Petition for Writ of Certiorari — Jones v. Secretary of Health & Human Services

Supreme Court, u.

FILED -

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@RCE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER 1994 TERM

WILKEN JONES, JR. Petitioner,

Vs.

SECRETARY OF HEALTH AND HUMAN SERVICES, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Wilken Jones, Jr.

Route 4 Box 367

Opelousas, Louisiana 70570

(318) 826-7415

Speen LAS DANS

QUESTIONS PRESENTED

WHETHER THE U.S. DISTRICT COURT DID ERR WHEN IT

GRANTED THE RESPONDENT’S MOTION TO DISMISS,

FOR LACK OF SUBJECT MATTER JURISDICTION, AND

DENIED PETITIONER’S MOTION FOR SUMMARY JUDGE-

MENT

TABLE OF CONTENTS AND AUTHORITIES

TABLE OF CONTENTS

PETITION

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

TABLE OF CASES AND AUTHORITIES

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF CASE

REASONS FOR GRANTING THIS WRIT

CONCLUSION

APPENDIX A

COMPLAINT

Order dated July 1, 1993 of the United States District

Court for the Western District of Louisiana

Opinion of the United State Court of Appeals for the

Fifth Circuit dated March 22, 1994

STATUTE: 42 U.S.C.A. 406 (a)

Al-Al4

A-2

A-5

A-6

A-9

TABLE OF CASES AND AUTHORITIES

UNITED STATES SUPREME COURT:

Page

Northeastern Florida Contractors v. Jacksonville 21

113 S.Ct. 2297 (1993)

Powers v. Ohio, 111 S.Ct. 1364 (1991) 18

Roberts v. United States Jaycees, 104 S.Ct. 3244 (1984) 15

Singleton v. Wulff, 96S. Cr. 2868 (1976) 19

13

88 S.Ct. 353 (1967)

United Ti rtation Union v. State of Michigan, 20

91S.Cr. 1076 (1971)

Weinberger v. Weisenfeld, 420 U.S. 636 (1975) 16

Federal Cases Other:

Allen _v. Heckler, 780 F 2d 64 (D.C. Cir. 1985) 16

Elias_v. U.S. Department of State, 721 F Supp. 243 18

(N.D. Ca. 1989)

Fowler v. United States, 633 FE2d 1258 (8th Cir. 1980) 16

Linquist _v. Bowen, 633 F Supp. 846 (W.D. Mo. 1986) 22

Wauchope v. U.S. Department of State, 756 E Supp. 1277 23

(N.D. Ca. 1991)

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend |

U.S. Const. amend V

STATUTES:

42 U.S.C.A. 406 (a) 10

CO \O

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER 1994 TERM

WILKEN JONES, JR., ET AL Petitioner,

Vs.

SECRETARY OF HEALTH AND HUMAN SERVICES, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

From the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate Justices of the

Supreme Court of the United States.

Wilken Jones, Jr., the Petitioner herein, pro se, prays that a writ

of certiorari issue to review the judgment of the United States

Circuit Court of Appeals for the Fifth Circuit entered in the

above entitled case on March 22, 1994.

OPINIONS BELOW

The opinion and order of the United States District Court

for the

Western District of Louisiana are unreported, and are printed in

Appendix A. The opinion of the United States Court of Appeals

for the Fifth Circuit is unreported, and is printed in Appendix A.

JURISDICTION

The district court’s jurisdiction was based on 28 U.S.C.A.

1361 and 28 U.S.C.A. 1331, and involved the constitutionality of

the Social Security Act, 42 U.S.C.A. 406 (a). The United States

Court of Appeals for the Fifth Circuit had jurisdiction over the

appeal under 28 U.S.C.A. section 1291. The United States

Supreme Court has jurisdiction over the appeal under 28

U.S.C.A. 1254.

CONSTITUTIONAL PROVISION INVOLVED

The following constitutional provision relevant to the

instant case is:

U.S. Const. Amend. V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a present

ment or indictment of a Grand Jury, Except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of war or

public danger, nor shall any person be subject for

the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be de

prived of life, liberty, or property, without due

process of law; now shall private property be

taken for public use, without just compensation.

U.S. Const. Amendment I:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the ~~>°s; or the right of the people

peaceable to assemble, and \_ petition the Government for redress

of grievances.

Statement of the Case

Petitioner filed suit, pro se, challenging the constitutional-

ity of 42 U.S.C.A. 406 (a) in district court, CA No. 92-1365,

because it violated the equal protection provision of the U.S.

