Opposition Brief — National Taxpayers Union v. Social Security Administration (No. 08-1245)

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Jn the Supreme Court of the Gnited States

NATIONAL TAXPAYERS UNION, PETITIONER

v.

SOCIAL SECURITY ADMINISTRATION,

OFFICE OF THE INSPECTOR GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney Geieral

MARK B. STERN

MATTHEW D. BURTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 314-2217

i

|

QUESTION PRESENTED

Whether the court of appeals correctly held that Sec-

tion 1140(a)(1) of the Social Security Act, 42 U.S.C.

1320b-10(a)(1), which prohibits communications that

deceptively use the term “Social Security” and related

words “in a manner which [the author] knows or should

know would convey, or in a manner which reasonably

could be interpreted or construed as conveying, the false

impression” of endorsement by the Social Security Ad-

ministration, may be applied to petitioner’s conduct con-

sistently with the First Amendment.

TABLE OF CONTENTS

Page

IE RR aa era ere er ]

ay II ae ae l

NF IF SU re a ng ag l

ag ra EE Pa a 7

ee aka s <4 44 8G Can Kew ees 13

TABLE OF AUTHORITIES

Cases:

Furman v. United States, 720 F.2d 263 (2d Cir. 1983) .. 13

Lebron v. Washington Metro. Area Transit Auth.,

ee ae re CP, CP, TE) nc ce ccc cece a sen 1]

Madigan v. Telemarketing Assocs., Ine., 538 U.S. 600

Rath Saget CINE A ery a ti, 32

National Taxpayers Union v. SSA, 376 F.3d 239

(4th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) ....5

Riley v. National Fed’n of the Blind of N.C., Liec.,

ae ee 1]

San Francisco Arts & Athletics, Inc. v. United States

Olympic Comm., 483 U.S. 522 (1987)... 2... 8, 10, 13

Secretary of State v. Joseph H. Munson Co., 467 U.S.

ee Aah en aw ou P56 We RO 11

Taylor v. McKeithen, 407 U.S. 191 (1972) ............. 13

United Seniors Ass'n v. SSA, 423 F.3d 397 (4th Cir.

2005), cert. denied, 547 U.S. 1162 (2006) .... 2,9,10, 11

Village of Schaumburg v. Citizens for a Better Env,

444 U.S. 620 (1980) 7.89.41.

(IIT)

IV

Constitution, statutes and regulation: Page

U.S. Const.:

UIE ey a ona y ce date esd Cena eee erst rea 13

hy, ee ree eer pone arene ner mets ree ri

wa ews oa a oa ee ae sien 7

Medicare Catastrophic Coverage Act of 1988, Pub. L.

No. 100-860, § 428(a), 102 Stat. 815 2.0.2.0... 2 .2004.. 2

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

42 U.S.C. 1320b-10 ($1140) ......... Peer eee 5

12 U.S.C. 13820b-10(a)(1) (§ 1140(a)(1)) 2... passim

ag URE RR 0 6 | a rare a 3

Oy ea Se ie vac bebe dasa seule eee res 3

Social Security Independence and Program Improve-

ments Act of 1994, Pub. L. No. 103-296, § 312,

SUOMI ees rac os tre es ware eee eae

Miscellaneous:

H.R. Rep. No. 7, 103d Cong., Ist Sess. (1993) ...........

Staffs of the Subcomm. on Oversight and the

Subonumn. on Social Security of the House Comm.

on Ways and Means, 102d Cong., 2d Sess. Decep-

tive Solicitations (Comm. Print 1992) ........... 2. a,

t

Jn the Supreme Court of the Anited States

No. O8-1245

NATIONAL TAXPAYERS UNION, PETITIONER

Vv.

SOCIAL SECURITY ADMINISTRATION,

OFFICE OF THE INSPECTOR GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-14a)

is not published in the /'ederal Reporter but is reprinted

in 302 Fed. Appx. 115.

