Appendix — Hopkins v. Cohen

-

- ordered to pay to the plaintiff the total amount ;

of back payments of $254.00 per. month, begin-

ning with and including January 1963, allowing

for any increases or decreases: provided for by” |

the Social Security Act, and monthly payments ~

‘

in the future at the same rate provided -by law

until such.time as the plaintiff. is found not to be

entitled to such payments under the law.

SE). Eschbach: J (Copies to:. Allen Sharp; :

.W. Moellering) |

Defendant files letter referred to as an exhibit

‘in his petition, filed 1-10-68, re: accrued benefits

and approval of attorney fees, along with explan-

atory letter of transmittal. .

Order entered re: “Attorney Fees. (SE) Esch-

bach: J (Copy to Allen.Sharp and U.S. Attorney)

Plaintiff files Notice of Appeal, together with

cert. of service.

_- Act.

d

In rue Unirep States District Court

- Norruern District or INDIANA.

Hammonp Division AT Larayerre .

- Civil No. 282

’ Raymonp Hopkins, Plaintiff,

maltees'!*

_ AxtHowy. J. Ceesrezze, Secretary of Health, Education

and Welfare, Defendant.”

‘NV

~

Comp.aint in Action To. Set Asipe ‘Decision |

Unver Sociat Securiry Act—Filed July 2, 1964 |

Jurisdiction of this Court is sought under the provisions.

of Title 42, Section 405(g¢), United States Code (42 U.S.C.A. <

§405(g)) and constitutes an appeal from the decision of —

- the Hearing Examiner of the United States Department

of Health, Education and Welfare; Social Security Admin-

istration, ‘holding that plaintiff is not totally and perma-

nently disabled within the - ovision of the Social Security

I

‘This action is commenced within sixty days from the

date that plaintiff was notified by the Department of

Health, Education and Welfare,.in the case of Raymond

Hopkins, : Claimant and Wage Earner, Social Security

Account No. 305-05-2662, inclosing. copy of Appeals Coun-

cil’s denial of his request for. review of the Referee’s deci-

sion. on plaintiff’s claim for a period of disability; said

*

6

notice from. said a hirman being dated May 6, 1964, in

which plaintiff @as> informed that his review of the Hear-

ing Examiner’s decisign was denied and stands as the final —

administrative decision on his claim. =

“nn

Plaintiff alleges that he has exhausted all of his admin-

istrative remedies prior to the filing of this appeal. :

| ; IV |

_ Plaintiff’s denial of request for review to the Office of . -

Appeals Council, Department of Health, Education and

Welfare was styled: Raymond Hopkins, Claimant and

Wage Earner, Social Security Account No. 305-05-2662,

Claim for Period of Disability and denial of request for

review of hearing examiner, Jack G. Graham, dated No-

vember 27, 1963. The denial of request was. dated May 6,

1964. }

: Vv.

This action is instituted in the District Court of Northern

District of Indiana in which the plaintiff resides. The

plaintiff resides at RR #2, Williamsport, Warren County, °

State of Indiana, which is in Warren County, Indiane.

The findings of fact by the Hearing Examiner. and Ap--

peals Council are not supported by substantial evidence.

‘The findings of fact by said hearing examiner and ap-

peals council are contrary to law. PDP

The conclusions of hearing ‘examiner and appeals coun-

cil are contrary to the facts. :

Vil

* The plaintiff is totally and permanently disabled as a

result of: a z

1. Gastritis and possible gastric ulcer.

-2.- Duodenal diverticulum. .

3. Incisional hernia. .

Wherefore, the plaintiff prays for review of the admin--

istrative determinatioris herein or in the alternative for

the remand of this case for further consideration and

review, and for all other proper relief in the premises. ;

/s/ ALLEN SHarP i

Allen Sharp, Attorney at Law

' + Williamsport, Indiana

: ‘Telephone 762-3442

Attorney for Plaintiff

&

In THE UNITED STATES District Court

For the Northern District of Indiana, |

Hammond Division at Lafayette.