Constitution. 42 U.S.C.A. 406 (a) violates the equal protection

provision of the fifth amendment by permitting representatives

who are attorneys that are successful in representing claimants

before the Secretary to have their fees withheld by the Secretary

from claimants’ past-due benefits. No similar provision is made for

other successful representatives of claimants who are not attor-

neys.

Petitioner, Wilken Jones, Jr., is a citizen of Louisiana.

®ecitioner is a para-legal engaged in providing services to many

claimants before the Secretary over the years. Petitioner has been

recognized by the Secretary, im accordance with 42 U.S.C.A.

section 406 (a), that he is of good character and in good repute,

possessed of the necessa.v qualifications to enable him to render

such claimants valuable service, and otherwise competent to

advise and assist such claimants in the presentation of their cases.

Petitioner has a fundamental interest in this action under

the equal protection provision of the fifth amendment which

provides a right of each person to a constitutional guarantee of

equal protection under the law. Petitioner is directly and adversely

affected by the statute.

The district court, without giving reasons, granted

10

Respondent’s Motion to Dismiss, for lack of subject matter juris-

diction, and denied Petitioner’s Motion for Summary Judgement.

The U.S. Fifth Circuit Court of Appeals affirmed the

district court’s decision in an unreported opinion.

The Petitioner hereby appeals that decision.

Petitioner filed suit, pro se, in district court challenging

the constitutionality of the provision of the aforementioned

statute contending that the challenged statute violated the equal

protection provision of the Due Process Clause of the Fifth

Amendment of the U.S. Constitution.

The district court ruled that it lacked subject matter

jurisdiction to consider a constitutional challenge of the statute in

question and dismissed the suit.

The district court does have subject matter jurisdiction

over a suit challenging the constitutionality of an Act of Congress

establishing the statute in question. It has long been established

that it is for the court to determine what is the law.

The district court erred when it denied our motion for

summary judgment. The equal protection provision of the Due

Process Clause of the Fifth Amendment stands to protect us from

deprivation of life, liberty, or property without due process of law.

This provision serves to guarantee that individuals who are

11

similarly situated are treated similarly unless there is some compel-

ling state interest.

Legal representatives that are not attorneys who practice

before the Secretary are not allowed to have their fees withheld by

the Secretary out of benefits awarded to claimants. Legal repre-

sentatives who are attorneys who practice before the Secretary are

allowed to have their fees withheld by the Secretary. This practice

violates the equal protection provision of the due process clause of

the fifth amendment.

The correct standard of review is strict scrutiny because

the challenged statute affect some fundamental rights. The

fundamental rights affected are those protected by the first amend-

ment, including the right to assemble and petition the government

for redress.

The district court and the Court of Appeals’ decisions are

plainly erroneous as a matter of law because these courts applied

the incorrect standard of review, rationally related, when they

considered whether the challenged statute, 42 U.S.C.A. 406 (a),

violated the equal protection component of the Due Process

Clause of the Fifth Amendment of the U.S. Constitution and

found that no fundamental rights were affected by the challenged

statute.

“We start with the premise that the rights to

assemble peaceably (freedom to associate) and to petition

12

for a redress of grievances (access to court) are among the

most precious of the liberties safeguarded by the Bill of

Rights. These rights moreover, are intimately connected

both in origin and in purpose, with the other First

Amendment rights of free speech and free press. All

these, though not identical, are inseparable. The First

Amendment would, however, be a hollow promise if it left

government free to destroy or erode its guarantees by

indirect restraints so long as no law is passed that prohibits

free speech, press, petition, or assembly as such. We have

therefore repeatedly held that laws which actually affect

the exercise of these vital rights cannot be sustained:

merely because they were enacted for the purpose of

dealing with some evil within the State’s legislative

competence, or even because the laws do in fact provide a

helpful means of dealing with such an evil.” United Mine

W. of A., Dist. 12 v. Illinois ST. Bar Ass'n, 389 U.S. 217,

88 S. Cer. 353,356 (1967), (internal citations omitted),

(parenthesis and information within _—_ added).

The Court of Appeals which affirmed the district court’s decision

is plainly erroneous because the Appeals Court stated: “Moreover,

it is not clear that the statutory classification, which neither

proceeds along suspect lines nor infringes fundamental constitu-

tional rights, can not be supported by any reasonable conceivable

state of facts that could provide a rational basis for the classifica-

tion.” (Per unreported opinion, See opinion, Appendix A). This

legal conclusion, that this case neither proceeds along suspect lines

nor infringes fundamental constitutional rights, is not correct and

is not supported by law. The district court’s decision is

13

plainly erroneous because the district court failed to apply

the correct standard of review. The correct standard of

review in this case is strict scrutiny because the challenged

statute affects fundamental rights. The challenged statute

violates the equal protection provision of the Due Process

Clause of the Fifth Amendment of the U.S. Constitution.

