Opposition Brief — Davis v. Sullivan

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No. 89-1212 e) | JOSEPH F. SPANIOL, JR.

In the Supreme Court of the United States

OCTOBER TERM, 1989

AVON DAVIS, PETITIONER

Vv.

Louis W. SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ANTHONY J. STEINMEYER

SUSAN M. SLEATER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

———— ND

Sa aa a a Pa ST TBO BETS RTP RAPEIPED

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QUESTION PRESENTED

Whether the Secretary of Health and Human

Services should be held in contempt of court for

excluding interim Social Security benefits paid to

the claimant in calculating the fee of claimant’s

attorney, when the district court’s order pursuant to

which the Secretary acted also excluded those interim

benefits.

(1)

TABLE OF CONTENTS

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Statutory and regulatory provisions involved .......__....

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TABLE OF AUTHORITIES

Cases:

Chicot County Drainage Dist. v. Baxter State

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Condon V. Bowen, 853 F.2d 66 (2d Cir. 1988)...

Diamond Vv. Charles, 476 U.S. 54 (1986) —..0........

Fenix V. Finch, 436 F.2d 831 (8th Cir. 1971) ........

Gowen V. Bowen:

No. J-C-83-386 (E.D. Ark. June 12, 1987)......

855 F.2d 618 (8th Cir. 1988) ................000000000..

Hicks V. Feiock, 485 U.S. 624 (1988) ...... anes umes Shas

Maggio V. Zeitz, 333 U.S. 56 (1948) ..............00000....

McComb V. Jacksonville Paper Co., 336 U.S. 187

(1949) ............. eee ee ae SE et

Pittman v. Bowen, No. J-C-84-114 (E.D. Ark.

RE CREE eR area eae snc eater

Rodriguez V. Secretary of HHS, 856 F.2d 338 (1st

a eS ccesnihatscaennaaonaians

Russell v. Sullivan, cert. denied, No. 89-1130 (Mar.

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Shoemaker v. Bowen, 853 F.2d 858 (11th Cir.

ee Fic ecdbebaisaiaeneeseuibaatannasiadoaesomamnas

Trekas v. Sullivan, cert. denied, 110 S. Ct. 80

(1989) . SS eA AAAS a SORA OE RN Rs

United States Dep't of Labor Vv. Triplett, No. 88-

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Young V. United States ex rel. Vuitton et Fils S.A..,

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Iu the Supreme Court of the United States

Ste‘ utes and regulation: Page

OCTOBER TERM, 1989

Social Security Act, Tit. II, 42 U.S.C. 401 et seq.:

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§ 206(b) (1), 42 U.S.C. 406(b) (1) 00... 4,

5 (b) (1) U 06(b) (1) 2,4 ; No. 89-1212

By A IN I ciheietieeailcnsctncecenceinnenetsansiansene

§ 223 (g) (1) (C), 42 U.S.C. 423 (g) (1) (C) -.....

Social Security Disability Benefits Reform Act of

1984, Pub. L. No. 98-460, 98 Stat. 1794:

AVON DAVIS, PETITIONER

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2(e), 98 Stat. 1798-1799 3

on Fy 404.1708 " Louis W. SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 15-

25) is reported at 894 F.2d 271. The order of the

district court (Pet. App. 26) is unreported.

JURISDICTION

The decision of the cour appeals was entered

on October 25, 1989. petition for rehearing was

denied on December 12, 1989 (Pet. App. 27). The

(1}

petition for a writ of certiorari was filed on January

16, 1990. The jurisdiction of this Court is invoked

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

STATUTORY AND

REGULATORY PROVISIONS INVOLVED

Title 42, U.S.C., Section 406(b)(1) provides in

relevant part:

Whenever a court renders a judgment favor-

able to a claimant under this subchapter who

was represented before the court by an attorney,

the court may determine and allow as part of its

judgment a reasonable fee for such representa-

tion, not in excess of 25 percent of the total of

the past-due benefits to which the claimant is

entitled by reason of such judgment, and the

Secretary may * * * certify the amount of such

fee for payment to such attorney out of, and not

in addition to, the amount of such past-due bene-

fits. In case of any such judgment, no other fee

may be payable or certified for payment for such

representation except as provided in this para-

graph.

Title 20, C.F.R., Section 404.1703, defines past-due

benefits as:

[T]he total amount of benefits payable under

title II of the Act to all beneficiaries that has ac-

cumulated because of a favorable administrative

or judicial deterinination or decision, up to but

not including the month the determination or

decision is made.

STATEMENT

1. Petitioner brought this action seeking judicial

review of a decision of the Secretary of Health and

Human Services holding that his disability had

ceased and that he was no longer entitled to Social

Security disability benefits (Pet. App. 16). While

his case was pending in the district court, the Social

Security Disability Benefits Reform Act of 1984

(1984 Disability Amendments), Pub. L. No. 98-460,

§ 2, 98 Stat. 1794-1799 (codified as amended at 42

U.S.C. 423), was enacted. The district court granted

the Secretary’s motion to remand the case for further

administrative review under the new statute (Pet.