‘ Raymond Hopkins, : }

ea A , ‘ ~ Plaintiff,

vs. ytps,

Anthony J * Celebrezze, Secretary

of Health, Education, and Wel-.|. .

fare,

i: Lafayette —

Civil No. 282.

Defendant. 7

OnpER AND MrMmoraxDUM or Dectsion—September 30, 1965

- This matter is now before the court for disposition on

_ ¢ross motions for summary judgment filed by the defendant -

~ April 26, 1965, and by the plaintiff.May 6, 1965. Judgment

must be entered in favor of..the plaintiff. ie

. This action is an appeal to review the determination of

the Hearing Examiner, acting under the authority of the

Secretary of Health, Education, and Welfare, that the

plaintiff’s disability insurance benefits were properly dis-

continued as of December 31, 1962, under the Social Secur-.

ity Act, 42 U.S. C. $425. Review in this court, authorized

by 42 U. S. C. § 405(g), is limited to questions of law *

involved in the Secretary Ss determination and to a con-

9

. sideration of whether the Secretary’s findings of fact are

supported by substantial evidence in the record.

The plaintiff, an operator of power cranes and drag lines,

was granted disability insurance benefits under thé Social

Security Act after he became unable to work on August

26, 1960 at the age of 52. The benefits became effective as

of March 1961 and were terminated as of December 1962

’ on a determination by the Secretary that plaintiff was no

longer ‘‘disabled’’ under the provisions of the Act. The

termination of benefits was affirmed upon reconsideration.

The plaintiff requested a hearing, which was held October

9, 1963. The Hearing Examiner affirmed the prior deter-

mination and the Appeals Council _denied_plaintiff*s re- .

quest for. review. on May 6, 1964. - This timely appeal is

taken from determination of the Hearing Examiner, which

_is also the final decision of. the ——- of Health, Educa-

tion.and Welfare.

The crucial question on review , by this court is “whether

| there is substantial evidence to support.the finding that

plaintiff’s. disability has ended. ‘‘Disability”’ is defined

_ by the Act as ‘‘inability to engage in any substantial gainful

activity by reason. of any medically ee physical

« impairment: which can be expected . . . to be of long-

ocstinned and indefinite duration.’’ 42 U. S, C. § 423(c) (2).

Judge Friendly, writing for the court in Kerner v. Flem-. .

ming, 283 F. 2d 916, 921 (2d -Cir. 1960), stated the issues

involved in-a determination of disability under this section :

‘‘Such a determination requires resolution of two

issues—what can applicant do, and what employment —

opportunities are there for a man who can do only

what applicant do? Mere theoretical ability to engage

in substantial gainful activity is not enough if no

_ reasonable opportunity fdr this is available.

In reversing the district court’s affirmance of the Secre- et

tary’s determination in a case similar to the instant case, -

SAE ERT

.

“10

Judge Brown, writing for the court in Butler v. Flemming,

- 988 F. 2d 591, 595 (5th Cir. 1961), stated that the test. of

‘availability of employment within the applicant’s compe-

tence ‘was whether the evidence on the record contained

‘any indication of any specific work less exacting (than the —

work from which he is now foreclosed) within his residual

competency and reasonably available as a prospective

source of employment in the general area where he lives.”’

_ The exhibits at the hearing in the instant case included =

-reports and letters from five. doctors who had examined , ;

the plaintiff. The reports of two of the doctors were pre- {

_ sented to the Department of Health, Education, and Wel-

fare before the plaintiff was declared to.be disabled and

were the reports of the doctors who were treating the plain-

tiff as a patient.-*The reports of the other three doctors _

were presented after the original award and were made by

doctors solely for the: purpose of ascertaining whether or

not the plaintiff’s disability continued. These reports

establish that the plaintiff became disabled by reason of.

a ventral hernia resulting from a gall bladder operation.