The fundamental rights affected by the challenged statute

include:

(1)

(2)

(3)

The right of legal representatives to associate with

persons before the Secretary free of any govern-

mental restraint or interference and the reciprocal

right of persons to associate with Petitioner.

The right of persons that Petitioner represents

before the Secretary to have effective legal repre-

sentation of their choice free of any government

restraint or interference and the reciprocal rights

of the Petitioner to provide effective legal repre-

sentation for those persons Petitioner represents

before the Secretary free of any government

restraint or interference.

The right of the persons that Petitioner represents

before the Secretary to have access to the courts

free of any government restraint or interference.

The freedom to associate is restrained and infringed upon

by the challenged statute because the challenged statute has a

chilling effect on persons seeking representation before the

14

Secretary and upon legal representatives seeking to provide this

legal service. The challenged statute works in practice to force

legal representatives to look more at the ability of persons to pay

for the legal service instead of focusing in on the strengths and

weaknesses of the disability claim. “Determining the limits of state

authority over an individual’s freedom to enter into a particular

association therefore unavoidably entails a careful assessment of

where that relationship’s objective characteristics locate it on a

spectrum from the intimate to the most attenuated of personal

attachments. ...(F)actors that may be relevant include size,

purpose, policies, selectivity, congeniality, and other characteristics

that in a particular case may be pertinent.” Roberts v. United

States Jaycees, 468 U.S. 622, 104 S. Cr. 3244, 3251 (1984).

In the instant case, Petitioner is within that ambit of

protection the court has recognized. Petitioner has a confidential

relationship with the person he represents. The purpose of the

association is to obtain the constitutionally protected rights of due

process and the right to effective legal representation.

It should be noted that the statute in controversy does not

provide payment of the attorney fees by the government. It only

provides that the government withhold attorney fees out of the

past-due benefits of a claimant who has been successful in obtain-

ing benefits under the Act. Thus the government is not allocating

limited public funds, it is a question of securing adequate represen-

tation for the claimants.

15

We acknowledge that Congress may set the minimum

requirements necessary, allow any qualification of certification

substitutions, and waive any other admission requirement it sees

fit. Congress has the power to permit only attorneys or only non-

attorneys to represent claimants before the Secretary if it so

desires. If Congress feels that the requirements are to low it may

raise them. Conversely if Congress feels that the requirements are

too high it may lower them. “But... it is not the entrance require-

ments that are in dispute. Instead, the issue here is whether the

government may withhold from... (one group of representatives) a

range of benefits it has chosen to extend to similarly situated...

(representatives).” Fowler V. United States, 633 F.2d 1258, 1263

(8th Cir. 1980), (parenthesis and information within added).

The Fowler case involved unequal treatment between mentally

retarded and non-retarded employees. In the instant case, allow-

ing non-attorneys to be representatives “does not justify giving

them Second-class status once they are on the job. See Fowler _v.

United States, 633 F2d 1258, 1263 (8th Cir. 1989) (distin-

guishing disparate hiring criteria from disparate terms of employ-

ment once hired).” Allen v. Heckler, 780 F2d 64, 67 (D.C. Cir.

1985). Thus “by providing dissimilar treatment for (those) who

are similarly situated, the challenged section violates the Due

Process Clause.” Weinberger v. Weisenfeld, 420 U.S. 636, 652

(1975). |

The right of persons that Petitioner represents before the

16

Secretary to have effective legal representation of their choice free

of any government restraint or interference has been restrained

and infringed upon by the challenged statute because the govern-

ment is in effect promoting some legal representatives and effec-

tively restraining other legal representatives. Legal representatives

who are not attorneys and who otherwise, except for this chal-

lenged statute, would have the opportunity and ability to be

retained by persons who otherwise could not afford to pay for such |

services prior to a hearing before the Secretary. The government '

- by extending benefits to one group or class of legal representatives

is effectively promoting that group or class of legal representatives.

Also, the government by withholding or denying benefits to one

group or class of legal representatives is effectively prohibiting or

infringing upon the persons right to have effective legal represen-

tation of their choice free of any government restraint or interfer-

ence.

Petitioner's assertion of third party rights is proper in this

instance. The court has noted: “In appropriate circumstances, the

federal courts have upheld a plaintiff’s assertion of third party

rights. Singleton, 428 U.S. at 112-18 (doctors who perform non-

medically indicated abortions may assert patients’ constitutional

rights); 429 U.S. at 194-97 (female beer vendor allowed to asset

equal protection challenge of male beer drinkers); Irving v.

