Petition for Writ of Certiorari — Hecht v. Barnhart

a ee TT

Court, U.8

FILE®

Bs S09 FP 2 «6 2003

OFFICE OF THE CLERK

IN THE

Anited States Supreme Court

pr-<<

DONALD HECHT, by his Co-Guardian,

DONALD HECHT, SS#: 054-60-6120 DI,

Petitioner,

against

JO ANNE B. BARNHART, Commissioner

of the Social Security Administration,

Respondent.

On Petition For A Writ of Certiorari

To The United States Court of Appeals

For the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Charles Robert

KASSOFF, ROBERT, LERNER

& ROBERT, LLP

100 Merrick Road — Suite 508W

Rockville Centre, New York 11570

516-766-7700

Counsel for Petitioner

~~

Si

i

QUESTION PRESENTED

Did the Second Circuit err by not applying the holding

in Christensen v. Harris County, 529 U.S. 576 (2000),

-whereby the Judiciary is to defer to a promulgated regu-

lation and not defer to an agency internal memo, in a

case in which the SSA Commissioner did not apply to

the Hecht facts, her own income regulation, 20 C.F.R.

§ 416.1130(b), that is applied by the SSA Commissioner

in the Seventh Circuit States?

Because the SSA Commissioner is not acquiescing to

the Seventh Circuit unappealed Jackson v. Schweiker,

683 F. 2d 1076 (7th Cir. 1982), decision which applied

the SSA Commissioner’s income regulation, 20 C.F.R.

§ 416.1130(b), have SSA Commissioner Barnhart and

Attorney General Ashcroft breached the “take Care”

clause of Article II, Section 3 of the Constitution, by

continuing to implement a SSA nonacquiescence policy,

based on the Immigration and Naturalization Service

United States v. Mendoza, 464 U.S. 154 (1984), decision?

“il

PARTIES TO THE PROCEEDING

Petitioner Daniel Hecht is a severely disabled 28 year

old who cannot walk, talk, or perform any activities of

daily living. He is represented in the action by his

Guardian-father Donald Hecht, Esq.

The respondent is the Social Security Administration

Commissioner who rendered the decision after the peti-

tioner had exhausted his administrative remedies.

iil

TABLE OF CONTENTS

Page

See PTE FREES EE cocca csc cscvccescecnss i

PARTIES TO THE PROCEEDING .........2....6. il

py FS eet , ) ee ener iil

TIE CF APP CIE sconces cv scscccevesscees vi

TABLE OF AUTHORITIES ........ccccesccccvcess Vil

CP ETRIGFIN POAAI oicic ccc venscscccccccceccenses 1

STATEMENT OF JURISDICTION ................ 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..........ccccecccsess 3

STATEMENT OF THE CASE ........cccccsseceess 3

REASONS FOR GRANTING THE WRIT ........ 7

POINT I

THE COURT BELOW ERRED BECAUSE

IT DID NOT CORRECTLY APPLY THE

CHEVRON DOCTRINE, AS INTERPRETED

BY THIS COURT IN CHRISTENSEN,

BECAUSE THE COURT DEFERRED TO

THE SSA AGENCY MANUAL AND NOT

TO THE SSA COMMISSIONER’S INCOME

8 se 6) Rrreer rer rrr err er Terre Teeter 10

1V

. The Christensen doctrine................06- 10

. The SSA Commissioner’s “Jackson”

SID Saiecaccceachvo tri sisasuneskenna ase 13

The July 25, 1985 sworn Congressional

testimony that the HHS nonacquiescence

policy was to have ended on June 3, 1985. 14

. The unheeded Beckless and Ragsdale

RE Oey sete teed e sSNA, oy AOR ole 16

The Ford nationwide class Notice

on ci cere di gna weeubeweweaee 18

POINT II

BECAUSE SSA COMMISSIONER BARN-

HART AND ATTORNEY GENERAL ASH-

CROFT IMPLEMENTED A JACKSON NON-

ACQUIESCENCE POLICY, THE SSA

COMMISSIONER AND THE ATTORNEY

GENERAL HAVE BREACHED THEIR

ARTICLE II SECTION 3 DUTY TO “TAKE

CARE THE LAWS BE FAITHFULLY

6.6 Kiba cns bs 065d5rdaeedemneaenesaes 20

A.

B.

The Article II, Section 3 Constitutional duty

and Marbury v. Madison................006+ 21

The Mendosa nonacquiescence policy

eT TEE EP TOT TC CT eT rT ee 23

The June 14, 1991 Associate Commissioner

Private Rental Subsidies Memo............ 24

Page

D. The tandem application of Bush v. Gore

equal protection standard with the

Christensen administrative law standard

reveals the fatal flaw in applying the

Mendosa nonacquiescence policy to

SSI program in which Congress intended

that there be an equal application of

the duly promulgated regulations in all

SO SUMtes, ..<accvvcosnccescnvsssenceevensces 28

CONCLUSION. . oc 0ccsccccccevcccsnccnevnaneneverss 30

vi

TABLE OF APPENDICIES

Page

A. June 27, 2003 Second Circuit Hecht

Br eee la

B. June 14, 1991 Rental Subsidies—

Decision Memorandum ....................:- 8a

Vil

TABLE OF AUTHORITIES

Page

Beckless I v. Heckler, 622 F. Supp. 715

(D.C. TH. 1985) .........cccccccccsccccccrccceees 17

Beckless II v. Chater, 909 F.Supp. 575

(N.D.IN. 1995). ......ccccccceccescccsscevcceces 17

Bush v. Gore, 121 S. Ct. 525 (2000)............... 28

Christensen v. Harris County, 529 U.S. 576

Oe C2) )) eee 7

Ford v. Shalala, 87 F. Supp 2d 163

(E.D.N.Y. 1999) ...csccscccscccccvccsecscccveses 9

Gordon v. Shalala, 55 F. 3d 101 (2d Cir. 195),

cert. den., 517 U.S. 1103..........cceccsecccceee 24

Gray Panthers v. Schweiker, 652 F. 2d 146

(D.C.Cir. 1980)..........ceccrescrecccccceeceees 19

Jackson v. Schweiker, 683 F. 2d 1076

(Tite Cir. 1962)... cciscccscsseessecscccecerssens 8-9

Jackson v. Heckler, 581 F. Supp. 871

(N.D. Ind. 1984)..........ccee cee cee eee ceeceeee: 13

Marbury v. Madison, 5 U.S. (1 Cranch) i37,

2 L.Ed GO (1803) .......ccccccccccccncecvceccess 21

Ragsdale v. Apfel, 999 F. Supp. 814

(E. D. Vir. 1998).........cecccecceecececceeceees 18

Ruppert v. Bowen, 871 F.2d 1172 (2d Cir. 1989)... 4

Vill

Stieberger I v. Heckler, 615 F. Supp. 1315

(S.D.N.Y. 1985) vac, 801 F. 2d 29

ee | Peer errr ee Tere hry Terre

Stieberger II v. Sullivan, 738 F. Supp. 716

Sf 2k a ere reer rrr ry tr rrr rrr rrr ry

Stieberger III v. Sullivan, 792 F. Supp. 1376

GBF Ae, |: RBM. eran ener rs

Stieberger IV v. Sullivan, 801 F. Supp. 1079

eS Ee) reer e ree rey Pre ee

Stieberger V v. Apfel, 134 F. 3d 37 (2d Cir. 1997),

rev 'g Stieberger v. Chater, No. 95 cv 5622)....