JURISDICTION

The judgment of the court of appeals was entered on

December 11, 2008. A petition for rehearing was denied

on January 9, 2009 (Pet. App. 58a-59a). The petition for

a writ of certiorari was filed on April 7, 2009. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Section 1140(a)(1) of the Social Security Act pro-

hibits a person from “us[ing], in connection with any

item constituting an advertisement, solicitation, ™

(1)

»)

or other communication,” the term “Social Security” or

related words—

in a manner which such person knows or should know

would convey, or in a manner which reasonably could

be interpreted or construed as conveying, the false

impression that such item is approved, endorsed, or

authorized by the Social Security Administration

or that such person has some connection with,

or authorization from, the Social Security Adminis-

tration.

42 U.S.C. 1320b-10(a)(1).' A determination as to wheth-

er a communication comports with these strictures

“shall be made without regard to any inclusion in such

item * * * ofa disclaimer of affiliation with the United

States Government or any particular agency or instru-

mentality thereof.” 42 U.S.C. 1820b-10(a)(8). An entity

that violates Section 1140(a)(1) by sending a mass mail-

ing is subject to a civil monetary penalty “not to exceed”

$5,000 for each piece of offending mail. 42 U.S.C.

1320b-10(b); see 20 C.F.R. 498.103(c).

Congress enacted Section 1140(a)(1) to address its

concern that “the number of mass mailing appeals to

Social Security beneficiaries with inaccurate and mis-

leading information was dramatically increasing.”

United Seniors Ass'n v. SSA, 423 F.3d 397, 399 (4th Cir.

2005) (internal quotation marks omitted), cert. denied,

547 U.S. 1162 (2006); see Staffs of the Subcomm. on

l

Congress originally enacted the provision in 1988 as part of the

Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-360,

§ 428(a), 102 Stat. 815. The law was amended in 1994 to reflect the

Social Security Administration’s newly independent status. See Social

Security Independence and Program Improvements Act of 1994, Pub.

L. No. 103-296, § 312, 108 Stat. 1526.

a+

We

Oversight and the Subcomm. on Social Security of the

House Comm. on Ways and Means, 102d Cong., 2d Sess.,

Deceptive Solicitations 3 (Comm. Print 1992) (1992 Re-

port) (“During the past decade, soliciting senior citizens

by deceptive means has become a big and lucrative busi-

ness.”). Congress found that there was “a proliferation

of marketing techniques designed to give the public the

false impression that they are dealing with a Govern-

ment agency,” and that “[m any of these solicitations are

targeted at the elderly who are particularly vulnerable

to these unscrupulous practices.” H.R. Rep. No. 7, 103d

Cong., Ist Sess. 47 (1993).

In particular, Congress was concerned that “a num-

ber of individuals and organizations have adopted mar-

keting techniques utilizing words, phrases, names, and

symbols which give the public the impression that they

are dealing directly with a Government agency or an

organization endorsed by the Federal Government.”

1992 Report 1. “Such deception potentially interferes

with the ability of the Government to effectively corre-

spond with the public and increases the likelihood that

true Government mailings will be destroyed without

being opened.” /d. at 5.

2. In 2002, the Social Security Administration (SSA)

received a complaint about a mailing by petitioner, a

non-profit corporation that engages in taxpayer advo-

cacy. Pet. App. 2a. Among other things, the envelope

for the mailing declared in underlined capital letters and

in red ink that it contained an “O/"FICIAL NATIONAL

SURVEY ON SOCIAL SECURITY.” Id. at 29a. The

envelope further indicated that the survey, which it de-

scribed as “certified,” had been “commissioned by [peti-

tioner] for the Sociai Security Administration, White

House and Congress of the United States.” Jbid. The

4

envelope instructed recipients (in boldfaced capital let-

ters) to “PLEASE OPEN /JIMMEDIATELY AND

KINDLY RESPOND AS SOON AS POSSIBLE.” /d.

at 3la. It also purported to request from the postmas-

ter “IMMEDIATE DELIVERY * * * IN ACCORD-

ANCE WITH POSTAL REGULATIONS:

DMM300.1.0.”" /bid. No such postal regulation exists.