Clard, 758 E2d 1260, 1267 (8th Cir. 1985) (child of deceased

landowner permitted to assert parent’s fifth amendment just

17

compensation claim). To determine whether such an assertion

should be allowed, the court should consider two factors: (1) the

relationship of the litigant to the person whose right he or she

seeks to assert, and (2) the ability of the third person to assert his

or her own right. Singleton, 428 U.S. at 114-16.” Elias v.

Department of State, 721 F Supp. 243, 246 (N.D. Ca. 1989).

Also this court has noted: “in certain circumstances “ the rela-

tionship between the litigant and the third party may be such that

the former is fully, or very nearly, as effective a proponent of the

right as the latter. ...che relation between petitioner and the

excluded jurors is as close as, if not closer than, those we have

recognized to convey third-party standing in our prior cases. See,

e.g., Griswold _v. Connecticut, (Planned Parenthood official and

a licensed physician can raise the constitutional rights of contra-

ceptive users with whom they had professional relationships);

Craig, (licensed beer vendor has standing to raise the equal

protection claim of a male customer challenging a statutory

scheme prohibiting the sale of beer to males under the age of 21

and to females under the age of 18); Triplett, (attorney may

challenge an attorney’s fees restriction by asserting the due process

rights of the Client).” Powers v. Ohio, 111 S.Ct. 1364, 1372

(1991), (citations omitted).

First we look at the relationship of the litigant to the

person whose right the Petitioner seeks to assert. In this instant

the Petitioner is the legal representative of the third party whose

18

right the Petitioner seeks to assert. The legal representative not

only has a right to assert this third party right but more likely a

legal duty to assert all the rights of the person he represents. The

effective legal representation is inextricable bound up with the

activity the Petitioner wishes to pursue. The relationship be-

tween the Petitioner and the third party is such that the Peti-

tioner is fully, or very nearly, as effective a proponent of the right

as the third party. The confidential nature of the relationship

between the Petitioner and the third party were such that the

rights of the third person were likely to be diluted or adversely

affected if they could not be asserted is such a case. Singleton _v.

Wulff, 96 S. Ct. 2868, 2874 (1976). See also Eisenstadt_v.

Baird, 405 U.S. 438, 445-446, 92 S.Ct. 1029, 1034, 31 L.Ed.

349 (1972) (stressing advocate relationship and impact of the

litigation on the third-party interests).

The other factual element to which the Court has looked

is the ability of the third party to assert his own right. In this

instant, the third party engages the Petitioners to assert its right

before the Secretary. Generally, the third party is a person that

comes before the Secretary claiming to be disabled. Often the

third party has limited education to allow him to assert his own

rights and no funds to pay for adequate legal representation. The

closeness of the relationship and nature of relationship, legal

representative and client, makes it proper for Petitioner to assert

the legal rights of the third party.

19

Therefore, for reasons stated above, representatives may

assert the right of the claimants they represent.

The right of the persons that Petitioner represents before

the Secretary to have access to the courts free of any government

restraint or interference has been restrained and infringed upon by

the challenged statute because it works to limit meaningful access

to the courts. “At issue here is the basic right to...legal action.

...(T)hat collective activity undertaken to obtain meaningful

access to the courts is a fundamental right with the protection of

the First Amendment. However, that right would be a hollow

promise if courts could deny associations of workers or others the

means of enabling their members to meet the costs of legal

representation.” United Transportation Union v. State Bar of

Michigan, 410 U.S. 576, 91 S.Ct. 1076, 1082 (1971).

Petitioner is the first option many persons have in gaining mean-

ingful access to the courts. If a person received ineffective legal

representation or was unable to retain any legal representation at

the hearing before the Secretary, then his access to the courts has

already been restrained because the decision of the Secretary is

only reviewable by the courts to determine if the Secretary’s

decision is supported by substantial evidence.

The Court of Appeals below noted: “Jones has not

established that he has a clear right to relief. Jones fails to allege

that the Secretary ever denied him payment for his representation

of a social security claimant, that he ever requested such payment,

20

or that he has in fact represented a claimant who was determined

to be entitled to past-due benefits under the Act. Thus, there is

an insufficiently real and concrete dispute with respect to applica-

tion of the challenged provision.” First, it is well established that

pro se complaints are to be construed liberally by the courts.