Four attempts were made to’ repair the hernia, which ‘is

about the size of a human fist. An examination in Febru-

aty 1963 revealed that it exuded a ‘‘serum”’ that was appar-

ently of superficial origin. In December 1963, Dr. Nelson

stated that further attempts to repair the hernia would |

probably be futile and that improvement was unlikely. The -

Plaintiff has other physical difficulties, including almost

eomplete blindness in- his left eye. 5 :

The plaintiff has worked asa power crane or drag Jine

operator in strip mines all his life except at one earlier

- time when he did some farm work. Plaintiff’s testimony

that he is unable to do farm work in his present condition

+s uncontradicted in the record. He has a seventh grade }

education and ean read, write, and do simple arithmetic,

although plaintiff testified he is not very good at arith-

ll

_ Metic.. Joseph Ganns, a vocational rehabilitation expert,

. testified at the hearing that -the plaintiff is ‘“limited’ in:

- transfer of skills.’?~ 4 |

! __While the general burden of proving disability is upon

the applicant, he is not required to ‘‘go down the list and

verbally negative his capacity for cach (industrial occupa-

tion) or their availability to him as an actual opportunity

for employment.’’ Butler v..Flemming, supra, at 595. ‘The

record in the instant case contains evidence of the possi-

bility of plaintiff finding employment in only three job

areas. This does not include“farming, which the record ;

indicates without contradiction is. not within applicant’s -

competency. The plaintiff, according to Mr. Gann’s evalua-

tion, might be able to work as a truck driver or, if the

medical conelusions of Dr. Levin are correct, at his former

job as a crane operator if the lever controls are powered

by more modern methods of electricity or air. The Hearing

' Hxaminer seemed to consider that plaintiff might also: be.

able to drive a taxi, although Mr. Ganns declined to endorse

’ that proposition. ? ee :

Mr. Ganns’ testimony that plaintiff might be able to

drive a truck is not based on plaintiff’s physical capabili-

ties, but on a study of the transferability of skills of a°

person who has formerly been a ‘crane operator. There is

no evidence in the record that plaintiff is physically capable .

_of driving a truck or a taxi. Likewise, there is no evidence

that any. such employment opportunities are reaso bly

availableto a person with an unrepairable hernia as serious

as that suffered by this plaintiff. Such jobs are generally

accompanied by the lifting of the truck’s cargo or the’

luggage of taxi passengers, the opening of taxi doors that

requires much awkward reaching, and other physical exer-

tions beyond the competency of this plaintiff. The Hearing

Examiner cannot stretch inferences so far that évidence

of transferability of skills can support a conclusion of |

12

physical competency. . There was no evidence that a trans-

ferability of skills exists from operating a crane to driving

a taxi.

Nor ‘is this court favorably viiebeiiial | to put it mildly,

with the reasonableness of suggesting that a man who is

. blind in one eye should be asked, ‘or even allowed, to seek

employment as a truck driver or a taxi driver. . There

certainly is no evidence in this record to indicate that such

a man is reasonably likely to find an employer willing to

- hire him as a truck or taxi driver. The vision requirements

for obtaining a public passenger thauffeur’s license from

—the State of Indiana almost certainly could not be met by

a one-eyed man. The court finds that there is no evidence .

. whatsoever to support the Hearing Examiner’s finding that

plaintiff has any practical coisa to find’ employment

driving a truck or a taxi.

: If the Hearing Examiner’s determination is to stand

it must rest on the reasonable availability to the’ plaintiff

_of employment in his former-line of work. The Examiner’s

conclusion that such employment is available and within

~ plaintiff’s competency must rest upon the reports of Dr.