Stieberger VI v. Apfel, 1998 WL 556156

6 8 ae | pe er rep rr ope rEr Tea

United States v. Mendoza, 464 U.S. 154 (1984)...

Statutes and Other Authorities:

42 U.S.C. § 1381 .....cccccccececececececececeeeeees

$2 U0. CO. ccs eens

42 U.S.C. § 1396d(4)(A) ....ecccccecececcceceeeeees

20 C.F.R.§ 416.1485 Application of

Re Na ohn 5dr ns deedeceeeesesacanaas

20 C.F.R.§ 416.1130(b) SSI Income

ET ee rer TT TEP ETT re )

Page

24

25

iX

Subcommittee on Administrative Law and

Governmental Relations of the Committee

on the Judiciary: Judicial Review of Agency

Action: HHS Policy of Nonacquiescence ......

The Constitutional Case Against Intracircuit

Nonacquiescence, Coenan, 75 Minn. L. Rev.

1399 C1991) cc cccscicsrccesenececcesecevseeerens

Request for Public Comments: Agency

Nonacquiescence in Decisions of the Court

of Appeals, 53 FR 71 (April 14, i) eee

Nonacquiescence by Federal Administrative

Agencies, 98 Yale L.J. 679 (1989) .......-++++:

Intracircuit Nonacquiescence and the Breakdown

of the Rule of Law: A Response to Estreicher

and Revesz, 99 Yale L.J. 801 (1989)........-..

Social Security Administration Nonacquiescence:

The Need for Legislative Curbs on Agency

Discretion, 50 U. Pitt. L. Rev. 399 (1989).....

The Politics of Nonacquiescence: The Legacy

of Stieberger v. Sullivan, 46 West SRRS

B21 C1DDS).... noc ccccvevncavesesevenccsesesavensse

Page

14

23

y

23

23

23

24

OPINIONS BELOW

On August 26, 2002, Judge Arthur Spatt of the Eastern

District of New York rendered a Memorandum and Order

that affirmed the Social Security Administration (SSA)

Commissioner’s decision to reduce the monthly SSI

benefits by one third because the Guardian-Trustee of a

Court Ordered Supplemental Needs Trust, who was also

the parent-landlord, paid the rent of Daniel Hecht. Judge

Spatt rejected all of the plaintiff’s arguments and did not

apply the SSI regulatory standard, 20 C.F.R. 416.1130(b),

to the Hecht facts.

Rather than apply a regulatory standard, Judge Spatt

deferred to SSA Commissioner’s application of SSA

Program Operations Manual Systems standard, POMS

SI 01120.200(E)(1). The plaintiff appealed that decision

making the argument that Judge Spatt erred by not apply-

ing the SSI income regulation, 20 C.F.R. § 416.1130(b).

On June 27, 2003, the Second Circuit Court of Appeals

issued a Summary Order and affirmed Judge Spatt’s deci-

sion. As to the Christensen administrative law holding,

the Second held that:

Hecht is correct that such policy statements are not -

entitled to the same Chevron deference as imple-

menting regulations. See Christensen v. Harris

County, 529 U.S. 576. 587-88 (2000) (discussing

Chevron U.S.A.,Inc. v. Natural Resources Defense

Counsel, Inc., 467 U.S. 837 (1984)). Nevertheless,

policy statements are “entitled to respect” to the

extent that they have the “power to persuade.” Id.

at 587 (quoting Skidmore v. Swift & Co., 323 Us.

134, 140 (1944)); see also McMenemy v. City of

2

Rochester, 241 F.3d 279, 284 (2d Cir. 2001) (uphold-

ing statutory interpretation in agency manual that

was consistent with language and purpose of the law,

noting that “even when deference is not required, an

agency has a “body of experience and informed judg-

ment to which courts and litigants may properly

resort for guidance” (quoting Skidmore, 323 U.S. at

140)). The distinction POMS SI 01120.200 draws

between trust principal and disbursements is persua-

sive both because consistent with the treatment of in-

kind income in 20 C.F.R. § 416.1103 (g) as well as

with New York State trust law. See N.Y. Est. Powers

& Trusts Law § 7-1.12 (b)(3) (McKinney 2002)

(“actual distributions from the trust may be consid-

ered to be income or resources of the beneficiary to

the extent provided by the terms of any (government

benefits) program’’). Jd. slip opinion, p. 5.

The Court is advised that the petition for a Second Cir-

cuit rehearing is pending.

STATEMENT OF JURISDICTION

Jurisdiction is invoked under 28 U.S.C. § 1254(1).

Petitioner seeks a review of the Second Circuit Court of

Appeals Hecht v. Barnhart Summary Order because the

Second Circuit did not apply this Court’s Christensen v.

Harris County, 529 U.S.576 (2000), administrative law

holding, and because there is a conflict between the Sec-

ond Circuit Hecht Summary Order and the Seventh Cir-

cuit Jackson v. Schweiker, 683 F. 2d 1076 (7th Cir. 1982),

decision applying the SSA Commissioner’s income regu-

lation, 20 C.F.R. § 416.1130(b)..

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article II, Section 3 of the Constitution:

etal he shall take Care that the Laws be faithfully

executed...

2. The SSI statutory income standard 42 U.S.C

§ 1382a(a)(2)(A):

(2) unearned income means all other income, includ-

ing,

A) support and maintenance furnished in cash or

kind;

STATEMENT OF THE CASE

In 1972 President Nixon, created a new federal welfare

program, Supplemental Security Income (SSI), Title XVI

of the Social Security Act. On January 1, 1974, the enabling

SSI statute replaced the State administered Federal cate-

gorical AABD (aid to the aged, blind and disabled) pro-

grams. 42 U.S.C. § 1381 et seq. d

On December 14, 1974, Daniel Hecht was born. At the

age of three months, Daniel suffered a severe reaction to

a pertussis inoculation and became permanently disebled

such that he cannot walk, talk, or perform any activities

of daily living.