The text of the mailing identified the recipient by

name and listed specific identifying information about

the recipient. Pet. App. 33a. It stated in red, under-

lined, and capitalized text that “YOUR NAME WAS

SPECIFICALLY CHOSEN to receive this OFFICIAL

SURVEY ON SOCIAL SECURITY” because “you have

a VALID SOCIAL SECURITY NUMBER and live in

one of the QUALIFYING ZONES from which we are

required to select at least ON# participant.” /d. at 33a-

34a. The mailing further indicated that petitioner was

an “authorized sponsor” of the survey. /d. at 36a (em-

phasis added). The mailing closed with an exhortation

to “do your part to help [petitioner] save Social Security

by enclosing your donation.” Jbid.

After making a preliminary determination that the

communication violated Section 1140(a)(1), SSA sent

petitioner a letter asking it to “cease and desist” from

sending any additional communications that appeared to

be authorized or endorsed by SSA. Pet. App. 19a. Pcti-

tioner indicated that it would revise the mailings to re-

move any impression of SSA authorization. 7d. at 19a-

20a. Petitioner then sent out thousands of additional

mailings that omitted the language stating that the sur-

vey was commissioned for SSA, but continued to declare

in red ink and in capital letters that il was an “OF'F'/-

CIAL NATIONAL SURVEY ON SOCIAL SECURITY,”

that it had been “COMMISSIONED BY [PETITION-

ER] FOR THE WHITE HOUSE AND CONGRESS OF

THE UNITED STATES,” and that petitioner was the

“authorized sponsor” of the survey. /d. at 37a, 52a. SSA

concluded that the revised mailing was also misleading

and, accordingly, sent a second cease-and-desist letter.

Id. at 20a.*

Petitioner then sent out a third version of the mail-

ing, Which was materially similar to the second, except

that it also included a disclaimer in capital letters stat-

ing, in part, that petitioner was “LEGALLY RECOG-

NIZED AND REGISTERED AS A NOT FOR PROFIT

ORGANIZATION BY THE UNITED STATES GOV-

ERNMENT” and was “INDEPENDENT FROM SAID

GOVERNMENT.” Pet. App. 39a-40a. This disclaimer

was followed immediately by an assertion that “SAID

OFFICIAL NATIONWIDE POLL ON SOCIAL SECU-

RITY” was commissioned for the President of the

United States and Congress. /d. at 41a.

SSA concluded that this third version of the mailing

was likewise deceptive. Pet. App. 2la. In early May

2005, SSA sent petitioner a letter proposing a civil pen-

alty of $274,582, or 50 cents for each of the more than

500,000 deceptive mailings that petitioner had sent. /d.

at 3a, 21a.

~ Although SSA requested that petitioner provide a written plan to

comply with Section 1140(a)(1), petitioner declined to do so, and instead

filed a pre-enforcement challenge in federal district court. Pet. App.

20a-21a. The district court dismissed the suit on the ground that the

comprehensive adjudicatory scheme established by Section 1140

precluded pre-enforcement challenges. /bid. The Fourth Circuit

affirmed, and this Court denied the petition for a writ of certiorari.

National Taxpayers Union v. SSA, 376 F.3d 239 (2004), cert. denied,

543 U.S. 1146 (2005).

6

3. Following a two-day hearing, an administrative

law judge (ALJ) issued a decision authorizing the impo-

sition of SSA’s proposed penalty. Pet. App. 18a-57a.

The ALJ heard testimony from numerous witnesses,

including recipients of petitioner’s mailings, the copy-

writer who designed the mailings, petitioner’s president

and other officers, and an expert in gerontology and

surveys. Analyzing the text and appearance of the three

mailings in detail, the ALJ found that all three mailings

“use[d] the term ‘Social Security’ as ‘part of an overall

design’ that conveys the impression that the mailer con-

tains an important Social Security document (the sur-

vey) sent on behalf of official government sources.” /d.

at 38a; id. at 3la-43a. The text of each mailing repeat-

edly used prohibited terms in conjunction with language

designed to sound official and to convey the impression

that SSA authorized the survey. /bid. In addition, peti-

tioner’s witnesses stated that they had deliberately used

misleading language and personalized references to the

recipients’ benefits in order to increase the likelihood

that recipients would open the mailings. /d. at 45a-48a.

