison systems that have been

declared unconstitutional in recent years:

Pugh v. Locke, 406 F. Supp. 318 (Alabama

1976), Finney v. Norby, 458 F. Supp. 720

(Arkansas 1978), Ramos v. Lamm, 26 Cr.L.

2380 (Colorado 1980), Anderson v. Redman,

429 F. Supp. 1105 (Delaware 1977), Costello

v. Wainwright, 553 F. 2d 506 (Florida 1977),

Williams v. Edwards, 547 F. 2d 1206

(Louisiana 1977), Johnson v. Levine, 450

F. Supp. 648 (Maryland 1978), Gates v.

Collier, 501 F. 2d 1291 (Mississippi 1978),

Burks v. Teasdale, 603 F. 2d 59 (missouri

1979), Laaman v. Helgemoe, 437 F. Supp.

269 (New Hampshire 1977), Chapman v. Rhodes,

434 F. Supp. 1007 (Ohio 1977), Battle v.

Anderson, 564 F. 2d 388 (Oklahoma 1977),

y

Palmigiano v. Garrahy, 443 F. Supp. 956

(Rhode Island 1977), and just recently,

in a sister state to North Dakcta, Cody

v. Hillard, 599 F. Supp. 1024 (South

Dakota 1984), and, in addition, there

are numerous other states where litiga-

tion is now in progress regarding the

unconstitutional prison conditions.

IV.

Is Title 42 U.S.C. 402 (x) uncon-

stitutional, as enacted, and as applied,

because it violates the grandfather

clause?

Jensen argues that the sole function

of the grandfather clause is to prevent

the harsh and unfair operation of a stat-

utory change which threatens to deprive

an individual of a constitutional right

which had already been approved prior to

the change in the law,

26.

In the instant case, Jensen had

beeri approved to receive social security

disability benefits for over six years

prior to the enactment of Title 42 .S.C.

423 (f) and 42 U.S.C 402 (x). When Jensen's

benefits were suspended, his rights of due

process and equal protection were violated

because there is no grandfather clause

included in the new statute.

CONCLUSION

The "Hiss Act", Title 5 U.S.C. 8312,

was enacted in 1954 to prevent Algier Hiss

from receiving a federal pension because

of his crime. The "Act" had the effect

of denying benefits to a great many of

Government employees who were convicted.

of much less serious crimes, such as fraud,

bribery, and embezzelment, and therefore,

4

the "Act" was amended in 1961 to restore

benefits to those individuals.

‘The entire history of our legisla-

ture demonstrates that these types of

laws enacted as "punishments" have been

wrong. -

The suspension of social security

disability benefits to an incarcerated

prison felon, because their basic needs :

‘are being met in prison, is inconsistent

with the entire philosophy behind the

original intent of the social security

system.

Social security is not now, nor

has it ever been, a system based on need.

It is not a handout. It is not a charity.

It is an earned right based on individual

contributions to the system from work in

the labor force.

The argument might be raised that

convicted felons sent to prison lose the

eee

28.

right to vote, and to hold public office,

so why can't they lose the right to their

social security disability benefits?

However , this argument overlooks the

fact that these rights to vote and hold

office are not earned rights, but rights

that we are born with, and that social

security disability benefits are an

earned right from years of hard work,

and contributing to the system.

In Mathews v. Eldridge, 424 .S.

319, 340-41, (1976), the United States

Supreme Court noted that eligibility for

social security disability benefits is

not based upon financial need, and it is

unrelated to the worker's income, or the

‘support from many other sources, such as

earnings of other family members, work-

mens compensation, tort claims awards,

savings, private insurance, public or

29.

private pensions, veteran's benefits,

food stamps, public assistance, or the

many other programs, both public and

private, which contain provisions for

disability payments affecting a sub-

stantial portion of the work force.

Therefore, based on all the fore-

going statements and reasons presented

in this petition and appendix, Jensen

respectfully requests that this Honorable

Court grant his petition for a Writ of

Certiorari.

Dated this 2rd day of A Ug us/ 1985.

oe 7

orhel O.

erbert 0. sen

Box 1497 ND

Rismarck, N.D. 58502

Subscribed and sworn to before me on this

Aad day of Lhe gu 5t 1985.