Secondly, this court has noted: “When the government erects a

barrier that makes it more difficult for members of one group to

obtain a benefit than it is for members of another group, a member

of the former group seeking to challenge the barrier need not

allege that he would have obtained the benefit but for the barrier

in order to establish standing. The “injury in fact” in an equal

protection case of this variety is the denial of equal treatment

resulting from the imposition of the barrier, not the uitimate

inability to obtain the benefit.” Northeastern Florida Contractors

v. Jacksonville, 113 S.Ct. 2297, 2303 (1993), (underlining

added).

B. Whether jurisdiction is proper in district court

pursuant to mandamus statute, 28 U.S.C.A.

section 1361.

The mandamus statute, 28 U.S.C.A. section 1361, states:

“The district courts shall have original jurisdiction of any action in

the nature of mandamus to compel an officer or employee of the

21

United States or any agency thereof to perform a duty owed to the

plaintiff.”

The Secretary has a duty under the equal protection

provision of the fifth amendment to treat the Petitioner equally in

providing and withholding benefits to representatives of claimants

who are attorneys as well as to those who are not attorneys. Equal

justice for all is Petitioner’s constitutional right. “Once the nature

of defendants’ duty is determined, the performance of that duty by

defendants’ is absolute; they have no discretion to do other than

the Constitution...require.“ Linquist v. Bowen, 633 ESupp. 846,

854 (W.D. Mo. 1986). The Linquist court further noted that

“mandamus is available even if there is a dispute about the nature

of the legal duty. The essential element of mandamus jurisdiction

is that once the duty is defined by the Court, the Agency has no

discretion discharging that duty.... (T)he Court observed that

whether the Secretary had a clear duty to act would entail an

analysis of the merits of appellant’s whole case. Therefore, in

order to determine whether mandamus jurisdiction is available,

the allegations of the complaint are taken as true unless they are

patently frivolous. ...(Q)uestions of Congressional intent and

constitutional requirements are the essence of this dispute.”

Id.

The judiciary has the power to order the Secretary to

withhold the fees of representatives of claimants who are non-

attorneys from past-due claimants’ benefits because of Petitioner's

22

constitutional claim. “The distinction between constitutional and

other challenges to...statutes is well-grounded in the case law.

...Courts are able to grant relief to (Petitioner), even if such relief

would contravene congressional enactments, if the (Petitioner)

demonstrates a constitutional violation.” Wauchope v. U.S.

Department of State, 756 FSupp. 1277 1286 (N.D. Ca. 1991).

23

Conclusion

For the foregoing reasons this petition for a writ of certio-

rari should be granted.

Respectfully Submitted:

Wilken

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Petition for

Writ of Certiorari was mailed postage prepaid, on the

day

of June, 1994, to:

(1) Mr. Broadwell, Assistant United States Attorney.

Cheif Division

300 Fannion Street, Suite 3201

Shreveport, LA 71101-3068

(2) Donna E. Shalala, Secretary of Health and Human

Services

200 Independence Avenue, S.W.

Washington, D.C. 20201

Wikken Jones “fr

APPENDIX A

United States District Cort

Western District of Louisiana

LAFAYETTE-OPELOUSAS DIVISION

Wilken Jones, Jr., and other similarly situated representatives of

claimants,

Plaintiff

Versus Civil Action No. 92-1365

Date Filed : July 16, 1992

United States Department of Health and Human Service, and the

United States of America.

Defendants.

PETITION FOR JUDICIAL REVIEW

The Petition of the Plaintiff, Wilken Jones, Jr., through

himself, respectfully represents as follows:

1. Plaintiff files this civil action seeking judicial review

of a statute, 42 U.S.C.A. section 406 (a) : “Representation of

claimants before the Secretary”, as it relates to the unequal protec-

tion of persons representing claimants before the Secretary.

2. Plaintiff challenges the constitutionality of the

statute, 42 U.S.C.A. 406 (a), which states in pertinent part: “.

the Secretary . . . shall, if the claimant was represented by an

attorney, in connection with such claim. If as a result of such

determination, such claimant is entitled to past-due benefits under

this subchapter, the Secretary shall, for payment (out of such past-

due benefits) to such attorney... .” (Underlining added).' No

similar provision is made for other representatives of claimants.

A-2

This unequal treatment of representatives entitled to represent

claimants before the Secretary violates the equal protection clause

of the Fifth and Fourteen Amendments.

3. Plaintiff seeks a judgment from this court declaring

that the statute is unconstitutional and a decree enjoining the

Secretary from prohibiting non-attorneys representing claimants

from having their fees withheld out of claimants past-due benefits

as is the case with attorneys representing claimants.

4. Jurisdiction in this court is proper pursuant to:

mandamus statute, 28 U.S.C.A. section 1361; federal question

under 28 U.S.C.A. section 405 (g).