On May 2, 1988, plaintiff settled the action Hecht v.

Heitler, Haber, et al. Index No. 3313/84 (Nassau Co. Sup.

Ct.), for approximately $500,000 and an annuity paying

$ 1000 per month for David’s life. On November 9, 1992,

4

Donald S. Hecht and Laura Hecht were appointed the Co-

Conservators of Daniel Hecht, their son.

On August 11, 1993, President Clinton signed into law

OBRA 1993 which established the statutory right of a

disabled person to establish a Trust in order that the dis-

abled person would not lose the right to receive govern-

ment entitlements on the condition that upon death, the

resources remaining in the Trust would be subject to a

Medicaid lien. 42 U.S.C. § 1396d(4)(A). In 1994, New

York State enacted compliance legislation and denomi-

nated these Trusts as Supplemental Needs Trusts (SNT).

See E.P.T.L. 7-1.12.

On December 19, 1995, the plaintiff’s parents, peti-

tioned the Nassau Supreme Court to covert the Conserva-

torship to a Guardianship and transfer the assets of the

plaintiff into an SNT. On March 26, 1996, State Court

Justice Rossetti signed the Order and Judgment appoint-

ing the Co-Guardians and ordered that the resources be

transferred into the proposed SNT.

The Order included payment by the Trustee from the

SNT of $2000 month caretaking stipend for the Co-

Guardian-mother Laura Hecht and $ 750 for room and

board. The Order contained an explicit income standard

that the Trustee was to apply the legal standard as applied

in the Second Circuit’s Ruppert decision. “The Trustee

will provide income in-kind from the Trust pursuant to its

specific distribution provisions in order to provide for the

special needs of the beneficiary by furnishing those items

of need not provided by government entitlements consis-

tent with the definition of income as intended by the Con-

gress and decided in Ruppert v. Bowen, 871 F.2d 1172 (2d

Cir. 1989),

5

On May 14, 1998, the defendant granted the June 14,

1996 Hecht application for Supplemental Security of

Income (SSI) benefits. However, the defendant reduced

the plaintiff’s monthly SSI payment amount because of

the alleged receipt of in-kind income:

The food, clothing, or shelter he got from someone.

We value the food, clothing or shelter at $ 176.66 for

June 1996 through December 1996, $ 181.33 for

January 1997 through December 1997 and $ 184.66

for January 1998 through May, 1998. Emphasis

Added.

On September 15, 1999, ALJ Emanuel Poverstein.

reversed the initial decision and explicitly made a finding

of fact that all disbursements were authorized by the

Court and did not constitute in kind support and mainte-

nance:

4. As disbursements from the trust are directed and

authorized by an appropriate court in accordance

with the terms of the trust, the disbursements do not

constitute in kind support and maintenance and

therefore cannot be deemed income of the claimant.

Emphasis Added.

On October 7, 1999, Regional Commissioner Disman

requested that the SSA Deputy Director of Office of

Appellate Operations reopen the decision based on the

application of POMS SI 01120.200E.1.b:

A review of the file indicates that the claimant has an

excluded “supplemental needs trust that pays $

750.00 of his mortgage, rent, heating fuel, water,

gas, property taxes, electricity, garbage removal and

6

sewer bills.” Because this was used toward his shel-

ter costs, the maximum amount of in-kind support

and maintenance was charged.

There is nothing in the Regulations that would allow

for the exclusion of this type of income. However,

POMS SI 01120.200E.1.b. states “Food, clothing or

shelter received as a result of disbursements from the

trust by the trustee to a third party are income in the

form of in-kind support and maintenance and are

valued under the presumed maximum value (PMV)

rule. Emphasis Added.

On May 12, 2000, Administrative Appeals Judge (AAJ)

Peter N. Dowd affirmed the decision of SSA Regional

Disman that ALJ Poverstein had applied an incorrect

legal standard and reversed ALJ Poverstein’s September

15, 1999 decision. AAJ Dowd discussed the SSI income

regulation, 20 C.F.R. 416.1130, but did-not apply the

Seventh Circuit “Jackson” regulation, 20 C.F.R.

416.1130(b).

Because the principal of a supplemental needs trust

is not charged as a resource to the beneficiary of the

trust, the distributions from the trust paid to a

provider of support and maintenance result in in-

kind income to the beneficiary of the trust (20 CFR

416.1130), rather than cash income. In-kind income

is valued under the “presumed value rule” (20 CFR

416.1140); i.e., the value of the support is presumed

to be one-third of the Federal benefit rate plus $20,

unless there is a showing that actual value is less.

Emphasis added.

7

Pursuant to 42 U.S.C. § 405(g), the petitioner filed a

complaint to appeal this decision. The plaintiff alleged

that the SSA commissioner was implementing a nonac-

quiescence policy by not applying the “Jackson” regula-

tory standard, 20 C.F.R. § 416.1130(b), to the Hecht facts

because the plaintiff’s rent of $750 per month was more

than one third of his SSI income payment.

REASONS FOR GRANTING THE WRIT

Petitioner Danie! Hecht respectfully requests that this

Honorable Court issue a Writ of Certiorari and review the

Second Circuit Court of Appeals Hecht Summary Order

which held that the Social Security Administration cor-

rectly reduced Daniel’s monthly Supplemental Security

Income (SSI) benefits because his rent of $750 per month

was paid by the Trustee of his Supplemental Needs Trust,

notwithstanding an SSA income regulation, 20 C.F.R.

416.1130(b), which if applied would not have counted the

private rent subsidy as countable income to reduce the

monthly SSI payment amount. °

The Second Circuit’s decision to apply the POMS,

its internal memo standard, rather than the SSI income

regulatory standard, is not consistent with this Court’s

Christensen v. Harris County, 529 U.S. 576 (2000), admin-

istrative law holding. In Christensen, this Court elimi-

nated any ambiguity in the application of the Chevron

Doctrine as to the Judiciary’s deference to letter-opinions

of Executive Branch counsel as applied in a Fair Labor

Standards Act of 1938 (FSLA) case:

Here, however, we confront an interpretation con-

tained in an opinion letter, not one arrived at after,

8

for example, a formal adjudication or notice-and-

comment rulemaking. Interpretations such as those

in opinion letters-like interpretations contained in

policy statements, agency manuals, and enforcement

guidelines, all of which lack the force of law—do

not warrant Chevron-style deference. /d. at 1662.