My commission expires

* 15%

ot ic

30.

CERTIFICATE OF SERVICE

It is hereby certified that true

and correct copies of the foregoing

Petition for a Writ of Certiorari, with

appendix, to the United States Court of

Appeals for the 8th Circuit, were mailed

on the %-1 day of Avgesl 1985,

with postage prepaid, to Office of the

Clerk, Supreme Court of the United States,

Washington, D.C..20543, and to Jerome C.

Kettleson, Ass't U.S. Attorney, P.0. Box

699, Bismarck, N.D. 58502.

Nerbert O. sen

Box 1497 ND

Bismarck, N.D. 58502

- Subscribed and sworn to before me on this

marl day of Avau sy 1985.

1 eal: /

My commission expires

ae

la.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 84-2454

Herbert O. Jensen, )

)

Appellant, ) Appeal from the

) United States

Vv. ) District Court

) for the District

Margaret Heckler, ) of North Dakota.

Secretary, of )

Health and Human )

Services,

Respondent. )

Submitted: May 2, 1985

Filed: July 3, 1985

Before ROSS, ARNOLD, and BOWMAN,

Circuit Judges.

2a.

PER CURIAM.

Herbert 0. Jensen appeals pro se

from an order of the district court}

® granting summary judgement in favor of

the Secretary of Health and Human Ser-

vices (Secretary). On remand from this

court, Jensen v. Schweiker, 709 F.2d

1227 (8th Cir. 1983), the district court

found that 42 U.S.C. 402 (x)(1) was con-

stitutional. The statute suspends pay-

ment of social security benefits to in-

carcerated felons who are not involved

in an approved rehabilitation program.”

the Honorable Bruce Van Sickle,

United States District Judge for the

District of North Dakota.

*Section 42 U.S.C. 402 (x) (1)

provides:

Notwithstanding any other pro-

vision of this subchapter, no monthly

benefits shall be paid under this

3a.

For the reasons discussed below, we

affirm.

I. BACKGROUND

The facts of this case are simple

and uncontroverted. In 1974, after two

heart attacks, Jensen began receiving

social security disability benefits.

In 1977, he was convicted of second

degree murder, and is currently servin

a twenty year prison sentence. In 198

Congress amended the Social Security

Act to roe phe that no benefits be paid

to any individual for any month during

which he or she is in prison on a felony

conviction (and is not participating in

an approved rehabilitation program).

section or under section 423 of this

title to any individual for any month

during which said individual is con-

fined in a jail, prison, or other penal

institution or correctional facility,

pursuant to his conviction of an offense

which constituted a felony under appli-

cable law, unless such individual is

actively and satisfactorily participa-

ting in a rehabilitation program which

has been specifically approved for such

individual by a court of law, and, as

determined by the Secretary, is expected

to result in such individual being able

to —_ in substantial gainful activity

upon release and within a reasonable time.

4a.

42 U.S.C. 423 (f£f). In July, 1981 Jensen

was notified that his benefits were sus-

pended effective October, 1980 pursuant

to this statute * * * ,

Jensen v. Schweiker, 709 F.2d at 1228.

The Social Security Amendments of 1983,

Pub. L. No. 98-21, 97 Stat. 65 (1983),

deleted section 423 (f) and substituted

in its place section 402 (x), which

suspends old age benefits in addition

to disability benefits to incarcerated

felons.

In 1981 Jensen filed suit against

the Secretary, asserting that section

423 (£) was unconstitutional in that it

violated the Fifth and Fourteenth Amend-

ments and was an ex post facto law and

bill of attainder. The district court

dismissed the petition for failure to

exhaust administrative remedies. This

Court reversed, finding that jurisdic-

tion existed because Jensen's challenge

f

5a.

to the statute was collateral to his

substantive claim for disability ben-

efits and he had presented a colorable

constitutional claim. Id. at 1231.

This Court specifically noted that

Jensen's due process claim should be

analyzed in light of Flemming v.

Nestor, 363 U.S. 603 (1966), which

held that termination of social secur-

ity benefits to certain deportable

aliens was constitutional. This Court

also noted that Jensen's ex post facto

claim had "some merit." Id. On remand

the district court held that the statute

did not violate due process, nor was the

statute an ex post facto law or bill of

attainder.

