Opposition Brief — Bowen v. Jordan

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No. 87-245 JOSEPH F. SPANIOL, JR,

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In The

Supreme Court of the United States

October Term, 1987

ray

Vv

OTIS R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES,

Petitioner,

JEANNE A. JORDAN,

on behalf of herself

and all others similarly situated,

Respondents.

fay

Vv

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

fy.

Vv

*Joun G. Fears

Legal Aid of Western Okla., Inc.

210 East Main

Suite 216

Norman, OK 73069

(405) 360-6631

NeEaL S. Dupovitz

Git DEFoRD

National Senior Citizens

Law Center

1052 W. 6th, Suite 700

Los Angeles, CA 90017

(213) 482-3550

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

1. Respondents accept the Secretary’s characteriza-

tion of Question 1.

2. Respondents reject the Secretary’s version of

Question 2. It should be restated in its entirety as follows:

Whether the Secretary properly appealed from the Jan.

18, 1985 district court ruling denying the Secretary’s

Rule 60(b) motion for relief from judgment.

il

PARTIES TO THE PROCEEDINGS

The named respondents are correctly named and de-

scribed in the Secretary’s Petition for Writ of Certiorari.

lil

TABLE OF CONTENTS

Page

OPINIONS BELOW 1

EE A SR ARETE Re EN 2

STATEMENT OF THE CASB . 2

THE COURT SHOULD DENY THE PETITION

ee UR Seca 8

CONCLUSION 13

iV

TABLE OF AUTHORITIES

Page

CasEs:

Aune v. Reynders, 344 F.2d 835 (10th Cir. 1965) ....7, 9, 10

Bradley v. School Board of City of Richmond, 416

A i a 12, 13

Browder v. Director, Department of Corrections

7 ee ee es Oe CE ee 11

Jordan v. Bowen, 808 F.2d 733 (10th Cir. 1987) .............. 7,8

Jordan v. Heckler, 744 F.2d 1397 (10th Cir. 1984) ....... 4,6

Jordan v. Schweiker, 79-994-W (W.D. Okl.: March

Re ARTE ale BORG AEs os ML eS I 3

Mathews v. Eldridge, 424 U.S. 319 (1976) 2 3

Miree v. DeKalb Co. Ga., 433 U.S. 25 (1977) oo 11

ConstTiITUTION, STATUTES AND Ruts:

U.S. Const. Amend. V (due process clause) 0000000000... 3

Title 28, United States Code

SERS RAN Pe”. aie aed Deen Cee ieee eee 2

IE eas yh ee arene oe ee 10. 11

Title 42, United States Code

| itireh aOeeSAPRTCh ed SW es a AO oa ety 3

§ 405(b) oh 3

SI SRR eae foe ete cence ce MP te Bias ih Ne iten 3

I a a rr Nd 3

I i I a .

I Sct oes a ewig 3

TABLE OF AUTHORITIES—Continued

Page

Social Security Disability Benefits Reform Act of

1984, Pub. L. No. 98-460, 98 Stat. 1794 oo passim

Federal Rules of Appellate Procedure,

Rule 4(a) 10, 11

Federal Rules of Civil Procedure,

OE ence ng ee oe eee passim

WN ND bitin ete cen 6,9

No. 87-245

In The

Supreme Court of the United States

October Term, 1987

ray

Vv

OTIS R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES,

Petitioner.

V.

JEANNE A. JORDAN,

on behalf of herself

and all others similarly situated,

Respondents.

ray

Vv

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ray

Vv

Respondents, a nationwide class of Social Security

and Supplemental Security Income beneficiaries, respect-

fully request that the Secretary’s petition for writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Tenth Circuit be denied.