App. 16).

Upon remand, petitioner elected to receive interim

benefits.* Following additional development of the

record and completion of administrative proceedings

on remand, the Secretary held that petitioner’s dis-

ability benefits should be reinstated (Pet. App. 17).

The Secretary calculated that petitioner was entitled

to $6,205.20 in past-due benefits as a result of the

favorable decision. In accord with his practice at

that time, the Secretary did not include petitioner's

interim benefits in calculating his past-due benefits

for the purpose of computing attorney fees (ibid.).

Therefore, pursuant to 42 U.S.C. 406, the Secretary

withheld $1,551.30 (25° of $6,205.20) for a pos-

sihle fee award to petitioner’s attorney (Pet. App.

17). The remaining $4,653.90 was paid to petitioner.

' Section 2 of the 1984 Disability Amendments provided a

new standard for review of termination of disability benefits.

* Section 2(e) of the 1984 Disability Amendments provided

that certain previously terminated claimants could elect to

receive interim benefits beginning with the month of the

election and ending when an initial redetermination was made

by the Secretary. 42 U.S.C. 423(¢)(1)(C). This statutory

payment option was created to maintain the status quo, eas-

ing financial and emotional hardships that might otherwise be

incurred from the termination of benefits. Petitioner received

approximately $15,000 in interim benefits (Pet. App. 17).

2. Petitioner’s attorney, Anthony W. Bartels, peti-

tioned the district court for an attorney fee award

under 42 U.S.C. 406(b)(1). The district court’s

order awarding the fee concluded (Pet. App. 17-18):

it is Ordered and Decreed that an attorney’s fee

and costs in the amount of $2,171.25 from the

past-due benefits due the [petitioner], is hereby

allowed to Anthony W. Bartels, the [petition-

er’s] attorney, pursuant to 42 U.S.C. § 406(b)

(1). The [respondent] is hereby ordered to

compute, certify and pay said attorney this sum,

in addition to any fees found to be due for rep-

resentation at the administrative level, or

twenty-five percent of the | petitioner’s] past-due

benefits, whichever sum is less.

The order was silent as to whether interim bene-

fits were to be included in this calculation. Approxi-

mately two weeks prior to the entry of the order,

however, the same district judge had held in two

similar cases in which Bartels was also the claimant's

attorney that there was “no authority to award at-

torney’s fees from . . . interim benefits.” Pet. App.

22 (citing Gowen v. Bowen, No. J-C-83-386 (E.D.

Ark. June 12, 1987), slip op. 2, and Pittman v.

Bowen, No. J-C-84-114 (E.D. Ark. June 9, 1987),

slip op. 2). Accordingly, the Secretary in this case

adhered to his previous interpretatior. which ex-

cluded interim benefits from past-due benefits. The

Secretary paid Bartels $1,551.30, representing the

lesser of $2,171.25 or 25° of petitioner's past-due

benefits, excluding the interim payments (Pet. App.

18).

3. Bartels then petitioned the Secretary for atter-

ney fees for services performed in this case at the ad-

ministrative level. See 42 U.S.C. 406(a). The Sec-

retary, interpreting the court order as imposing a

cap of 25‘: of the past-due benefits on the total

amount of the fee award,’ advised Bartels that no

additional fee could be awarded because he had al-

ready been paid the full amount available under the

district court order for his work in the district court

(Pet. App. 31-32).

Bartels informed the Secretary of his view that

past-due benefits should include interim benefits, and

asked that his administrative fee application be held

pending the Eighth Circuit’s decision in Gowen vy.

Bowen and Pittman vy. Bowen, which raised this is-

sue (Pet. App. 33-35). The Secretary agreed to this

request (id. at 36-37).

4. The Eighth Circuit reversed the two district

court decisions in Gowen and Pittman, and held that

42 U.S.C. 406(b)(1) includes interim benefits as

part of the definition of past-due benefits for the pur-

pose of calculating attorney fees. Gowen ». Bowen,

855 F.2d 613 (1988); see also Shoemaker vy. Bowen,

853 F.2d 858 (11th Cir. 1988): Condon v. Bowen,

853 F.2d 66 (2d Cir. 1988): but see Rodriquez v.

Secretary of HHS, 856 F.2d 338 (1st Cir. 1988)

(interim benefits nof included in definition of past-

due benefits).

5. The Secretary thereupon reaffirmed his original

denial of Bartels’ request for an award of fees for

his administrative work in this case.’ There had been

* The court of appeals eventually agreed with this interpre-

tation of the district court’s order (Pet. App. 21).