II. ANALYSIS

A. Due Process/Equal Protection

6a.

In analyzing Jensen's due process/

equal protection challenge that the stat-

ute creates an irratioual classification

by suspending disability benefits to

incarcerated felons, the district court

first noted that the Supreme Court has

held that social security benefits are

noncontractual benefits and that "the

due process clause can be thought to

interpose a bar only if the statute

manifests a patently arbitrary class-

ification, utterly lacking in rational

justification." Flemming v. Nestor,

363 U.S. U.S. at 611.

The district court coriectly

found that the suspension of benefits

to incarcerated felons who are not par-

ticipating in an approved rehabilitation

program is rationally related to the

Social Security Act's policy of compen-

sating for a loss of earnings without

7a.

providing a disincentive for rehabil-

itation. The Third Circuit has recently

held that "the exclusion of felons from

disability payments while they are in-

carcerated and not engaged in a rehabil-

itation program has a perfectly rational

justification in the fact that the ex-

penses of shelter, food, clothing and

medical care, which it is the purpose

of disability payments to heip defray,

are, in the case of an incarcerated

felon * * * being provided for him free

of charge by the prison officials.”

Washington v. Secretary of Health and

Services, 718 F.2d 608, 611 (3rd Cir.

1983) (citing S. Rep. No. 96-987, 96th

Cong., 2nd Sess., reprinted in 1980

U.S. Code Cong. & Ad. News, 4787, 4794-

95); Accord Pace v. United States, 585

F. Supp. 399, 402-03 (S.D. Tex. 1984);

8a.

Anderson v. Social Security Administra-

tion, 567 F. Supp. 410, 412 (D. Col.

1983).

As further evidence that the

statute was tailored to the Act's goal

of rehabilitation, the district court

correctly noted that the statute did

not suspend payments to an inmate who

participated in an approved rehabil-

itation program and that benefits were

not suspended to the inmate's depen-

dents. We also agree with the district

court that Congress had another per-

missable purpose in enacting the statute

which was to avoid discipline problems

which cash payments to inmates would

create. See Pace v. United States,

585 F. Supp at 401 (citing Receipt of

Social Security Renefits by Persons

Incarcerated in Penal Institutions:

9a.

Hearings Before Subcomm. on Social

Security of House Comm. on Ways and

Means, 96th Cong., 2nd Sess. (1980).

B. Ex Post Facto Law/Bill of Attainder

"An ex post facto law is ‘the im-

position of what can fairly be designa-

ted punishment for past acts’ * * *

(I)f a statute is enacted to punish a

class, rather than regulate a ‘present

situation,’ then the statute may violate

the ex post facto clause." Jensen v.

Schweiker, 709 F.2d at 1230 (quoting

De Veau Braisted, 363 U.S. 144, 146

(1960)). In order to constitute a

bill of attainder, a statute must im-

pose a punishment upon a designated

person or class of persons without the

benefit of trial. Nixon V. Administra-

tor of Genera} Services, 433 U.S. 425,

10a.

468 (1977); United States v. Brown,

381 U.S. 437, 445 (1965).

We agree with the Secretary that

the statute is neither an ex post facto

law nor a bill of attainder because the

suspension of a noncontractual benefit

cannot be considered a punishment. In

Flemming v. Nestor, 363 U.S. at 617,

the Supreme Court held that "the sanction

(of) the mere denial of a noncontractual

benefit" without more did not evidence

a Congressional intent to punish. The

Court noted that "(n)o affirmative dis-

ability or restraint (wa)s imposed * * *,"

Id. Although in this case there is some

indication that Congress intended the

statute in part to be punitive, Jensen

v. Schweiker, 709 F.2d at 1230 (cita-

tions therein); Pace v. United States,

585 F. Supp at 401 & n.4, this court

lla.

need not invalidate the statute. Where,

re

as here, the rational connection’ to

nonpunitive ends remains as a rationale

for enacting this provision," a court

should not "'reject all those alterna-

tives * * * save that one which might

require invalidation of the statute.'"