—---Q-—- -—- — -

OPINIONS BELOW

The opinion of the court of appeals dismissing the

Secretary’s appeal in its entirety is reported at 808 F.2d

to

733. It is also included in the Secretary’s Consolidated

Appendix (hereinafter, See. App.), at pp. 56a-62a. That

court’s subsequent order denying the Secretary’s Petition

for Rehearing is unreported. (Sec. App., at 73a)

JURISDICTION

Respondents unequivocally reject the Secretary’s as-

sertion that issues raised in his petition are already before

this Court by operation of the second paragraph of 28

U.S.C. § 1252. Respondents have thoroughly discussed the

lack of jurisdiction under Section 1252 in the related direct

appeal (87-230). Those arguments are contained in re-

spondents’ Motion to Dismiss or Affirm, pp. 9-15, and are

incorporated here by reference. ~

°

STATEMENT OF THE CASE

As this Court is aware, the Secretary has previously

filed a related appeal in this case (87-230). Respondents

submitted a detailed statement in their Motion to Dismiss

or Affirm describing the complex history of proceedings

and rulings in the district court and court of appeals as

well as the resulting procedural posture of the Secretary’s

appeal. That statement is incorporated here by reference.

The Secretary’s Statement, as contained in his peti-

tion, does not sufficiently elaborate on relevant orders and

events. Respondents submit the following additional

Statement relevant to this Court’s inquiry into the instant

petition.

1. Plaintiffs initiated this action on September 7,

1979, in order to challenge the Social Security Administra-

tion’s failure to monitor or otherwise effectively supervise

individuals who act as representative payees for the re-

ceipt and disbursement of Social Security and Supplemen-

tal Security Income benefits. Plaintiffs’ claims were prem-

ised upon 42 U.S.C. §§ 405(a), (b), (jj), 13883(a) (2), (e)

(1), and (e) (1) (A), and the Due Process Clause of the

Fifth Amendment. Of particular significance here was

the contention that the government had violated their con-

stitutional rights by failing to implement a mandatory

accounting system to determine if representative payees

were carrying out their statutory duty to spend benefits

solely for the use of beneficiaries including elderly, dis-

abled, and child recipients.

By Order dated March 17, 1983, the district court re-

jected the Secretary’s contention that the Social Security

Administration (hereinafter SSA) had no obligation to

require accountings by all payees. Jordan v. Schweiker,

79-994-W (W.D. Okl, March 17, 1983). (Sec. App., at

23a-40a) In granting summary judgment, the district

court held that the Secretary was required by the Due

Process Clause of the Fifth Amendment to the U.S. Con-

stitution to institute a mandatory periodie accounting pro-

gram on behalf of a nationwide class of beneficiaries. (Jd.,

at 37a)

The decision was reached after a thorough evaluation

of plaintiffs’ Fifth Amendment due process claim under

the standards set forth in Mathews v. Eldridge, 424 U.S.

4

319 (1976). (See. App., at 37a) The district court found

that the interest of beneficiaries in the receipt and proper

use of benefits was substantial. Further, it was explicitly

held that the risk of beneficiaries being erroneously de-

prived of benefits under the Secretary’s discretionary

procedures was great and the probable value of mandatory

payee accountings substantial. (Jd.) The Secretary at no

time argued that any particular group of payees should

be exempted under the balancing test. The Secretary was

ordered to implement mandatory periodic accounting pro-

cedures nationwide within one year of the order. (Id.)

On May 10, 1983, the Secretary filed a notice of appeal

from that order exciusively on the accounting issue, but

later voluntarily moved to dismiss the appeal. The Tenth

Cireuit Court of Appeals granted the Secretary’s motion

and on July 14, 1983, dismissed the accounting appeal.

Jordan v. Heckler, 83-1600. (See Supp. App., attached to

Motion to Dismiss or Affirm, at la.) Once again, the Sec-

retary has omitted any reference to, or discussion of, this

significant order of dismissal.

Rejecting the government’s subsequent appeal of a

district court award of attorney fees, Judge Seth, writing

for a unanimous panel, specifically noted that the ‘‘Sec-

retary did not appeal the trial court’s order as to account-

ings and indicated that ‘‘... he agreed with it.’’ Jordan

v. Heckler, 744 F.2d 1397, 1401 (10th Cir. 1984). (See.

App., at 7la) Consequently, as of July 1983, the law of

this case was that the Social Security Administration was

required by due process of law to conduct ‘‘mandatory

periodic accountings’’ for all members of the nationwide

class of beneficiaries. (See appellees’ Motion to Dismiss

or Affirm, pp. 15-20)

qr

As the Secretary concedes in his Petition, he pur-

ported to implement the 1983 final judgment through a

random survey of only ten percent of payees annually

rather than mandatory periodic accounting by all payees.