Emphasis added.

In Hecht, the SSA Commissioner’s POMS SI

01120.200(E)(1), was an interpretation of the SSI income

regulation, 20 C.F.R. 416.1130(b). By applying the

POMS standard to the Hecht facts, rather than the under-

lying income regulation, the Court jumped to a “power to

persuade” analysis, rather than first applying the income

regulation, 20 C.F.R. 416.1130(b), to the facts.

If the petition was granted, then this Court would first

decide whether the Christensen administrative law hold-

ing applies to the Social Security Administration with

its complicated and elaborate POMS. See SSA.gov. The

Court would then have an opportunity to clarify the

sequence of applying the Christensen holding as to

whether the reviewing court is to first apply the promul-

gated regulation upon which the POMS is based, and only

apply the POMS “power to persuade” standard if there is

ambiguity in the promulgated regulation.

This case also raises the lurking issue of the SSA Com-

missioner’s implementation of an SSA nonacquiescence

policy whereby the SSA Commissioner’s counsel decide

which circuit court decisions are “incorrectly” decided,

should not be appealed, and should not be applied in any

other Circuit. In Hecht, the SSA Commissioner did not

apply the unappealed Seventh Circuit Jackson vy.

9

Schweiker, 683 F. 2d 1076 (7th Cir. 1982), decision

which interpreted the application of the SSI income

regulation, 20 C.F.R. 416.1130(b).

If the Hecht petition was granted, then this Court could

revisit United States v. Mendosa, 464 U.S. 154 (1984),

which affirmed the right of the Immigration and Natural-

ization Service to make nonacquiescence litigation deci-

sions. This is a timely issue because SSA Commissioner

Barnhart is presently confronted with an equal protection

conundrum as she constructs the Notices that will cure

the due process violations in the unappealed nation-

wide class décision, Ford v. Shalala, 87 F. Supp 2d 163

(E.D.N.Y. 1999). Petitioner Hecht is one of the Ford class

members who resides in the Second Circuit in which the

Seventh Circuit Jackson holding and the resulting “Jack-

son” income regulation, 20 C.F.R. 416.1130(b), has not

been applied to the Hecht facts.

In summary, the Court should grant the petition in

order to have an opportunity to review the SSA Commis-

sioner’s decision not to apply the Christensen holding

administrative law holding when rendering an SSA adju-

dication. The petition should also be granted in order that

the Court can decide whether this Court’s 1984 Mendosa

decision should apply to the SSA now that the SSA Com-

missioner has duty to cite to duly promulgated regula-

tions in Notices to be sent to the nationwide Ford class

members, one of whom is petitioner Hecht.

10

POINT I

THE COURT BELOW ERRED BECAUSE IT

DID NOT CORRECTLY APPLY THE CHEVRON

DOCTRINE, AS INTERPRETED BY THIS COURT

IN CHRISTENSEN, BECAUSE THE COURT

DEFERRED TO THE SSA AGENCY MANUAL AND

NOT TO THE SSA COMMISSIONER’S INCOME

REGULATION.

The petitioner argues that the Second Circuit erred

when rendering the summary order to affirm Judge

Spatt’s decision affirming the SSA Commissioner’s deci-

sion. The petitioner argues that the Second Circuit should

have applied this Court’s May 1, 2000 Christensen hold-

ing to the facts because the Second Circuit deferred to the

SSA Commissioner’s POMS, the agency manual stan-

dard,, as to the standard to apply, rather than apply the

SSA Commissioner’s promulgated income regulation, 20

C.F.R. § 416.1130(b).

A. The Christensen standard

In Christensen, this Court eliminated any ambiguity as

to the application of the Chevron Doctrine and judicial

deference to an agency memo when there is a duly prom-

ulgated regulation to apply. Justice Thomas rejected the

Department of Labor’s and Solicitor General Waxman’s

“letter-opinion” argument in Christensen:

Seeking to overcome the regulation’s obvious mean-

ing, the United States asserts that the agency’s opin-

ion letter interpreting the regulation should be given

deference under our decision in Auer v. Robbins, 519

U.S. 452, 117 S. Ct. 905, 137 L.Ed. 2d 79 (1997). In

Auer, we held that an agency’s interpretation of its

1]

own regulation is entitled to deference. /d. at 461,

117 S. Ct. 905. See also Bowles v. Seminole Rock &

Sand Co., 3235 U.S. 410, 65 S. Ct. 1215, 89 L.Ed.

1700 (1945). But Auer deference is warranted only

when the language of the regulation is ambiguous.—

it is plainly permissive. Jo defer to the agencys

position would be to permit the agency, under the

guise of interpreting a regulation, to create de facto

a new regulation. Because the regulation is not

ambiguous on the issue of the compelled compensa-

tory time, Auer deference is unwarranted. /d. at

1612. Emphasis added.

The petitioner argues that the SSA Commissioner’s

regulation is not ambiguous as to meaning, but only as to

its limitation to the Seventh Circuit States. That limita-

tion issue is not a Christensen issue, but a Mendosa issue

of the SSA Commissioner implementing a Jackson

nonacquiescence policy notwithstanding the July 25,

1985 that the nonacquiescence policy had ended on June

3, 1985. See POINT II.

The Second Circuit in Ruppert had reconciled its hold-

ing with Jackson by citing to Solicitor General Lee’s

October, 1983 Glasgold-Rothman-Guigno Brief:

Appellants point out that the Solicitor General’s

brief successfully opposing the grant of certiorari in

Rothman said, irrespective of the positions taken by

the Secretary before this court and the Jackson court

at various stages in each case:

Petitioners rely heavily on Jackson v. Schweiker, 683

F.2d 1076 (7th Cir. 1982), which they claim conflicts |

12

with the decision below and several other court of

appeals decisions. However, no such conflict exists.

In Jackson, the class representative had her benefits

terminated by application of the presumed maximum

value regulation when it was determined that she

received a rental subsidy from her sister although

she nonetheless was paying 77% of her income for

rent. The court of appeals expressly “accept[ed] the

general validity of the regulation as applied in many

situations” (id. at 1079 n. 2), but held that, on the

particular facts of Jackson, it was inappropriate to

include the rental subsidy as countable income

because “where a very large percentage of income

*** is committed to shelter costs before termination

of SSI, it flies in the face of reality to conclude that

‘unearned income’ in the form of subsidized shelter

*** is actually available to the recipient.” Jd. at 1085

(emphasis in original). The court of appeals below

correctly stated that the rule announced in Jackson

was inapplicable here and instead relied on the deci-

sions in other circuits upholding the regulations. .. .