Plaintiff

5. Plaintiff, Wilken Jones, Jr., is a citizen of Louisiana.

Plaintiff is para-legal engaged in providing services to claimants

before the Secretary. Plaintiff has been recognized by the Secre-

tary, in accordance with 42 U.S.C.A. 406 (a), that he is of good

character and in good repute, possessed of the necessary qualifica-

tions to enable him to render such claimants valuabe service, and

otherwise competent to advise and assist suck claimants in the

presentation of their cases.

6. Plaintiff has a fundamental interest in this action

under the equal protection clause of the fourteenth and fifth

amendment which provides a right of each person to constitu-

tional guarantee of equal protection under the law.

7. Plaintiff is directly and adversely affected by the

statute.

A-3

Wherefore, Plaintiff —

A. Declare the statute, 42 U.S.C.A. 406 (a), invalid

because it violates the equal protection clause of the Fourteenth

and Fifth Amendments.

B. Order and direct the Secretary to treat all representa-

tives of claimants equally as it relates to the withholding of fees

from claimants’ past-due benefits for services provided.

C. Award the Plaintiff all costs of this action.

D. Grant such other relief as the court may deem

appropriate.

Respectfully submitted,

Wilken Jones, Jr.

A-4

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

WILKEN JONES, JR., et al, * CIVIL ACTION NO.

92-1365

Plaintiffs, * CV 92-1365

vs. * JUDGE HAIK

DONNA E. SHALALA, * MAGISTRATE JUDGE

TYNES

SECRETARY OF HEALTH AND *

HUMAN SERVICES * DATE OF JUDGEMENT

Defendant. * JULY 1, 1993

JUDGEMENT

The Court having considered the memoranda and argu-

ment of counsel,

IT IS HEREBY ORDERED, ADJUDGED - DECREED

_ that the United States Department of Health and Human

Service’s Motion to Dismiss is GRANTED; that plaintiff’s Motion

for Summary Judgement is DENIED; and that plaintiff’s com-

plaint is DISMISSED WITH PREJUDICE.

Thus Done and Signed in Lafayette, Louisiana this

_Ist__ day of July, 1993.

RICHARD T. HAIK

UNITED STATES DISTRICT

JUDGE

A-5

Pee ee ee a ee eS ee eS ee ee

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 93-5129

(Summary Calendar)

Date 3-22-94

WILKEN JONES, JR., and other

similarly situation representatives

of claimants,

Plaintiff-Appellant,

versus

U.S. SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

(6: 92-CV-1365)

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:

Plaintiff Wilken Jones, Jr., brought suit against the Secretary of

Health and Human Services ("the Secretary“), alleging that the

Social Security Act deprives non-attorneys who represent Social

Security Claimants of equal protection.' The Secretary moved to

Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and burdens on the legal

profession.“ Pursuant to that Rule, the Court has detrermined that this

A-6

dismiss for lack of subject matter jurisdiction, and Jones moved for

summary judgement. The district court summarily granted the

Secretary's motion. Jones contends on appeal that mandamus

jurisdiction is proer under 28 U.S.C. S 1361.

Section 1361 vests district courts with original jurisdiction

over "any action in the nature of mandamus to compel an officer

or employee of the United States or any agency thereof to perform

a duty owed to the plaintiff.“ "Before mandamus is proper, three

elements must generally co-exist. A plaintiff must show a clear

right to the relief sought, a clear duty by the defendant to do the

particular act, and that no other adequate remedy is available.“

Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984).

Jones has not established that he has a clear right to relief.

Jones fails to allege that the Secretary ever denied him payment

for his representation of a social security claimant, that he ever

requested such payment, or that he has in fact represented a

claimant who was determined to be entitled to past-due benefits

under the Act. Thus, there is an insufficiently real and concrete

dispute with respect to application of the challenged provision.

See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

opinion should not be published.

The Act provides that

if the claimant is determined to be entitled to past-due benefits under this

subchapter and the person representing the claimant is an attorney, the Secretary

shall . . . certify for payment out of such past-due benefits . . . to such attorney

and amount equal to so much of the maximum fee as does not exceed 25 percent

of such past due benefits. . . .

42 U.S.C. S 406 (a) (4) (A) (1988).

A-7

305, 99 S. Cr. 2301, 2312, 60 L. Ed. 2d 895 (1979). Moreover, it

is not clear that the statutory classification, "which neither |

proceeds along suspect lines nor infringes fundamental constitu-

tional rights,“ can not be supported by "any reasonably conceiv-

able state of facts that could provide a rational basis for the

classification.“ EC.C. v. Beach Communications, Inc.,

U.S. 113 S. Cr. 2096, 2101, 124 L. Ed. 2d 211 (1993). Conse-

quently, Jones has failed to establish that the Secretary has a clear

duty to compensate him out of an award of past-due benefits.