On February 1, 1984, after “efendant refused several de-

mands by plaintiffs to es.ablish mandatory accounting

procedures for all payees, plaintiffs filed a Motion for

Order Enforcing Judgment.

By order dated March 26, 1984, following extensive

briefing and a lengthy evidentiary hearing, Judge West

explicitly reaffirmed plaintiffs’ contention that the due

process rights of beneficiaries, as established by the

March 1983 final judgment, could only be protected by

universal annual accountings. (Sec. App., pp. 41a-43a)

Judge West erdered the Secretary to take ‘‘immediate

steps’’ to implement such a system. (/d., at 43a) Fur-

ther, the court ordered SSA to maintain reasonable meth-

ods for verifying information submitted by representative

payees. Specifically, SSA Form 623 was approved as the

primary accounting form. Only essential information

verifying living arrangements and a general statement that

benefits were used for the beneficiary’s current needs are

requested via the form. (/d., at 42a, 48a) Only upon

certain events would a more detailed accounting be re-

quired,

Upon the Seecretary’s motion, the court later amended

its order to allow SSA to monitor state institutional payees

through its On-Site Review Program. (/d., at 44a-47a)

However, the amended order of July 2, 1984 was express-

ly conditioned on each institution being monitored at lcast

once every three years. (/d., at 46a, 47a)

The Secretary did not argue or present evidence sup-

porting the proposition now presented on appeal that cer-

tain categories of payees should be completely exeluded

from having their actions reviewed by SSA. More spe-

cifically, the Secretary presented no evidence whatsoever

to support a presumption that spousal or parental payees

with custody of beneficiaries should be treated any <if-

ferently from other payees. As noted in appellees’ Mo-

tion to Dismiss, the Secretary’s original proposal call-

ing for a 10% random sample, which was rejected by the

court in its March 26, 1984 order, included spousal and

parental payees in the sample. (Appellees’ Br., at 5)

On August 29, 1984, the Secretary filed a notice of

appeal from the March 26, 1984 Order as amended. Prior

to disposition of that appeal, however, the Secretary filed

his initial Motion for Indicative Ruling and Relief from

Judgment under Rule 60(b) (6), F. R. Civ. P., arguing that

congressional changes required modification of the court’s

prior judgment.

On January 18, 1985, the distriet court issued its de-

cision on the Seeretary’s Rule 60(b) Motion by rejecting

the Secretary’s demand for relief from judgment. Jordan

v. Heckler, No. 79-994W (W.D. Okl., Jan. 18, 1985). (See.

App., at 52a) The court noted that to grant the govern-

ment’s proposed payee exemptions from mandatory ac-

countings would mean that substantial numbers of class

members would be left without minimal constitutional

protections. (/d., at 54a)

7

Furthermore, the district court declared that it would

‘‘not indefinitely delay termination of the case to allow

the Seeretary to present evidence which could have been

presented at least ten months ago’’. Id. Citing Auwne v.

Reynders, 344 F.2d 835 (10th Cir. 1965) as controlling the

disposition of Rule 60(b) Motions, Judge West expressly

held that ‘‘. . . defendant is not entitled to relief from

judgment’’. (/d., at 48a). The court premised its holding

upon the following reasoning :

The only way by which the Secretary can avoid the

mandatory annual accounting is to establish that bene-

ficiaries’ due process rights are being adequately pro-

vided through some alternative means. ... However,

no such showing has been made for either of the two

categories [spousal/parental payees] set out above.

Beneficiaries in these two categories have the same

rights under the due process clause as do all other

beneficiaries for whom representative payees have

been appointed.

... The Seeretary has had several chances to

present the necessary evidence and has failed to do

so. The Court will not indefinitely delay the termina-

tion of this ease to allow the Secretary to present

evidence which could have been presented at least

ten months ago.

(Id., at 54a). Inexplicably, the Secretary chose not to file

a notice of appeal from the 1985 order either to this Court

or the court of appeals. Rather, he attempted to inject

Public Law 98-460, 98 Stat. 1794 (the Social Security Dis-

ability Benefits Reform Act of 1984 (hereinafter, the 1984

Amendments)) into his existing appeal of the March 26,

1984 district court order enforcing the judgment.

The Seeretary’s improvident strategy resulted in an

order of dismissal by the court of appeals. Jordan v.

Bowen, 808 F.2d 733 (10th Cir. 1987). (See. App., pp.