Indeed, the Jackson court itself recognized the limit-

ed nature of its holding, and it explicitly stated that

its decision did not conflict with the court of appeals

decisions upholding *1180 the regulations, at 6-7,

Guigno v. Heckler, 464 U.S. 984, 104 S.Ct. 428, 78

L.Ed.2d 362 (1983) (denial of certiorari in Rothman)

(emphasis added).

However, notwithstanding its unappealed Ruppert

decision, the Second Circuit did not apply the “Jackson”

regulation. Rather, the Second Circuit applied the POMS

standard that interpreted the income regulation as applied

13

to a payment of rent by the Trustee of a State Court

ordered Supplemental Needs Trust.

B. The SSA Commissioner’s “Jackson” regulation

The Jackson regulation, 20 C.F.R. § 416.1130(b), does

not make the Trust fund v. non-Trust fund source of pay-

ment distinction as made in Hecht. The history of the

Jackson regulation reveals the importance of compliance

with the APA in order for the public to be advised of the

standards applied in a national program which Congress

intended would have uniform standards equally applied

in all 50 States.

On January 6, 1984, sixteen years prior to the Chris-

tensen decision, Chief Judge Sharpe in Jackson v. Heck-

ler, 581 F. Supp. 871 (N.D. Ind. 1984), ordered Secretary

Heckler to promulgate an SSI in-kind income regulation

in order to comply with the Seventh Circuit’s unappealed

1982 Jackson remand order:

As an initial matter, the court will consider the par-

ties’ dispute over whether the Secretary must amend

the relevant regulation or simply modify internal

operation procedures and manuals. The plaintiff

argues that the relief mandated by the court of

appeals will be effectively implemented only if

SSI claimants and their representatives or advocates

have access to the modifications throughout the

regulations founc in the Federal Register and the

Code of Federal Regulations. Otherwise, persons

using the normal research tools will find nothing but

the regulation which found inadequate by the court

of appeals and will have no indication that it has

been modified. While instructions and guidelines in

14

internal operating manual and policy statements may

be effective means of informing social security

administration personnel it is not an effective means

of informing claimants and their representatives.

There is simply no basis for assuming internal oper-

ational manual are generally available. Further-

more, the Secretary has not advanced any

compelling reason why the regulation should not be

amended. Therefore, this court will require an

amendment to the challenged regulation. Emphasis

Added.

On October 10, 1985, Judge Sharpe issued a Jackson

order requiring publication of the amendment to the SSI

in-kind income regulation to comply with the Seventh

Circuit’s order in Jackson v. Schweiker, 683 F. 2d 1076

(7th Cir. 1982). On March 27, 1986, based on the unap-

pealed Jackson vy. Schweiker Seventh Circuit decision,

Secretary Bowen certified a proposed amendment to the

SSI regulation, 20 C.F.R. § 416.1130. However, without

explanation, Secretary Bowen limited the regulation’s

application to only SSI recipients who resided in the Sev-

enth Circuit States of Indiana, Illinois, and Wisconsin.

See 51 FR 13487 (April 21, 1986).

C. The July 25, 1985 sworn Congressional testimony

that the HHS nonacquiescence policy was to have

ended on June 3, 1985

On July 25, 1985, an Oversight Hearing before the

Subcommittee on Administrative Law and Governmental

Relations of the Committee on the Judiciary: Judicial

Review of Agency Action: HHS Policy of Nonacquies-

cence, was held to consider legislation to end HHS Sec-

15

retary Heckler’s nonacquiescence policy. However,

Members of Congress were advised in sworn Congres-

sional testimony that no legislation was needed because

HHS and SSA had voluntarily ended their nonacquies-

cence policy as of June 3, 1985.

- Acting SSA Commissioner Martha McSteen explained

to Members of Congress the new post-June 3, 1985

“acquiescence” policy, at Tr. 7:

Mr. Chairman, I know the questions have been raised

about this new policy, but I believe we have done our

best to reconcile the need for national uniformity

and efficiency with the wide variety of interpreta-

tions of the law by circuit courts.

and at Tr. 19:

We will obey the court directives. We want to follow

the congressional mandate. We are very concerned

about the individual beneficiaries, and fourth, we

must ensure that we have a uniform method of oper-

ating and apply those standards uniformly. So we

debated the issue of how to implement our policy

with great care and with consideration as to how that

should take place and where it should take place.

Emphasis added.

On July 25, 1985, Deputy Assistant Attorney General

(DAAG) Carolyn Kuhl testified and explained the new

policy, at Tr. 10:

Under its new policy, the Social Security Administra-

tion acknowledges that, to some extent at least,

nationwide uniformity is no longer possible. The Sec-

retary of Health and Human Services will follow cir-

ii i

16

cuit precedent in making final benefit determinations,

except in those few cases presenting an issue which

HHS, in consultation with the Solicitor General,

determines should be relitigated in order to urge

reconsideration of a rule of law in a circuit or to seek

potential Supreme Court review. Thus, as it applies to

the courts, this policy means that we will follow cir-

cuit precedent when the Department of Justice enters

the proceedings—that is in the district court- except

where the Justice Department and HHS agree that the

issue should be litigated further. . . . Emphasis added.

After the House Judiciary Subcommittee hearing,

Members requested that the Commissioner provide a list

of then pending “non-acquiescence” cases. SSA Chief

Counsel Gonya provided the list of nonacquiescence

cases and that list did not include Jackson. See July 25,

1985 House Record, at p. 31-33.

If the sworn July 25, 1985 Congressional testimony

was accurate sworn Congressional testimony, then the

nonacquiescence policy was to have ended on June 3,

1985. If the Hecht petition was granted, then this Court

could consider whether the Second Circuit erred when it

deferred to SSA Commissioner Barnhart’s implementa-

tion of the Jackson nonacquiescence policy given the -

sworn July 25, 1985 Congressional testimony of Acting

SSA Commissioner Mc Steen and then-DAAG Carolyn

Kuhl.

D. The unheeded Beckless and Ragsdale admonitions

SSA Commissioner Barnhart’s continued implementa-

tion of his Jackson nonacquiescence policy has been crit-

icized by the Courts within the Seventh Circuit and in

17

non-Seventh Circuit States. If the petition is granted, then

Solicitor General Olson can explain to this Court why the

Jackson regulation was limited to the Seventh Circuit

States given the July 25, 1986 sworn Congressional testi-

mony that the nonacquiescence policy had ended on June

3, 1985 and that Jackson was not a nonacquiescence case.

