Opposition Brief — Jensen v. Heckler

Supreme Court, U.S.

FILED

(23 OCT 11 0

No. 85-221

JOSEPH F. SPANIOL, JR.

CLERK

| In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

HERBERT O. JENSEN, PETITIONER

V.

MARGARET M. HECKLER, SECRETARY OF

HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Buccheri-Bianca v. Heckler, 768 F.2d

SEU 5s 6 KA SEN RAN CROENC ASA SEMA S0 S45 05095 3-4

Cummings v. Missouri, 7\ U.S.

gg BR a ne ee re 4

Dandridge v. Williams, 397 U.S. 471 ........... 6

De Veau v. Braisted, 363 U.S. 144 ........... 4-5

Flemming v. Nestor, 363 U.S.

OU ogi 06sec sees Oians scenes a 43,6

Hopper v. Schweiker, 596 F. Supp. 689 ........ 4

Idaho Department of Employment v. Smith,

kk Pe eer ree ete eee 6

Jensen v. Schweiker, 709 F.2d 1227 ............ 2

Jones v. Heckler, No. 84-1598

f fe go ee ae errs 3

Lindsley v. Natural Carbonic Gas Co.,

ee reer ee Tee ere Tee 6

Mathews v. Eldridge, 424 U.S.319 ............ 2

Nixon v. Administrator of General Services,

EE ache ak hae ke eso 6460s 08d oo 8 4

Pace v. United States, 585 F. Supp.

ESS 2,2 a eS Pee ee ee 3, 4,5

Richardson v. Beicher, 404 U.S. 78 ...........- 6

Schweiker v. Wilson, 450 U.S. 221 ........... 3,6

(I)

II

Page

Cases—Continued:

Washington v. Secretary of HHS,

og ft BP er eee 4,5

Weaver v. Graham, 450 U.S. 24 ............4.- 4

Constitution and statutes:

U.S. Const. :

Ast. £89, C1 FD suchouvasenesteeseseanees 1

Amand. V ncvcvcctvsvneteveueenssesires |

Socia! Security Act, 42 U.S.C. (& Supp. I)

301 et seq. :

42 U.S.C. SQA Be 9 66 6c keer ebinces 4

42 U.S.C. (Supp. I) 402(x)(1) ............ 2

42 U.S.C. GEREIED ceavactvitecccicisiesss l

42 U.S.C. GRRE hkerewn 000054445 450008 2

Pub. L. No. 94-473, $ 5(c), 94 Stat.

y 4. eT ee EO a eer 2

Pub. L. No. 98-21, § 339, 97 Stat. .

ci errs ee ere 2

Miscellaneous:

Receipt of Social Security Benefits

by Persons Incarcerated in Penal

Institutions: Hearings Before the

Subcomm. on Social Security of

House Comm. on Ways and Means,

96th Come. 26 BOGk. CHRD 6606 ks ec cccscccdas. 5

S. Rep. 96-987, 96th Cong., 2d Sess.

4 PP or rene pe Ter 5

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-221

HERBERT QO. JENSEN, PETITIONER

V.

MARGARET M. HECKLER, SECRETARY OF

HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner contends that 42 U.S.C. (Supp. I) 402(x)(1),

which suspends payment of social security benefits to incar-

cerated felons who are not participating in approved re-

habilitation programs, constitutes a bill of attainder and ex

post facto law under Article I, Section 9, Clause 3 of the

Constitution and violates his due process and equal protec-

tion rights under the Fifth Amendment to the Constitution.

1. In 1974, after two heart attacks, petitioner began

receiving social security disability benefits under 42 U.S.C.

423(a)(1). In 1977, petitioner was convicted of second

degree murder and was sentenced to serve 30 years in the

North Dakota State Penitentiary, where he is still incarcer-

ated. In 1980, Congress amended the Social Security Act

to require that no disability benefits be paid to any individ-

ual “for any month during which such individual is confined

(1)

2

in a jail, prison, or other penal institution or correctional

facility, pursuant to his conviction of an offense which

constituted a felony under applicable law, unless such indi-

vidual is actively and satisfactorily participating in [an

approved] rehabilitation program.” Pub. L. No. 94-473, §

5(c), 94 Stat. 2265 (codified at 42 U.S.C. 423(f)(1) (repealed

1983)). In 1983, Congress reenacted this provision as Sec-

tion 402(x){1) of Title 42, and expanded it to cover recip-

ients of old age benefits in addition to disability benefits.