Stanley Levin, an expert in internal medicine, and upon

’ * the testimony ‘of Mr. Ganns. The record contains no other

- | evidence to support such a conclusion. y

It is significant that Dr. Levin nowhere ‘states in his

reports that plaintiff is capable of engaging jin his former.

regular work. He does say it is his opinion that plaintiff.

can operate .a crane, but = ‘if heavy exertion is not

required to move the levers.’? The only evidence on. the

amount of exertion required is plaintiff’s statement that .

pullfhg levers on a crane involved much more physical

effort than shifting gears in a ‘car, and the testimony of”

Mr. Ganns that operating levers in a ‘‘modern’’ crane_

required no more than fifteen pounds of arm pressure.

The fact that plaintiff can n operate an automobile gear shift”

’

Pe

; : a . :

Se h-e +

* [4

—_—

for short trips to town: and back, or even that he’i is capable

of pushing and pulling .the levers on a ‘“‘modern” crane

does not support a finding that he can operate a crane.

There is no evidence in the record. indicating the capacity

‘of plaintiff ’*s arm pressure unless it is Dr. Levin’s report

that plaintiff cannot lift anything weighing more than five

or six pounds. There is no evidence that Dr. Levin had -

ever moved the lever of a power crane or knew how much

_ pressure was required to ‘thove one, and his opinion that

plaintiff should be able to ‘‘operate levers’’ is not a sub-

_ stantial basis for the Examiner’s conclusion that plaintiff

was physically capable of operating the levers of a power

crane as a full-time occupation. ‘‘Satisfaction of the claim-

ant’s statutory obligation to show that he is not able to do

any substantial work is to be judged i in a practical way.’’

Rathf v. Celebrezze, 338 F. 2d 978, 983 (6th Cir. 1964);

Kerner v. Flemming, supra. The test for determining an

applicant’ s competency and the availability of work, as

' stated by Judge Sobeloff, requires that the availability and

the nature of the work be judged ‘‘in the light of what is

reasonable and not of what ~is merely: conceivable.’’ -

Thomas v. Celebrezze, 331 F. 2d 541, 546 (4th Cir. 1964).

On this record there is\no evidence that plaintiff can

reasonably work a power shovel on a full-tifMe basis, or

that there is any practical likelihood that he could find an

employer willing to hire someone with all of plaintiff’s

physical limitations.

Dr. Levin reported that plaintiff ‘‘will not be able to do :

any bending Seyond that ordinarily associated with seden-

tary occupation.’? The Examiner himself conceded at the

hearing that a crane operator has to do some bending.

Plaintiff’s testimony is unchallenged that the lifting of

_ ables is sometimes involved and that there are times when

a crane operator may have to climb around on the machine

to do repair work. Such activities are admittedly beyond

w

: ein

| plaintiff ’s physical competency. Dr. Levin reported that

plaintiff could not do climbing ‘‘which would require a

moderate amount of strain,’’ The Hearing Examiner sug-

gested that plaintiff could use a ladder to climb the eight aes

feet up to the crane.once in the morning, and’ down again

_ at night, as. a means of circumventing plaintiff’s lack of

ability. to climb onto the crane-in the ordinary way.

Neither the plaintiff nor Mr. Ganns had any idea whether

‘ah employer would object to the inconvenience that. woyld

be caused by such a method. Plaintiff agreed that he might

be able to work levers and that he could climb up and down |

the proposed ladder once a day, but protested that there

was much more to the job than those two operations. His |

testimony about the nature and details of the work is un-

challenged throughout the entire record. .A work activity

report filed by a claimg representative for the Secretary,

and which is one of the exhibits in the record, describes

plaintiff’s inability to lift anything or to be ‘‘climbing

around shovel and rig”’ as factors that have an effect on

the quality of plaintiff’s work as a crane operator. The

_same report stated that plaintiff ‘‘had to use hands and

feet to control levers and operate shovels (diesel and com-

pressed air) for controls and brakes.’’ Mr. Ganns’ testi-

mony that plaintiff could ‘‘probably’’ operate the levers on

‘‘modern cranes’? and climb up and down once a day and —

that plaintiff’s ability to operate the levers depended on. .

the body position is too speculative to support a finding

that the plaintiff could reasonably and practically find and

engage in work of this nature in view of his physical limi-

tations. ‘‘There must be something more tangible estab-

lishing what employment opportunities there are for a man

with his impairment.’’ Stancavage v. Celebrezze, 323 F.