On December 3, 1985, Judge Bua in the unappealed

Beckless I v. Heckler, 622 F. Supp. 715 (D.C. Ill. 1985),

certified an Illinois class of SSI recipients and applied,

the Jackson to Illinois SSI recipients:

However, it is not clear from the Jackson decision

whether the Secretary is refusing completely to com-

ply with the Seventh Circuit’s decision. The Secre-

tary has not issued a policy of non-acquiescence as

was done in Lopez, and without further evidence, it

is unclear whether the Secretary has failed to

perform her duties as a public official. Id. at 719.

Emphasis Added.

In the unappealed Beckless IJ v. Chater, 909 F.Supp.

575 (N.D.Ill. 1995), Judge Bucklo explained how the

SSA Commissioner’s interpretation of Jackson had evis-

cerated the Seventh Circuit holding:

The defendant essentially argues that the “Excep-

tion” applicable to the Seventh Circuit should be

read out of section 416.1130(b). Opposition def. br.

10. By its words, the exception does not confine a

business arrangement to payment of full rent charged

by a landlord. Rather, a business arrangement exists

“when the amount of monthly rent required to be

paid equals or exceeds the presumed maximum

value... .” Id. at n. 4, p. 580. Emphasis Added.

18

In the unappealed Ragsdale v. Apfel, 999 F. Supp. 814

(E. D. Vir. 1998), Judge Payne echoed Judge Bua’s !985

admonishment of Secretary Heckler in Beckless I and

Judge Bucklo’s 1995 admonishment of Secretary Shalala

in Beckless IJ, and admonished SSA Commissioner Apfel

for not to applying the Jackson standard to Virginia SSI

recipients:

This litigation need never have occurred. And, that it

did, reflects poorly on the Agency which elected not to

seek review of the decisions issued by the Second or

Seventh Circuits and then put the Ragsdales to the

needless task of establishing the obvious: that the

decisions of the Second and Seventh Circuit were cor-

rect. Citizens residing in the Fourth Circuit should not

be required needlessly to incur costs and fees in order

to achieve the rights already enjoyed by those indi-

viduals residing in the Second and Seventh Circuit. It

may be that the Agency’s conduct is not sanctionable

in this case, but it must be hoped that the Agency will

not, in the future, pursue the course which it has fol-

lowed here. Id. at 824. Emphasis Added.

Neither Judge Spatt nor the Second Circuit addressed

the issue of the SSA Commissioner not heeding the Beck-

less II and Ragsdale admonitions. Rather, both Courts

deferred to the decisions of the Social Security Commis-

sioner and her Executive Branch counsel to ignore the

holdings of these unappealed district court decisions.

E. The Ford nationwide class Notice conundrum

The SSA Commissiorer’s decision not to heed the

admonitions of the Beckless J! and Ragsdale Courts will

now affect the SSA Commissioner’s ability to comply

19

with Judge Sifton’s Ford nationwide class due process

decision. The SSA Commissioner is now in the process of

constructing “Ford” Notices that will cure the due

process violation caused by the termination and reduction

Notices not containing citations to the applicable regula-

tions. The SSA Commissioner must now decide whether

to include a citation to the “Jackson” income regulation

in the Ford Notices sent to SSI recipients who are receiv-

ing private rent subsidies in the 47 States that are not

within the Seventh Circuit.

On September 29, 1999, in Ford v. Apfel Judge Sifton

addressed the issue of the SSI Notices that did not

explain the standards that were applied by SSA Commis-

sioner Apfel in denying benefits. Citing Gray Panthers v.

Schweiker, 652 F. 2d 146, 168-169 (D.C.Cir. 1980),

Judge Sifton highlighted the Kafkaesque situation of

nationwide class of SSI recipients for whom the stan-

dards used to compute benefits are not explained to the

SSI applicants and recipients:

Unless a person is adequately informed of the rea-

sons for denial of a legal interesi, a hearing serves no

purpose—and resembles more a scene from Kafka

than a constitutional process. Without notice of the

specific reasons... . a Claimant is reduced to guess-

ing what evidence can or should be submitted in

response and driven to responding to every possible

argument—at the risk of missing the critical one

altogether. Ford, p. 181. Emphasis Added.

In Hecht, the SSI Notices did not cite to the applicable

regulations. Indeed, the Notices did not even cite to the

POMS that was relied upon in reducing the monthly

benefits.

20

In summary, if SSA Commissioner Apfel acquiesces

to Christensen and acknowledges that the Judiciary is to

defer to duly promulgated regulation, but not defer to the

agency manual interpretations, then the “Jackson” regu-

lation should be cited in the “Ford Notices and applied

equally in all 50 States. In rendering its decision, the Sec-

ond Circuit did not apply the “Jackson” regulation to the

Hecht facts, but rather, relied upon an agency manual

which interprets the SSA Commissioner’s promulgated

regulation.

POINT II

BECAUSE SSA COMMISSIONER BARNHART

AND ATTORNEY GENERAL ASHCROFT ARE

IMPLEMENTING A JACKSON NONACQUIESCENCE

POLICY, THE SSA COMMISSIONER AND THE

ATTORNEY GENERAL HAVE BREACHED THEIR

ARTICLE II SECTION 3 DUTY TO “TAKE CARE

THE LAWS BE FAITHFULLY EXECUTED.”

The SSA Commissioner’s Jackson v. Schweiker, 683 F.

2d 1076 (7th Cir. 1982) nonacquiescence policy, ratified

by Attorney General Ashcroft, is presented in Hecht

because the “Jackson” regulation, 20 C.F.R. § 416.1130

(b), was not applied to the Hecht facts. This raises the

Constitutional issue of whether the SSA Commissioner

Barnhart and AG Ashcroft have breached their Article II,

Section 3 duty to “take Care the laws be faithfully exe-

cuted,” by continuing to implement the SSA nonacquies-

cence policy contrary to the sworn July 25, 1985

Congressional testimony that the nonacquiescence policy

was to have ended on June 3, 1985. This then raises the

issue of whether the SSA nonacquiescence policy, based

21

on United States v. Mendoza, 464 U.S. 154 (1984), should

have ended on June 3, 1985.