Pub. L. No. 98-21, $ 339, 97 Stat. 133.

After being notified that his disability benefits were being

suspended as of the effective date of Pub. L. No. 94-473

during his incarceration, petitioner filed the instant action

in the United States District Court for the District of North

Dakota, contending that the statute violated his constitu-

tional rights of due process and equal protection and consti-

tuted an ex post facto law and bill of attainder. The district

court dismissed the complaint for petitioner’s failure to

exhaust his administrative remedies, but the court of

appeals reversed and remanded for further proceedings,

finding that petitioner’s challenge to the statute was collat-

eral to his substantive claim of entitlement and presented a

colorable constitutional challenge within the meaning of

this Court’s decision in Mathews v. Eldridge, 424 U.S. 319

(1976). Jensen v. Schweiker, 709 F.2d 1227, 1229-1231

(8th Cir. 1983).

On remand, the district court determined that petitioner’s

constitutional claims were without merit (Pet. 6-7; Pet.

App. 5a). In a per curiam opinion (Pet. App. la-12a), the

court of appeals affirmed. The court evaluated petitioner’s

due process and equal protection claims by determining

whether “ ‘the statute manifests a patently arbitrary classi-

fication, utterly lacking in rational justification’ ” (id. at 6a,

quoting Flemming v. Nestor, 363 U.S. 603, 611 (1960)).

The court found that “the suspension of benefits to

3

incarcerated felons who are not participating in an

approved rehabilitation program is rationally related to the

Social Security Act’s policy of compensating for a loss of

earnings without providing a disincentive for rehabilita-

tion” (Pet. App. 6a-7a); the court also concluded that

“Congress had another permissible purpose in enacting the

statute which was to avoid discipline problems which cash

payments to inmates would create” (id. at 8a (citations

omitted)).

Next, the court of appeals dismissed petitioner’s ex post

facto and bill of attainder claims (Pet. App. 9a-11a). Again

relying on this Court’s decision in Flemming, 363 U.S. at

617, the court of appeals held that “the suspension of a

noncontractual benefit [such as petitioner’s disability bene-

fits] cannot be considered a punishment” (Pet. App. 10a).

Although suggesting that there was “some indication” that

Congress may have been motivated in part by punitive

aims, the court concluded that Congress also had rational

nonpunitive reasons for enacting this provision and that it

would not “ ‘ “reject all those alternatives * * * save that

one which might require invalidation of the statute” ” ” (id.

at lla, quoting Pace v. United States, 585 F. Supp. 399,

401 (S.D. Tex. 1984), and Flemming, 363 U.S. at 621)).

2. The opinion of the court of appeals is plainly correct

and does not warrant further review by this Court.

Petitioner does not appear to argue that the court of

appeals’ decision is inconsistent with the decisions of this

Court or any other court of appeals. It is not: it follows the

decisions of this Court in Flemming v. Nestor, supra, and

Schweiker v. Wilson, 450 U.S. 221 (1981), and is in accord

with the decisions of every lower court that has considered

similar challenges by prisoners to the same statute and its

predecessor. Jones v. Heckler, No. 84-1598 (10th Cir. Oct.

1, 1985); Buccheri-Bianca v. Heckler, 768 F.2d 1152 (10th

4

Cir. 1985); Washington v. Secretary of HHS, 718 F.2d 608

(3d Cir. 1983); Pace v. United States, 585 F. Supp. 399

(S.D. Tex. 1984); Hopper v. Schweiker, 596 F. Supp. 689

(M.D. Tenn. 1984).

As the court of appeals correctly recognized (Pet. App.

9a), the ex post facto and bill of attainder clauses”of the

Constitution were designed to prohibit certain legislatively

inflicted (as opposed to judicially determined) punish-

ments. To constitute an ex post facto law, a statute must

“ “impose{] a punishment for an act which was not punisha-

ble at the time it was committed; or [must] impose{] addi-

tional punishment to that then prescribed.’ ” Weaver v.

Graham, 450 U.S. 24, 28 (1981), quoting Cummings v.

Missouri, 71 U.S. (4 Wall.) 277, 325-326 (1867). Similarly, a

bill of attainder is a law “that legislatively determines guilt

and inflicts punishment * * * without provision of the pro-

tections of a judicial trial.” Nixon v. Administrator of

General Services, 433 U.S. 425, 468-469 (1977).