2d 373, 378 (3d-Cir. 1963). ‘A theoretical ability to so

* engage is not enough if no reasonable opportunity is avail-

able.’’ Celebrezze v. Warren, 339 F. 2d 833 (10th Cir.

1964).

i ame | am = 15

“The Hearing ‘Examiner’s question about the number ‘of

existing jobs for crane operators, directed to Mr. Ganns,

-- was deliberately phrased to exclude ‘any inquiry as to the

practical availability of employment of crane operators in *

the construction industry for men with plaintiff’s physical

limitations. Mr. Ganns’ answer; ‘‘Oh, yes, a lot of con-

struction work is going-on,’’ casts no light on the avail-

ability of job opportunities for this’ plaintiff. ‘‘Since the

abstract ‘average’ man is not the standard to be used,

* Pearman v. Ribicoff, 307 F. 2d 573 (4th-Cir. 1962), there

must be evidence to show the reasonable availability of

jobs which this particular claimant is capable of perform-

ing.’’ Cyrus v. Celebrezze, 341 F. 2d. 192, 196-197 (4th Cir.

; 1965) ; Ray v. Celebreeze, 340 F. 2d 556 (4th Cir. 1965).-

The evaluation by Judge Sobeloff of a case similar to the

instant case is applicable here:

‘“Bmployers are concerned with substantial capacity,

psychological stability, and steady attendance; they

will not unduly risk increasing their health and lia-

bility insurance costs. It.is unrealistic. to think that —

they. would hire anyone with the impairment of: this

claimant.’’ Thomas v. Celebrezze, supra at 546.

Plaintiff urges that the rejection of plaintiff’s applica-

tion for vocational rehabilitation by the Bureau of Old-Age

and Survivors Insurance}, the: same bureau which termin-

ated his disability benefits, should bind the Secretary in

his determination of plaintiff’s disability. The rejection

was based on a determination by the Indiana Vocational

- Rehabilitation Division ‘on March 28, 1963 that plaintiff’s- ,

‘‘impairment.(was) too severe.’’ ‘This court does not need

to reach that point in view of the findings above. The situ- :

ation, however, poignantly illustrates the dilemma of a

person considered by the same agenty of government to be

too disabled to learn a new job, yet not disabled enough to

be entitled to his Social Security insurance benefits.

16 | fat = ‘ *

the record to support the Secretary’s finding that plain-

> tiff’s disability terminated as of December, 1962. There is

. abundant evidence in the record to establish that plaintiff

is disabled within the meaning of the Act and the cases,

* even if such a conclusion were based solely on the reports -

and testimony upon which the Secretary sought to base his —

contrary conclusion. There’ is no apparent reason to re-

take testimony, and no such request has been made. The

litigation has already consumed’ more than two and one-

half. years since plaintiff’s benefits were terminated. Cyrus

v. Celebrezze, supra; Ratliff v. Celebrezze, supra. . *

_ The decision of the Secretary of Health, Education, and

Welfare terminating plaintiff’s disability benefits ‘as of

December, 1962 is reversed. The Secretary is ordered to

allow and pay disability benefits to the plaintiff from the

time of their termination until such time as a new de-

termination is made that plaintiff’s disability has, in fact,

‘terminated. The period of disability must include: at least

the period until the date of the hearing from which this

- appeal is taken. bis

Entered this 30th day of September, 1965.

Jesse E. Escusacs,

United States District Judge.

This court finds that there is no substantial evidence in.

mand the casé or give the Secretary further opportunity to _

eA tha ox Canin cei he athe Da CctanT s:

i" . - °

’ [y tHe Unitep Statrs District Court.