A. The Article II, Section 3 Constitutional duty and

Marbury v. Madison

Based on their appointment by the President, SSA

Commissioner Barnhart and Attorney General Ashcroft

~ have an Executive Branch official’s Constitutional duty

to fulfill the Article II, Section 3 duty that they “shall

take Care that the Laws be faithfully executed.” This

“take Care” clause is not being implemented when the

Laws are not being executed equally to all aged, blind,

and disabled citizens residing in all 50 States. -

Pursuant to Article III of the constitution, the Supreme

Court has the Constitutional authority to review Execu-

tive Branch decisions to determine if Executive Branch

officials are breaching any of the Executive Branch’s

Constitutional duties. Attorney General Ashcroft’s legal

advice that SSA Commissioner Barnhart does not have to

acquiesce to unappealed Jackson decision, now presents

this Court with a Separation of Powers issue.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed

60 (1803), the Supreme Court fulfilled its Article III Con-

stitutional duty to judicially review the decision of an

Executive Branch not to enforce a law. The Supreme

Court laid down a Constitutional marker that has endured

for two centuries that an individual has a right to judicial

review of an Executive Branch decision applying a

statute:

But where a specific duty is assigned by law, and

individual rights depend upon the performance of

that duty, it seems equally clear that the individual

22

who considers himself injured, has a right to resort

to the laws of his country for a remedy. Emphasis

Added.

The Marbury Court made clear that the Constitution

provides that the Supreme Court has a right of judicial

review over any case arising under the laws of the country:

The constitution vests the whole judicial power of the

United States in one supreme court, and such inferior

courts as Congress shall, from time to time, ordain

and establish. This power is extended to all cases aris-

ing under the laws of the United States; and conse-

quently, in some form, may be exercised over the

present case; because the right claims is given by a

law of the United States. Emphasis Added.

Like any citizen, an Executive Branch official always ~

has a right to appeal judicial decisions of district and cir-

cuit courts interpreting statutes if the Solicitor General of

the United States believes that the district or circuit court

incorrectly interpreted a law or an Executive Branch

interpretation of the law. However, once the Supreme

Court has rendered its decision, there can be no further

Executive Branch appeal.

Thus, if the President’s SSA Commissioner and the

Attorney General fulfill their Article II, Section 3 duty to

“take Care that the Laws be faithfully executed,” then SSA

Commissioner Barnhart and Attorney General Ashcroft

should acquiesce to the unappealed Jackson decision. If

SSA Commissioner Barnhart believes that Jackson was

“incorrectly” decided, then the remedy is to amend the

regulation and not breach the Executive Branch duty to

“take Care” that the laws be faithfully executed.

23

B. The Mendosa nonacquiescence policy standard.

In Mendosa, the Court established the standards by

which the Executive Branch can implement a nonacqui-

escence policy in an Immigration and Naturalization

case. Hecht raises the issue of whether the Mendosa

nonacquiescence holding applies to the Social Security

Administration and to a Ford v Shalala nationwide class

member.

The Department of Health and Human Services (HHS)

and Social Security Administration nonacquiescence pol-

icy has a two decade long jurisprudence history. See The

Constitutional Case Against Intracircuit Nonacquies-

cence, Coenan, 75 Minn. L. Rev. 1399 (1991). Request for

Public Comments: Agency Nonacquiescence in Decisions

of the Court of Appeals, 53 FR 71 (April 14, 1988).

Nonacquiescence by Federal Administrative Agencies,

98 Yale L.J. 679 (1989). Intracircuit Nonacquiescence

and the Breakdown of the Rule of Law: A Response to

Estreicher and Revesz, 99 Yale L.J. 801 (1989). Social

Security Administration Nonacquiescence: The Need for

Legislative Curbs on Agency Discretion, 50 U. Pitt. L.

Rev. 399 (1989).

The Second Circuit has had an over decade long expe-

rience reviewing the implementation of the Social Secu-

rity Act “nonacquiescence” policy of HHS Secretaries

Heckler, Bowen, Sullivan, and Shalala in the Stieberger

litigation saga. See Steiberger I v. Heckler, 615 F. Supp.

1315 (S.D.N.Y. 1985) vac, 801 F. 2d 29 (2d Cir. 1986),

Stieberger II v. Sullivan, 738 F. Supp. 716 (N.D.N-Y.

1990), Stieberger III v. Sullivan, 792 F. Supp. 1376

(S.D.N.Y. 1992), 801 F. Supp. 1079 (S.D. N.Y. 1992),

24

Stieberger IV v. Apfel, 134 F. 3d 37 (2d Cir. 1997), rev’g

Stieberger v. Chater, No. 95 cv 5622), Stieberger V v.

Apfel, 1998 WL 556156 (S.D.N.Y. 1998). See also The

Politics of Nonacquiescence” The Legacy of Stieberger

v. Sullivan, 46 West SRRS 821 (1995).

The issue of the application of the Mendosa standard

after the July 25, 1985 sworn Congressional testimony of

Acting SSA Commissioner Mc Steen and DAAG Kuhl

indicating that the HHS nonacquiescence policy had

ended on June 3, 1985, was presented to this Court in

Gordon v. Shalala, 55 F. 3d 101 (2d Cir., cert. den. 517

U.S. 1103, 116 S. Ct. 1317, 134 L. Ed. 470 (1996). In the

government’s February, 1996 Gordon Brief in opposition

to the petition for a writ of certiorari, Solicitor General

Days made the Mendosa nonacquiescence argument not-

withstanding Solicitor General Days’ knowledge of the

sworn July 25, 1985 Congressional testimony that the non-

acquiescence policy was to have ended on June 3, 1985.

Hecht provides an opportunity for the Court to review

the process of how the Solicitor General applied the Men-

dosa standard to the SSI program. SSI recipients have

limited access to legal resources to appeal the agency’s

nonacquiescence decisions which would allow for the

percolation of decisions to this Court. See the SSI nonac-

quiescence regulation. 20 C.F.R. § 416.1485 Application

of Circuit Court Law.

C. The June 14, 1991 Associate Commissioner Pri-

vate Rental Subsidies Memo

The petitioner argues that the Second Circuit erred

when it determined that the payment by the Trustee of the

rent of the Daniel Hecht was not a rent subsidy. In the

25

Second Circuit Record was a June 14, 1991 memo that

had been secured in a FOIA action that clearly indicated

that HHS Secretary Sullivan had determined that private

payments of rent for SSI recipients were rent subsidies.

See Appendix Exhibit B.

The memo of the Deputy Commissioner for Programs

identified the private rental subsidy issue that was caused

by the “Jackson” income regulation, 20 C.F.R. § 416.1130(b),

only being applied within the three Seventh Circuit States:

In 1989, Ruppert challenged rental subsidy policy

(and related issues) in the Second Circuit. That court

remanded three of the eleven cases for determina-

tions of whether the rental subsidies charged reflect-

ed any actual economic benefit. Although the court

did not require application of the Jackson regulation,

it did suggest that the regulation might provide a

good indication of economic benefit. Jd. at p. 2.

Emphasis Added.