* The district court never issued any order regarding fees

at the administrative level. The authority to award fees for

administrative level work is committed to the Secretary; his

determination in this regard is umreviewable. Pet. App. 19,

citing 42 U.S.C. 406(b) (1) ; Gowen Vv. Bowen, 855 F.2d 613,

no appeal challenging the Secretary’s interpretation

of the court’s fee award in this case, nor any aeemipt

to obtain a clarification of the court’s order making

that award. Nevertheless, more than sixteen months

after the entry of that order, Bartels moved to hold

the Secretary in contempt for failing to comply _—

the original fee order. Bartels alleged that the orie-

inal fee order required use of the rule subsequently

articulated in Gowen, and thus that the interim bene-

fits should have been included in calculating the sum

available to pay his fee. In his motion for contempt,

Bartels sought an order requiring that: Q) the re-

maining $619.95 of the claimed fee for district court

work be paid based on interim benefits; (2) the

amount remaining from 25 of past-due benefits be

used to pay his fee for work in the oe

proceeding; and (3) an attorney fee be awarded for

filing the contempt motion. Pet. App. 18-19. .

The district court denied Bartels’ motion without

comment (Pct. App. 26). The Eighth Circuit af-

firmed, ruling that “the Secretary fully complied

with the express terms and intent of the [district

court] order” (id. at 24). The court of appeals

found “it disturbing that Bartels now contends ‘the

Secretary ‘chose’ to disregard ‘the specific orders of

the district court’ because Bartels “was oF should

have been fully aware of the district court's intent;

the court further noted that “the contempt ——

here approaches the limit of responsible advocacy

(id. at 23 n.6).

618 (8th Cir. 1988) ; Fenix v. Finch, 436 F.2d 831, 838 (8th

Cir. 1971).

ARGUMENT

Bartels seeks further review of the denial of his

motion to hold the Secretary in contempt, although

the court below correctly found the Secretary had

fully complied with the district court’s order.

1. It is far from clear that there is a proper

petitioning party in this case. Bartels, an attorney,

identifies Avon Davis as the petitioner, but then as-

serts that he is himself petitioning for review ( Pet.

1) and refers to his relationship with his client Davis

in the past tense (Pet. 3). Moreover, because Bartels

seeks to compel the Secretary to withhold future ben-

efits due Davis for payment to Bartels, the petition

asserts interests that are antithetical to those of

Davis.” Cf. United States Dep’t of Labor vy. Triplett,

No. 88-1671 (Mar. 27, 1990), slip op. 5. Indeed, if

Davis were to be represented in this case in this

Court, he would clearly appear as a respondent, not a

petitioner. We are aware of no case that suggests

that an attorney is entitled to petition this Court to

reopen issues long resolved in the client’s favor. Cf.

Diamond y. Charles, 476 U.S. 54, 69-71 (1986). In

any event, the issues Bartels presents are so evidently

without merit that no further review is appropriate

in this case.

2. The Eighth Circuit’s decision in Gowen did not

change the meaning of the order the district court

had entered in this case fourteen months earlier.

Contempt proceedings “do[] not open to reconsidera-

tion the legal or factual basis of the order alleged to

have been disobeyed.” Maggio v. Zeitz, 333 U.S. 56,

° This is not the first time that Bartels has sought to raise

interests antithetical to those of the named petitioner, without

establishing any present right to represent that petitioner.

See Trekas v. Sullivan, cert. denied, 110 S. Ct. 80 (1989) ;

Russell v. Sullivan, cert. denied, No. 89-1130 (Mar. 19, 1990).

69 (1948). See Chicot County Drainage Dist. v.

Baxter State Bank, 308 U.S. 371, 374-375 (1940).

Moreover, the meaning of that order at the time it

was entered should have been as evident to Bartels

as it was to the Secretary. The court of appeals was

clearly correct in finding that Bartels “was or should

have been fully aware of the district court’s intent”

that interim benefits be excluded in calculating past-

due benefits (Pet. App. 23 n.6). As the court of ap-

peals explained, Bartels was the attorney who re-

ceived fees in Pittman v. Bowen, No. J-C-84-114

(E.D. Ark. June 9, 1987), and Gowen vy. Bowen, No.

J-C-83-386 (E.D. Ark. June 12, 1987), which were

decided by the same district court shortly before the

order in the instant case (Pet. App. 22-23). In both

Pittman and Gowen the district court ruled that it

had ‘“‘no authority to award attorney’s fees from...

interim benefits” (id. at 22 (quoting Pittman, slip

op. 2, and Gowen, slip op. 2)). The relevant portion

of the order in this case was identical to the orders

in Pittman and Gowen (Pet. App. 23). “It is clear,

then, that the district court’s order was intended to

follow the result in these two cases by not awarding

attorney’s fees out of interim benefits” (ibid.).°

3. Violation of a court order is a prerequisite for a

finding of civil contempt. Hicks vy. Feiock, 485 U.S.

624 (1988); Yeung v. United States ex rel. Vuitton

et Fils S.A., 481 U.S. 787, 795-796 (1987); McComb

v. Jacksonville Paper Co., 336 U.S. 187 (1949).

Since “the Secretary fully complied with the express

terms and intent of the order” (Pet. App. 24), Bar-

tels’ motion for ccntempt was so patently without

merit that the court of appeals correctly concluded

‘If Bartels wanted to contest the district court’s decision,

he should have appealed it, as he did the orders in Pittman

and Gowen.

that it “approaches the limit of responsible advocacy”’

(id at 23 n.6).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.