Perrrion. TO DETERMINE ACCRUED Brwerrts anp PEtrrion FoR

APPROVAL OF AGREEMENT FOR ATTORNEY Frrs—Filed

January 10, 1966

Raymond Hopkins, being first duly sworn upon his oath,

respectfully represents. to the Court as follows:

1. That heretofore on the, 30th day. of September, 1965,

this Qourt entered its judgment in this case which. judgment |

is hereby incorporated herein by reference.

The Court’s particular attention is now directed ‘to the

following sentence of the Court's judgment, to-wit:

“The Secretary is ordered to allow and pay dis-

ability. benefits to the Plaintiff from the time of their

termination until such time as a new determination is

made that the Plaintiff’s disability has, in fact, termi-

nated.”

2. That a notice of pre ae was filed by the Defendant

in this case on or about the.26th day of November, 1965,

which notice of appeal was @ismissed by the order of this

Court on the 30th day of ember, 1965.

'3. That as shown at page 85 of the transcript orig-

inally filed inthis cause at ‘the time said benefits were -

terminated on the 31st day of December, 1962, Raymond

Hopkins. and. Verna B. Hopkins, his.wite, were receiving

a montlily benefit in. the sum of One Hundred Sixty-One

‘Dollars and Forty Cents ($161.40) and there was an addi-

tional sum of $92.80 ‘payable for the minor children .of

Raymond Hopkins and Verna B. Hopkins. That the total

henefits paid and payable atthe said time were Two Hun-

dred Fifty four Dollars ($254.00) per month, That as

18°

shown by said determination of award at page 85 of said

transcript, which determination was dated September 13,

1961 and approved September 14, 1961, the primary

amount’ was in the sum of One Hundred Fifteen Dollars

($115.00). That effective January 1, 1965 there was a

seven per cent (7%): increase in said benefits and the

primary amount in this case would have been adjusted

to’ approximately One Hundred Twenty-three Dollars

($123.00). hat on the basis of the above and foregoing

determination it is believed by. the undersigned. that be-

tween January 1, 1963 and the present time the under-

signed claimant would be entitled to at least thirty-six. —

(36) months of benefits at Two Hundred Fifty-four Dol- ©

lars ($254.00) per month or a total of Nine Thousand One

Hundred Forty-four Dollars ($9,144.00). In addition to

this there would be a seven per cent (7%) increase for

_ benefits accruing after January 1, 1965.

4. That-on'this 6th day of January, 1966, the Attorney

for the undersigned claimant, namely, AllengSharp, Wil-

liamsport, Indiana, conferred with the Deputy United

States Attorney for the Northern District of Indiana,

namely, Mr. Joseph F. Eichhorn, with ,reference to the

-* mount of accrued unpaid and ‘past due benefits payable

pursuant to the order and judgment of this Court entered

September 30, 1965. Said Mr. Joseph -F. Eichhorn related

to said Allen Sharp that on the basis of a communication

_ from the office of the Attorney General of the United States

that. the Defendant Secretary of Health, Educatjon and

Welfare would pay the sum of Three. Thousand Seven

Hundred Forty-four Dollars and Eighty Cents ($3,744.80)

as accrued past due and unpaid benefits in this case.

That in the month of December, 1965, representatives of

the Defendant Seeretary of Health, Education and Wel-

fare, Social Security Administration Office, Danville, Ili-

- nois, requested of the undersigned claimant certain infor-

mation with reference to his income and his condition since

January 1, 1963. :That the undersigned provided all re-

quested information. That in substance the information

PB a isnsiscrccecacitice.. : Biliaie inet Be ti Pia iytn lew ESD eo

. : a . re

.

e { . .

provided was to the effect’ that since January 1, 1963 the.

undersigned has earned*no income and that his wife has

earned no income and that his minor children have earned

no income and that his physical situation with reference

' to disability has remained the same.