For the foregoing reasons, we AFFIRM the judgement of

the district court. 3-22-94 Date of Judgement

A-8

The Social Security Act, 42 U.S.C., provides in pertinent

part:

406. Representation of claimants before Secretary

(a) Recognition of representatives; fees for representation before

Secretary

(a)(1) The Secretary may prescribe rules and regulations

governing the recognition of agents or other persons, other than

attorneys as hereinafter provided, representing claimants before

the Secretary, and may require of such agents or other persons,

before being recognized as representatives of claimants that they

shall show that they are good character and in good repute,

possessed of the necessary qualifications to enable them to render

such claimants valuable service, and otherwise competent to

advise and assist such claimants in the presentation of their cases.

An attorney in good standing who is admitted to practice before

the highest court of the State, Territory, District, or insular posses-

sion of his residence or before the Supreme Court of the United

States or the inferior Federal courts, shall be entitled to represent

claimants before the Secretary. The Secretary may, after due

notice and opportunity for hearing, suspend or prohibit from

further practice before him any such person, agent, or attorney

who refuses to comply with the Secretary’s rules and regulations or

who violates any provision of this section for which a penalty is

prescribed. The Secretary may, by rule and regulation, prescribe

the maximum fees which may be charged for services performed in

connection with any claim before the Secretary under this

subchapter, and any agreement in violation of such rules and

regulations shall be void. Except as provided in paragraph (2)(A),

whenever the Secretary, in any claim before him for benefits under

this subchapter, makes a determination favorable to the claimant,

he shall, if the claimant was represented by an attorney in connec-

ES eS Ee ee Me Ne ae TS GE, PS REE Me Se ieee Wad SLO ET ee Be a ee CE ne ee ae OL ae OR AE ee ee oe Eee rae

tion with such claim, fix (in accordance with the regulations

prescribed pursuant to the preceding sentence) a reasonable fee to

compensate such attorney for the services performed by him

connection with such claim.

(2)(A) In the case of a claim of entitlement to 25 past-due

benefits under this subchapter, if-

(i) an agreement between the claimant and another

person regarding any fee to be recovered by such person to com-

pensate such person for services with respect to the claim is

presented in writing to the Secretary prior to the time of the

Secretary's determination regarding the claim,

(ii) the fee specified in the agreement does not exceed

the lesser- of-

(1) 25 percent of the total amount of such past-due

benefits (as determined before any applicable reduction under

section 1320a-6(a) of this title), or

(Il) $4,000, and

(iii) the determination is favorable to the claimant,

then the Secretary shall approve that agreement at the time of the

favorable determination, and (subject to paragraph (3)) the fee

specified in the agreement shall be the maximum fee. The Secre-

tary may from time to time increase the dollar amount under

clause (ii)(II) to the extent that the rate of increase in such

amount, as determined over the period since January 1, 1991, does

not at any time exceed the rate of increase in primary insurance

amounts under section 415(i) of this title since such date, The

Secretary shall publish any such increased amount in the Federal

Register.

(B) For purposed of this subsection, the term “past due

benefits” excludes any benefits with respect to which payment has

A-10

oe ce Pe an ee See CW Ng el ae SN oe eee

been continued pursuant to subsection (g) or (h) of section 423 of

this title.

(C) In the case of a claim with respect to which the

Secretary has approved an agreement pursuant to subparagraph

(A), the Secretary shall provide the claimant and the person

representing the claimant a written notice of-

(i) the dollar amount of the past-due benefits (as

determined before any applicable reduction under section 1320a-

6(a) of this title) and the dollar amounts of the past-due benefits

payable to the claimant, :

(ii) the dollar amount of the maximum fee which may :

be charged or recovered as determined under this paragraph, and

(iii) a description of the procedures for review under

paragraph (3).

(3)(A) The Secretary shall provide by regulation for

review of the amount which would otherwise be the maximum fee

as determined under paragraph (@) if, within 15 days after receipt

of the notice provided pursuant to paragraph (2)(C)-

(i) the claimant, or the administrative law judge or

other adjudicator who made the favorable determination, submits

a written request to the Secretary to reduce the maximum fee, or

(ii) the person representing the claimant submits a

written request to the Secretary to increase the maximum fee.