The Deputy Commissioner flagged in 1991 the same

2003 Bush v. Gore equal protection conundrum of SSA

Commissioner Barnhart, that different standards were

being applied in the Seventh and Second Circuit States in

a program that the Congress intended was to apply equal

standards in all 50 States:

Under this option, the Jackson rule would continue

to apply in the Seventh and Second Circuits. Jn these

circuits, therefore, whether the required rent equals

or exceeds the presumed maximum value, in-kind

support and maintenance will not be found as a

result of that arrangement. If the requires rent is less

than the presumed maximum values, the amount of

26

the rental subsidy would be the difference between

the required rent and the presumed maximum value

or current market value, whichever is less. Jn all

other circuits, however, we would continue to con-

sider the difference between the current market

rental value and the amount of rent charged as a

rental subsidy. The amount of in-kind support and

maintenance charged the individual would be subject

to the presumed maximum value.” /d. at 7-8. Empha-

sis Added.

The Second Circuit chose to ignore the Associate Com-

missioner’s June 14, 1991 Rental Subsidies Decision and

the fact that the State Court Judge included this Court’s

Ruppert holding in the State Court ordered Trust:

The distinction POMS SI 01120.200 draws between

trust principal and disbursements is persuasive both

because it is consistent with the treatment of in-kind

income in 20 C.F:R. 416.1103 (g) as well as with

New York State trust law. See.N.Y. Est. Power &

Trusts Law 7-1.12(b)(3) (Mc Kiriney 2002) (actual

distributions from the trust may be considered to be

income or resources of the beneficiary to the extent

provided by the terms of any (government benefits)

program”). Emphasis Added.

The petitioner argues that if the “power to persuade”

standard is to be applied, then it is first to be applied by

SSA Commissioner Barnhart after reading the unredact-

ed June 14, 1991 Rental Subsidy memo with its Jackson

options. The Court deferred to the Executive Branch

Counsel’s opinion that the payment by the Trustee of the

rent was not a private rent subsidy. The Record does not

27

indicate that the SSA Commissioner had considered the

options presented in the June 14, 1991 Rental Subsidies

memo that directly addressed the Jackson nonacquies-

cence policy conundrum when there were private rent

subsides in the States that were not within the Seventh

Circuit.

The Second Circuit determined that the Jackson and

Ruppert holdings and the application of 20 C.F.R.

416.1130 (b), did not apply based on its conclusion that

this case did not involve a rent subsidy notwithstanding

the panel’s acknowledgement that Daniel did not pay for

his own rent:

In this case, however, as the district court correctly

observed, Hecht does not pay any rent. Rather, it

is the Trustee who, pursuant to court order, pays

Hecht’s parents for his room and board. When a

third party pays a recipient’s expenses, the applica-

ble regulation is 20 C.F.R. 416.1103(g) (1994),

which provides for “the value of anything the recip-

ient receives as a result of such payment (to be)

included in the recipient’s income. “Ellis v. Apfel

147 F. 3d at 141. Thus, a third party’s payment of

some amount of room and board provides Hecht

with in-kind income pursuant to 416.1103(g).” Jd.

Emphasis Added.

The petitioner argues that the June 14, 1991 memo is a

“smoking gun” memo that the Second Circuit erred when

it held that the payment of the rent by the Trustee of the

SNT was not a private rent subsidy. The petitioner argues

that if the Attorney General and the SSA Commissioner

acquiesce to Christensen, then SSA Commissioner Barn-

28

hart should be reading the June 14, 1991 memo when

considering the content of the “Ford” Noticies sent to

Ford class members who receive private rent subsidies.

D. The tandem application of Bush v. Gore equal

protection standard with the Christensen admin-

istrative law standard reveals the fatal flaw in

applying the Mendosa nonacquiescence policy to

SSI program in which Congress intended that

there be an equal application of the duly promul-

gated regulations in all 50 States.

Since Congress intended that SSI regulations be equal-

ly applied in all 50 States, the appellant argues that the

tandem application of the Bush v. Gore, 121 S. Ct. 525

(2000), equal protection standard with the Christensen

administrative law standard, will eliminate any vestige of

the implementation of the pre-June 3, 1985 nonacquies-

cence policy that has survived into 2003. The plaintiff

argues that the “law” to be cited in the Ford Notices sent

to millions of legally defenseless SSI recipients residing

in all 50 states, both within and without the circuits, must

be the same duly promulgated regulations.

In Bush v. Gore, the Supreme Court held that the gov-

ernment must apply the same legal standard when making

the same adjudication:

The problem inheres in the absence of specific stan-

dards to ensure its equal application. The formula-

tion of uniform rules to determine intent based on

these recurring circumstances is practicable and, we

conclude, necessary. Bush v. Gore, 121 S. Ct. 525

(2000).

29

The petitioner makes the Bush v. Gore equal protection

argument that if the same “chad” voting rule must be

equally applied in Palm Beach County as applied in Dade

County, then the same Jackson regulatory standard

applied in the Seventh Circuit States, must be applied

equally in all 50 States. As long as SSA Commissioner

Barnhart does not apply the same duly promulgated reg-

ulatory standards equally in all 50 States, then this is an

ongoing per se violation of the Bush v. Gore equal pro-

tection standard as applied to the SSI recipients in the 47

States whose benefits were reduced because the SSI

recipients received private rental subsidies that paid their

rent which was more than one-third of their monthly SSI

income.

If the Court granted the petition, then Attorney Gener-

al Ashcroft and Solicitor General Olson would have to

address not only the Bush v. Gore equal protection stan-

dard issue, but also the Christensen administrative law

holding as to Judicial deference to duly promulgated reg-

ulations, and not deference to Executive Branch coun-

sel’s interpretations of the regulations. The fact that the

Jackson regulation is not applied in all 50 States reveals

the fatal flaw in the argument that the Mendosa nonac-

quiescence standard should be applied to HHS and SSA

cases.

In summary, the petitioner respectfully submits that the

Court grant the petition in order that the Court can

address the issue of whether the Mendosa nonacquies-

cence policy holding applies to the SSA. This is a timely

issue because SSA Commissioner Barnhart and Attorney

General Ashcroft have an Article II, Section 3 duty “to

take care that the Laws be faithfully executed” when they

30

construct the “Ford” Notices sent to SSI recipients like

petitioner Hecht who receives private rent subsidies.

CONCLUSION

Therefore, it is respectfully submitted that the petition

be granted.

Respectfully submitted,

Charles Robert

KASSOFF, ROBERT, LERNER

& ROBERT, LLP

100 Merrick Road — Suite 508W

Rockville Centre, New York 11570

516-766-7700

Counsel for Petitioner

September 25, 2003