The critical question here on the ex post facto and bill of

attainder claims, then, is whether the legislation imposes

“punishment.” See Flemming v. Nestor, 363 U.S. at 613. In

Flemming, this Court rejected the contention that Section

202(n) of the Social Security Act (42 U.S.C. 402(n)), which

provides for termination of social security benefits to cer-

tain deported aliens, constituted an ex post facto law or bili

of attainder. The Court said: “Where the source of legisla-

tive concern can be thought to be the activity or status from

which the individual is barred, the disqualification is not

punishment even though it may bear harshly upon one

affected.” 363 U.S. at 614. In other words, if “ ‘the restric-

tion of the individual comes about as a relevant incident to a

regulation of a present situation,’ ” it is not punishment.

Ibid. (quoting De Veau v. Braisted, 363 U.S. 144, 160

5

(1960) (plurality opinion)). The statute at issue in Flem-

ming, this Court pointed out, did not impose an “affirma-

tive disability or restraint” but rather constituted “the mere

denial of a noncontractual governmental benefit.” 363 U.S.

at 617. In such a situation, “only the clearest proof [of

punitive intent] could suffice to establish the unconstitu-

tionality of a statute * * *.” Jbid.

The present case is directly analogous. As the court of

appeals recognized, Congress’s motives for enacting this

statute were in fact to deny payments to those who no

longer needed them and to ameliorate the disciplinary prob-

lems such payments to prisoners created—not to punish.

See S. Rep. 96-987, 96th Cong., 2d Sess. 8 (1980); Receipt of

Social Security Benefits by Persons Incarcerated in Penal

Institutions: Hearings Before Subcomm. on Social Secur-

ity of House Comm. on Ways and Means, 96th Cong., 2d

Sess. 25, 64, 68, 75 (1980); Washington v. Secretary of

HHS, 718 F.2d at 610-611; Pace v. United States, 585 F.

Supp. at 401.!

Petitioner’s due process and equal protection claims are

equally ill-founded.’ As set forth in Flemming, the applica-

ble test for measuring these claims is whether “the statute

'The court of appeals said it found “some indication” that Congress

in part intended the statute to be punitive (Pet. App. 10a). Assuming,

arguendo, such an indication, the limited legislative history in this

regard falls far short of the “unmistakable evidence of punitive intent

which * * * is required before a Congressional enactment of this kind

‘may be struck down.” Flemming, 363 U.S. at 619. In any event, where a

rational nonpunitive justification exists—and certainly where, as here,

it is explicitly embodied in the legislative history—this Court is not

required to “reject all those alternatives which imaginativeness can

bring to mind, save that one which might require the invalidation of the

statute.” Jd. at 621.

Petitioner cites manifold examples of what he contends to be

unequal treatment between himself and those in other allegedly relevant

classes of recipients of public (and private) benefits (Pet. 13-22). With-

out parsing the questionable relevance (and accuracy) of these

6

manifests a patently arbitrary classification, utterly lacking

in rational justification.” 363 U.S. at 611. As just discussed,

the legislative history of this statute amply demonstrates

congressional concern that a basic purpose of the social

security program—that is, to provide a continuing source of

income to those whose earnings are cut off as a result of

severe disability—was not being served by payments to

individuals being maintained at public expense in prison;

the legislative history also demonstrates Congress’s concern

that cash payments to prisoners were creating disciplinary

problems within prisons. Either of these concerns consti-

tutes a rational justification for the statute. See, e.g.,

Richardson v. Belcher, 404 U.S. 78, 82-84 (1971).

It is therefore respectfully submitt:4 “ha the petition for

a writ of certiorari should be denied.

CHARLES FRIED

Acting Solicitor General

OCTOBER 1985 ©

examples, we note simply that a classification “ ‘does not offend the

Constitution simply because [it] “is not made with mathematical nicety

or because in practice it results in some inequality” ’ ” (Idaho Depart-

ment of Employment v. Smith, 434 U.S. 100, 101 (1977), quoting

Dandridge v. Williams, 397 U.S. 471, 485 (1970), and Lindsley v.

Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)) and that “it is, of

course, constitutionally irrelevant * * * that the section does not extend

to all to whom the postulated rationale [of the statute] might in logic

apply.” Flemming, 363 U.S. at 612 (footnote omitted). See also

Schweiker v. Wilson, 450 U.S. 221 (1981).

DOJ-1985-10