And despite SSA’s repeated warnings, petitioner made

only “minimal, cosmetic changes” to the mailers that did

not remedy the fundamentally deceptive nature of the

solicitations. /d. at 48a. Accordingly, the ALJ held that

petitioner’s solicitations deceptively conveyed the im-

pression that SSA had authorized the mailings, in viola-

tion of Section 1140(a)(1), and that petitioner knew or

should have known about the misleading effect that its

solicitations conveyed. /d. at 43a-4d4a.

SSA’s Departmental Appeals Board affirmed the

AI.J’s decision in April 2007. Pet. App. da. That deci-

sion hecame final in June 2007, and petitioner sought

review of that decision in the court of appeals. /bid.

4. In an unreported decision, the court of appeals

affirmed SSA’s decision and upheld the monetary pen-

alty. Pet. App. la-l4a. As relevant here, petitioner ar-

gued that Section 1140(a)(1)’s application to petitioner's

conduct violated the First Amendment, on the ground

that Village of Schaumburg v. Citizens for a Better Fn

vironment, 444 U.S. 620 (1980), requires a showing of

intent to defraud before the government may limit

speech. Pet. App. 5a. The court rejected that conten

tion, reasoning that Village of Schaumburg “acknowl-

edged that a direct and substantial limitation on pro-

tected activity is constitutional if it serves a sufficiently

strong subordinating interest.” /bid. (citation and inter-

nal quotation marks omitted). The court found that

Congress has a strong and substantial interest in pro-

tecting Social Security recipients from deceptive prac-

tices like petitioner’s, and in ensuring that such mailings

do not encourage recipients to discard communications

actually sent by SSA. /d. at 5a-6a.”

ARGUMENT

Petitioner renews its contention that Section

1140(a)(1) is unconstitutional as applied to its conduct,

arguing that the court of appeals’ decision conflicts with

Village of Schaumburg v. Citizens for a Better Environ-

ment, 444 U.S. 620 (1980), and subsequent decisions of

this Court. The court of appeals’ decision is correct, and

it does not conflict with any decision of this Court or any

other court of appeals. Further review is not warranted.

The court also rejected petitioner's facial challenge to the statute;

its argument that the monetary penalty violated the Eighth Amend

ment; and its Daubert challenge to the government’s expert witness.

Pet. App. 6a-14a. Petitioner does not renew those contentions before

this Court. See Pet. 8-10; Pet. App. 9a.

lL. Section 1140(a)(1) bars the use of the term “‘So-

cial Security’ * * *

knows or should know would convey, or in a manner

which reasonably could be interpreted or construed as

conveying, the false impression that such item is ap-

proved, endorsed, or authorized by [SSA].” 42 U.S.C.

1320b-10(a)(1). As the court of appeals noted, insofar as

use by charities is concerned, this provision requires

“only that charities refrain from using deceptive lan-

guage when soliciting.” Pet. App. 6a. Private entities

may say whatever they wish about Social Security or

any other topic, so long as they do not use the term “So-

cial Security” and related words “in a manner” that they

know or should know would convey the endorsement of

SSA. Section 1140(a)(1) thus does not prohibit peti-

tioner from disseminating its chosen message, but sim

ply regulates the manner in which petitioner may com

municate.

This Court has previously characterized an analo-

gous prohibition on the unauthorized use of certain

words related to the Olympic Games as a time, place and

manner restriction that may be upheld when tailored to

a substantial government interest. See San Francisco

Arts & Athletics, Inc. v. United States Olympic Comm.,

483 U.S. 522, 536 (1987) (noting that statute applied to

non-commercial speech, but that it “restrictl{ed| only the

manner in which [the speaker] may convey its message,”

not the speaker’s ability to convey its chosen message by

using other words). In addition, even a “direct and sub-

stantial” limitation on charitable solicitation is valid if it

in a manner which [the author]

‘

serves a “sufficiently strong, subordinating interest.”

Village of Schaumburg, 444 U.S. at 636.

