# Opposition Brief — Bowen v. Jordan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0761%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 925 ## Text LE _ "Supreme Court, U.S. j/ EBLLBD ro, | >) || oct & Ber No. 87-245 JOSEPH F. SPANIOL, JR, Pama SRK = — a 03 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 ) 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0761%3A2. Public record. Not legal advice.