56a-62a) The panel held that the Secretary had effective-

ly abandoned issues and arguments pertaining to the 1984

order. (Id.,at 60a) Judge McWilliams, writing for a unan-

imous panel, held that litigants who fail to present argu-

ments in briefs on appeal will be ‘‘. . . deemed to have

waived their contention on appeal.’’ (Jd.)

In discussing the Seeretary’s appeal in its entirety,

the court additionally held that the 1984 Amendments were

not properly before that court due to the Secretary’s

failure to properly invoke the court’s appellate jurisdic-

tion by filing a notice of appeal. Thus, the court of ap-

peals refused to hear arguments relating to the district

court’s Rule 60(b) order. (Jd., at 62a)

As this Court is aware, the Secretary subsequently

renewed his Rule 60(b) Motion following the order of

dismissal. That ruling by the district court, dated April

10, 1987, which denied the Secretary’s most recent Motion

for Relief from judgment, is the subject of the Secretary’s

related appeal and Jurisdictional Statement (No. 87-230).

Respondents have already fully discussed issues relating to

review of that order separately in their Motion to Dismiss

or Affirm. That order, however, is not pertinent to the

Secretary’s instant Petition.

I. THE COURT SHOULD DENY THE

PETITION FOR CERTIORARI

1. The Secretary’s appeal was appropriately dis-

missed by the court of appeals. Indeed, the order of dis-

missal was in full accord with the basic requirements of

federal appellate jurisdiction.

The Secretary’s appeal was from the district court’s

1984 order enforcing judgment. It was during the pen-

dency of that appeal that the Secretary filed his Motion

for Indicative Ruling and Relief from Judgment pursuant

to Rule 60(b)(6). Subsequent thereto, the district court

expressly denied the Secretary relief from judgment which

he had specifically requested in his Rule 60(b)(6) motion.

In reviewing the Rule 60(b) motion, the court ac-

knowledged that a notice of appeal usually deprives a trial

court of jurisdiction. Judge West stated that a court

‘*. . . does, however, retain jurisdiction to consider how it

would rule on a Rule 60(b) motion.’’ (Sec. App., at 51a)

Citing Aune v. Reynders, supra, the district judge also

acknowledged that he could not grant such a motion ab-

sent an order remanding the case from the court of appeals.

However, he held that the Secretary was not entitled to

relief from judgment. (Jd., at 52a)

In the Awne decision the court of appeals defined the

parameters of a trial court’s jurisdiction in considering

Rule 60(b) motions:

In ordinary civil cases the rule is that after an

appeal has been taken the district court retains jur-

isdiction to consider and deny a Rule 60(b) motion,

and, if it indicates that it will grant the motion, the

movant may then ask the Court of Appeals to remand

the case so that the district court may act. If the mo-

tion 1s denied, the movant may appeal from the order

of denial.

344 F.2d at 841 (emphasis added). As noted above, the

district court premised its jurisdiction and denial of relief

on the Aune decision. The court of appeals observed that

10

the language of the Jan. 18, 1985 order may not be tech-

nically precise, but that the result ‘‘. . . was, and clearly

so, to deny the Secretary any relief from judgment’’.

(See. App., at 62a)

The Secretary would apparently have this Court ac-

cept the curious proposition that an express denial of

relief specifically requested in a Rule 60(b) Motion is

not an adverse ruling which is final and appealable. Re-

spondents submit that such an interpretation of the Jan-

uary 18, 1985 Order is strained, and ignores both the sub-

stance and effect of that decision. The trial judge ap-

proriately cited the Aune decision as controlling author-

ity for consideration of Rule 60(b) motions.

Rather than filing a protective notice of appeal with

this Court, or the court of appeals, based on his dissat-

isfaction with a clearly adverse ruling, the Secretary

simply assumed that it was not an appealable order. It

was a fundamental mistake which precluded consideration

of that order, and the issues decided therein, by the Court

of appeals.

The court of appeals concluded its order of dismissal

by stating as follows:

From our search of the record before us, no appeal

was taken by the Secretary from the district court’s

order of January 18, 1985. Therefore, the correctness

of that particular order is not before us by direct ap-

peal and cannot be somehow injected into the appeal

from the district court order of March 26, 1984.