Any such review shall be conducted after providing the

claimant, the person representing the claimant, and the adjudica-

tor with reasonable notice of such request and an opportunity to

submit written information in favor of or in opposition to such

request. The adjudicator may request the Secretary to reduce the

maximum fee only on the basis of evidence of the failure of the

person representing the claimant to represent adequately the

A-11

claimant’s interest or on the basis of evidence that the fee is clearly

excessive for services rendered.

(iii) the determination is favorable to the claimant,

then the Secretary shall approve that agreement at the time of the

favorable determination, and (subject to paragraph (3)) the fee

specified in the agreement shall be the maximum fee. The Secre-

tary may from time to time increase the dollar amount under

clause (ii)(II) to the extent that the rate or increase in such

amount, as determined over the period since January 1, 1991, does

not at any time exceed the rate of increase in primary insurance

amounts under section 415(i) of this title since such date. The

Secretary shall publish any such increased amount in the Federal

Register.

(B) For purposes of this subsection, the term “past due

benefits” excludes any benefits with respect to which payment has

been continued pursuant to subsection (g) or (h) of section 423 of

this title.

(C) In the case of a claim with respect to which the

Secretary has approved an agreement pursuant to subparagraph

(A), the Secretary shall provide the claimant and the person

representing the claimant and the person representing the claim-

ant a written notice of-

(i) the dollar amount of the past-due benefits (as

determined before any applicable reduction under section 1320a-

6(a) of this title) and the dollar amount of the past-due benefits

payable to the claimant,

(ii) the dollar amount of the maximum fee which may

be charged or recovered as determined under this paragraph, and

(iii) a description of the procedures for review under

this paragraph (3).

(3)(A) The Secretary shall provide by regulation for

review of the amount which —— _— be the maximum fee

as determined under paragraph (2) if, within 15 days after receipt

of the notice provided pursuant to paragraph (2)(C)-

(i) the claimant, or the administrative law judge or

other adjudicator who make the favorable determination, submits

a written request to the Secretary to reduce the maximum fee, or

(ii) the person representing the claimant submits a

written request to the Secretary to increase the maximum fee.

Any such review shall be conducted after providing the claimant,

the person representing the claimant, and the adjudicator with

reasonable notice of such request and an opportunity to submit

written information in favor of or in opposition to such request.

The adjudicator may request the Secretary to reduce the maxi-

mum fee only on the basis of evidence of the failure of the person

representing the claimant to represent adequately the claimant's

interest or on the basis of evidence that the fee is clearly excessive

for services rendered.

(B)(i) In the case of a request for review under subpara-

graph (A) by the claimant or by the person representing the

claimant, such review shall be conducted by the administrative

law judge who made the favorable determination or, if the Secre-

tary determines that such administrative law judge is unavailable

or if the determination was not made by an administrative law

judge, such review shall be conducted by another person desig-

nated by the Secretary for such purpose.

(ii) In the case of a request by the adjudicator for review

under subparagraph (A), the review shall be conducted by the

Secretary or by an administrative law judge or other person (other

than such adjudicator) who is designated by the Secretary.

(C) Upon completion of the review, the administrative

law judge or other person conducting the review shall affirm or

modify the amount which would otherwise be the maximum fee.

A-13

"

=

a

es:

a

ot

Any such amount so affirmed or tnodified shall be considered the

amount of the maximum fee which may be recovered under

paragraph (2). The decision of the administrative law judge or

other person conducting the review shall not be subject to further

review.

(4)(A) Subject to subparagraph (B), if the claimant is

determined to be entitled to past-due benefits under this

subchapter and the person representing the claimant is an attor-

ney, the Secretary shall, notwithstanding section 405(i) of this

title, certify for payment out so such past-due benefits (as deter-

mined before any applicable reduction under section 1320a-6(a) of

this title) to such attorney an amount equal to so much of the

maximum fee as does not exceed 25 percent of such past-due

benefits (as determined before any applicable reduction under

section 1320a-6(a) of this title).

(B) The Secretary shall not in any case certify any

amount for payment to the attorney pursuant to this paragraph

before the expiration of the 15-day period referred to in paragraph

(3)(A) or, in the case of any review conducted under paragraph

(3), before the completion of such review.

(5) Any person who shall, with intent to defraud, in any

manner willfully and knowingly deceive, mislead, or threaten any

claimant or prospective claimant or beneficiary under this

subchapter by word, circular, letter or advertisement, or who shall

knowingly charge or collect directly or indirectly any fee in excess

of the maximum fee, or make any agreement directly or indirectly

to charge or collect any fee in excess of the maximum fee, pre-

scribed by the Secretary shall be deemed guilty of a misdemeanor

and, upon conviction thereof, shall for each offense be punished

by a fine not exceeding $500 or by imprisonment not exceeding

one year, or both.

A-14