Pace v. United States, 585 F. Supp at

401 (quoting Flemming v. Nestor, 363

U,S. at 621). See also Anderson v.

Social Security Administrator, 567

F. Supp. at 412-13 (423 (f£) remedial

rather than punitive).

Accordingly, the judgement of

the district court is affirmed.”

3In his brief, Jensen argues

that he is protected from suspension

of his social security disability ben-

efits because of the “grandfather”

clause contained in 38 U.S.C. 3113,

12a.

A true copy.

Attest:

Clerk, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

which provides for a suspension of

veteran's benefits to incarcerated

felons who were convicted after

October 1980. However, this case

deals with social security benefits,

not veteran's benefits, and section

402 (x) does not contain a "grand-

father clause."

lb.

APPENDIX B

Title 38 U.S.C. 3113.

Limitation on payment of compensa-

tion and dependency and indemnity comp-

ensation to persons incarcerated for

conviction of a felony.

(a)(1) To the extent provided in

subsection (d) of this section, any

person who is entitled to compensa-

tion or to dependency and indemnity

compensation and who is incarcerated

in a Federal, State,or local penal

institution for a period in excess of

sixty days for conviction of a felony

shall not be paid such compensation

or dependency and indemnity compensa-

tion, for the period beginning on the

sixty-first day of such incarceration

and ending on the day such incarcera-

ends, in an amount that exceeds--

2b.

(d) The provisions of subsection (a)

of this section shall apply (1) with

respect to any period of incarceration

of a person for conviction of a felony

committed after the date of the enact-

ment of this section (enacted Oct. 7,

1980), and (2) with respect to any

period of incarceration on or after

October 1, 1980, for conviction of a

felony of a person who on October l,

1980, is incarcerated for conviction

of such felony and with respect to

whom the action granting an award of

compensation or dependency and indem-

nity compensation is taken on or after

~guch date.

le.

APPENDIX C

Title 42 U.S.C 402 (x)

Limitation on payment to prisoners (1)

Notwithstanding any other provision of

this title, no monthly benefits shall

be paid under this section or under

section 223 (42 U.S.C.S. 423) to any

individual for any month during which

such individual is confined in a jail,

prison, or other penal institution or

correctional facility, pursuant to his

conviction of an offense which consti-

tuted a felony under applicable law,

unless such individual is actively and

satisfactorily participating in a reha-

bilitation program which has been spe-

cifically approved for such individual

by a court of law and, as determined

by the Secretary, is expected to result

2c.

in such individual being able to engage

in substantial gainful activity upon

release and within a reasonable time.

ld.

APPENDIX D

Article 1, Section 9, Clause 3, of the

United States Constitution.

Bill of Attainder - Ex Post Facto Laws.

No Bill of Attainder or ex post facto

Law shall be passed.

le

APPENDIX E

AMENDMENT 5

S$ Criminal actions - Provisions concerning -

Due process of law and just compensation

clauses. |

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment

of a Grand Jury, except in cases ari-

sing in the land or naval forces, or in

r the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same off-

ense to be twice put in jeopardy of

life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law; nor shall private

property be taken for public use, with-

out just compensation.

az.

APPENDIX F.

Chapter 12.1-32-01 (5) of the North

Dakota Century Code.

Classification of Offenses - Fer.alties.

Offenses are divided into seven classes,

which are denominated and subject to

maximum penalties, as follows:

(5) Class A misdemeanor, for which a

maximum: penalty of one year's imprison-

ment , a fine of one thousand dollars,

or both, may be inposed.

l g.

APPENDIX G.

Chapter 12.1-32-02 (1.)(c)(1) of the

North Dakota Century Code.

Sentencing alternatives. - Credit for

time in custody - Diagnostic testing.

1. Every person convicted of an

offense who is sentenced by the court

shall be sentenced to one or a combin-

ation of the following alternatives,

unless the sentencing alternatives are

otherwise specifically provided in the

statute defining the offense:

c. A term of imprisonment,

including intermittent imprisonment:

(1) Ina state correctional

facility, a regional corrections center,

a county jail, or in the state farm, in

accordance with section 12-51-07, if

convicted of a felony or a Class A

misdemeanor.