The court of appeals correctly concluded that “the

government has a substantial interest in protecting So-

9

cial Security recipients from deceptive mailings” like

petitioner’s. Pet. App. 5a-6a (citing Vzllage of Schaum-

burg, 444 U.S. at 636, which stated that protecting the

public from deception is a “substantial” interest). Sec-

tion 1140(a)(1) is designed to protect the line of commu-

nication between SSA and Social Security beneficiaries,

and to “ensure that when the SSA sends legitimate mail

to beneficiaries, the recipients will open it and not per-

ceive it as ‘junk mail.’” /d7d. (characterizing that inter-

est as “strong [and] subordinating”). When Social Secu-

rity recipients are bombarded with deceptive mailings,

there is an “increase[d] * * * likelihood that true Gov-

ernment mailings will be destroyed without being

opened,” 1992 Report 5, and that recipients who do open

government mailings will be uncertain as to their legiti-

macy. In addition, because SSA is the recipient of confi-

dential and sensitive information, it is critical that indi-

viduals participating in the program feel absolutely se-

cure in their dealings with the Agency. Deceptive com-

munications threaten to dampen that confidence. See

United Seniors Ass’n v. SSA, 423 F.3d 397, 407 (4th Cir.

2005) (government has an “overriding” interest in pre-

venling deceptive mailings targeting Social Security

recipients), cert. denied, 547 U.S. 1162 (2006).

Petitioner’s solicitations contain precisely the sort of

misleading invocation of the term “Social Security” that

Congress determined would harm SSA’s relationship

with Social Security recipients. The ALJ found that the

mailings “were fraught with deliberately ambiguous and

deceptive language” that petitioner knew or should have

known conveyed the impression not only that peti-

tioner’s survey was authorized by SSA, Pet. App. 34a,

43a, but that petitioner had obtained confidential infor-

mation about mailing recipients from SSA, zb7d., and

10

that failure to return the survey could adversely affect

recipients’ benefits, 7d. at 42a. The ALJ also concluded

that petitioner is “an experienced mass marketer of

ideas that knew exactly what it was doing when it de-

signed the mailers,” id. at 45a, and that it “deliberately

employed pretected language to induce recipients to

open its mailers and to respond,” 7d. at 50a. The ALJ’s

findings were based on the testimony of recipients of the

solicitations, as well as the mailings’ creator, who admit-

ted to deliberately using Social Security-related terms

in order to increase the chance that the mailings would

be opened. /d. at 45a-48a.

Petitioner does not contest these findings, which

demonstrate beyond doubt that the government has an

overriding interest in preventing the harm arising from

petitioner’s deceptive mailings. SSA’s application of

Section 1140(a)(1) to petitioner’s deceptive conduct di-

rectly supports the government’s strong interests, and

therefore does not infringe on legitimate First Amend-

ment concerns. See United Seniors Ass’n, 423 F.3d at

407 (“[O]ne whose message is so deceptive and mislead-

ing that he should have known that the message con-

veyed the false impression of governmental endorse-

ment” is “not entitled to First Amendment protection.”);

see also San F'rancisco Arts & Athletics, 483 U.S. at 539

(recognizing, in rejecting First Amendment claim, sub-

stantial public interest in preventing confusion in use of

word “Olympies”).*

* Amicus Free Speech Defense and Education Fund (FSDEF)

contends (Br. 19-22) that the second prong of Section 1140(a)(1), which

prohibits using the listed terms “in a manner which reasonably could be

interpreted or construed” as conveying SSA’s endorsement, has no

meaningful limit. To the contrary, Section 1140(a)(1)’s use of an objec-

tive reasonableness standard cabins the reach of the statute. See

11

2. Petitioner contends (Pet. 8-10; see Amicus Br. 12-

18) that Village of Schaumburg, 444 U.S. 620 (1980), and

Madigan v. Telemarketing Associates, Inc., 538 U.S

600 (2003), permit the government to regulate only those

charitable solicitations that involve “actual fraud.” The

only other court of appeals to consider that argument

rejected it, see United Seniors Ass'n, 423 F.3d at 407,

and in any event, petitioner's argument is meritless.