(Sec. App., at 62a) The decision comports with standard

requirements for perfecting appeals under Rule 4(a),

Rule App. Proc., and 28 U.S.C. § 2107. Additionally, this

Court has explicitly held that the ‘‘.. . [60]-day time limit

11

is ‘mandatory and jurisdictional’ ’’ under Rule 4(a) and

§ 2107. Browder v. Director, Department of Corrections

of Ill., 434 U.S. 257, at 264 (1978).

The Secretary’s assertion that he was misled or con-

fused about the district court order is without merit. The

Secretary ignored universally recognized procedures for

perfecting an appeal from a final adverse ruling. If he

was not satisfied with the order or was confused he could

have protected his claims by timely perfecting an appeal.

His unwise decision to forego this step was fatal to any

subsequent attempt to raise issues addressed in the Rule

60(b) order through the appellate process.

2. The court of appeals finding that the Secretary

abandoned his arguments relating to the March 26, 1984

order enforcing judgment was based upon a careful an-

alysis of the briefs submitted for review. In the Secre-

tary’s brief he unambiguously declared that ‘‘. . . the only

issue on appeal now is whether Congress’s decision to

exempt certain payees from the accounting program satis-

fies the requirement of Due Process.’’ Def. Br. at 14. (em-

phasis added) No objections regarding the March 26, 1984

Grder were stated. The failure to present arguments in

the court of appeals concerning the 1984 order and random

sampling precludes review in this Court. Miree v. DeKalb

Co. Ga., 433 U.S. 25, 33 (1977).

Notwithstanding his prior statements of record, the

Secretary now argues that he did not abandon his appeal

on the merits. This Court is asked to conclude that exempt-

ing specific categories of payees (parental and spousal)

is identical to random sampling. Such reasoning is inher-

ently flawed. Moreover, the Secretary’s use of the catch-

phrase, ‘‘less-than-universal’’, in order to equate his ar-

12

guments is a semantic trap designed to divert attention

from his previous mistakes in strategy.

The Secretary, however, commits a more grievous

error in describing the 1984 order as requiring universal

accountings for the first time. That order specifically

clarified and enforced the 1983 summary judgment. The

1984 order was sought by plaintiffs to insure compliance

with the dictates of due process as established in the final

unappealed 1983 judgment. The question of mandatory

universal accountings for all beneficiaries was res judicata

and controlled by the doctrine of the ‘‘law of the case’’.

(See appellees’ Motion to Dismiss or Affirm, pp. 15-20)

Therefore, those issues were not involved in the appeal

of the 1984 order.

3. There is no basis in law or the record to support

the contention that the court of appeals was required to

review the 1984 Amendments automatically. First, the

question of the Act’s constitutionality was not before that

court for reasons discussed in the preceding paragraphs

herein and in those put forth in appellees’ Motion to Dis-

miss or Affirm. Second, the prior decisions of this Court

do not require consideration of the congressional amend-

ment.

Bradley v. School Board of City of Richmond, 416

U.S. 696 (1974), cited by the Secretary as authority (Sec.

Br., at 12), does not encompass circumstances that are

present in this Petition. In that case, the court of appeals

had jurisdiction to properly consider an intervening change

in statutory law. Id. at 710. A notice of appeal had been

timely filed from the district court. Therefore, jurisdic-

tion was not an issue as it is here.

13

Additionally, the issue in Bradley concerned the pro-

priety of a fee award while ‘‘. . . pending resolution

on appeai. when the statute became law.’’ Jd. The in-

stant appeal by the Secretary is distinguishable because

constitutionally mandated periodic accountings had_be-

come final by virtue of the 1983 district court judgment.

Conversely, the inquiry in Bradley involved attorney fees

still under ‘‘direct review.’ Id.

The Secretary has not stated sufficient reasons in

his petition to warrant review. As the preceding discus-

sion demonstrated, there are no issues of constitutional

dimension or of major public interest that are properly

before this Court. The procedural posture of this appeal

precludes review of the constitutional validity of the 1984

Amendments as demanded by the Secretary.

o>)

CONCLUSION

The Court should deny the Petition for Writ of Cer-

tiorari for the reasons stated.

Respectfully submitted,

Joun G. Fears

Neat Dupovirz

Gitt Drerorp

Attorneys for Respondents

October, 1987