In Village of Schaumburg and its progeny, this Court

applied its “strong, subordinating interest” test, 444

U.S. at 636, to invalidate a series of “prophylactic stat-

utes designed to combat fraud by imposing prior re-

straints on solicitation when fundraising fees exceeded

a specified reasonable level.” Telemarketing Assocs.,

538 U.S. at 612. The Court did not suggest that only

solicitations involving actual fraud may constitutionally

be prohibited; rather, the Court simply invalidated the

blanket prohibitions at issue in those cases because they

were not adequately tailored to the government’s inter-

est in preventing fraud. J/d. at 615; see Riley v. Na-

tional Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 789

(1988) (“{U]sing percentages * * * is not narrowly

tailored to the State’s interest in preventing fraud.”);

Secretary of State v. Joseph H. Munson Co., 467 U.S.

947, 966 (1984) (statute “operate|d] on a fundamentally

United Seniors Ass’n, 423 F.3d at 407-498; Lebron v. Washington

Metro. Area Transit Auth., 749 F.2d 893, 897 n.8 (D.C. Cir. 1984)

(discussing reasonableness standard in the libel context). The fact

that the burden is on the government to prove a violation, Pet. App.

26a, provides further protection. See Madigan v. Telemarketing

Assocs., /ne., 538 U.S. 600, 620 (2003). In any event, the ALJ found, and

petitioner does not contest, that petitioner knew or should have known

that its mailings were deceptive within the meaning of Section

1140(a)(1)’s first prong.

12

mistaken premise that high solicitation costs are an ac-

curate measure of fraud”); Village of Schaumburg, 444

U.S. at 636 (requirement that charities use at least 75%

of their donations for charitable purposes served the gov-

ernment’s interest “only peripherally”).

Nor does Telemarketing Associates hold or suggest

that the government may not target “representations

made in individual cases,” 538 U.S. at 617, unless those

representations are made with fraudulent intent. The

only question at issue in Telemarketing Associates was

whether Village of Schaumburg “rule[d] out, as support-

ive of a fraud claim [brought by the Illinois Attorney

General] against fundraisers, any and all reliance on the

percentage of charitable donations fundraisers retain for

themselves.” /d. at 606. In upholding the State’s com-

plaint, the Court emphasized that the State’s fraud claim

was not based solely on the percentage of donations kept

by the fundraiser, which would be impermissible, but

instead was founded on allegations of specific knowing

misrepresentations. /d. at 618. The Court did not con-

sider the government’s ability to prohibit deceptive so-

licitation where it need not rely on the percentage of

donated funds retained, and the Court also noted that it

‘vonfine[d] * * * consideration to the complaint in this

case, which alleged” knowledge of falsity. Jd. at 621

n.10.

Telemarketing Associates and the Village of

Schaumburg line of cases thus do not suggest that the

government can regulate a non-profit organization only

by prohibiting actual fraud. See United Seniors Ass'n,

423 F.3d at 407. Moreover, under San Francisco Arts

& Athletics, the government has a distinct and substan-

tial interest in preventing confusion regarding sugges-

tions of endorsement by or connections with the govern-

13

ment in communications regarding the Social Security

program. 483 U.S. at 539-540. In declining to require a

showing of fraudulent intent, Pet. App. 5a, the court of

appeals did not contravene any decision of this Court,

and further review is not warranted.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

MARK B. STERN

MATTHEW D. BURTON

Attorneys

AUGUST 2009

» Amicus FSDEF raises an additional argument not within the

question presented (Br. 22-26), namely, that the court of appeals’ use

of an unpublished decision to dispose of this case violated Article ITT.

That contention is meritless. The fact that a case is disposed of without

a formal published opinion “in no way indicates that less than adequate

consideration has heen given to the claims raised in the appeal.”

Furman v. United States, 720 F.2d 263, 265 (2d Cir. 1983) (per curiam);

see Taylor v. McKeithen, 407 U.S. 191, 194 n.4 (1972) (per curiam)

(courts of appeals “have wide latitude in their decisions of whether or

how to write opinions”).