That’ the indicated determination of unpaid and accrued

benefits by the Defendant Secretary of Health, Mduéation

and Welfare is not consistent with the order and judgment

of this Court heretofore entered herein. That the Defen-:

dant Secretary should be ordered to pay disability benefits

from January 1, 1963 until the. present time. That there

has not been a new determination that the Plaintiff’s. dis-

ability has, in.fact, been terminated.

5. That at the time the undersigned Plaintiff engaged |

the legal services of Allen Sharp a written contract and -

agreement with reference to said services. was entered

into, the same being dated May 12, 1964, a copy of which

agreement is attached hereto and incorporated herein by —

reference. That prior to the preparation and execution of

said agreement the said Alen Sharp carefully examined

certain court decisions with reference to attorney fees in

such proceedings as these. In particular he examined the.

ease of Sheppard v.' Flemming, 189 F. Supp. 571; and

Sparks v. Celebrezzc, 228 F. Supp. 508. That this agree-

ment was entered ‘into and signed openly. and freely. by

both parties prior to the enactment and effective date. of

Public Law 89-97, the effective date of which was July |

30, 1965. Said Public Law 89-97 is found in Title 42,

United States Code Annotated; 1965 Cumulative Annual

Pocket Part at Section 406(b) (1).

That pursuant to said employment agreement said Allen

Sharp has rendered efficient and faithful service, has ad-

vanced the suns for filing fee and other costs in this action,

has made numerous trips to "Lafayette, Indiana, has made -

numerous. long distance calls to. both the Social Seeurity

Administration Office in Danville, Hlinois, to the Clerk

of the U. S. District Court at Lafayatte, Indiana and to

oo oe oe:

2

—

the office of the United States Attarney in Fort Wayne,

Indiana. That said Attorney has carefully examined the

transcript in this case, has prepared: numerous and exten-

sive memorandum of law in this case, has spent many days"

in research in preparing memoranda and briefs. That

subsequent to the filing of the notice of appeal by the De-

. fendant in this case on November 26, 1965, said attorney

spent one full day in the Library of the Chicago Bar Asso-

ciation examining briefs and records of appeal and other

- similar cases. That the undersigned believes that said .

fee agreement was fair at the time it.was entered into and

believes that it is fair now. That the undersigned prays

_ the Court.for an order approving said fee agreement.

Wherefore, the undersigned prays the Court for an order

determining the amount-of unpaid accrued disability bene- -

fits pursuant to the judgment -and order of this Court

‘entered September 30, 1965 and approving the agreement

for employment and attorney fees entered into on the 12th

day of May, 1964: . eisee"

/s/ Raymond Hopkins.

hed if Pe hana

Clee V0 a All IID StL i ice 0 Ah my 00

3 Ol iS ta

‘

CMA nae Saavik Dain RS ts

EOC

IG HBP AIS II Me ew

® .

21

MEMORANDUM. - —

-- The record speaks for itself with reference to the deter-

mination of benefits payable under the Court’s order.

With reference to the matters of attorney fees the under-

signed Attorney carefully examined the decisions with

reference to the same at the time the employment agree- |

ment was entered into. At that time the court decisions

were to the effect that a contingent fee contract could be

entered into with refererice to disability proceedings in—

United States District Courts. vias eee

. There was no regulation as to the amount of fees at -

that time. In fact, in the case of Sheppard v. Flemming,

189 F. Supp. 571, which is cited with approval in ’Cistalle.

‘v.* Secretary of Health, Education and Welfare, 238 F.

Supp. 340 (1965) Western -District: of Louisiana, a con-

tingent fee contract similar to the present one was ap-

. proved. The undersigned attorney does not intend to vio- -

' late the provisions of Public Law 89-97 which was effective

‘July 30, 1965. Therefore, we desire the matter of attorney

fees to be completely before the ‘Court and would request

the Court to approve the agreement of the parties if the

‘Court is persuaded, as we are, that the limitation placed

in Public Law 89-97 does not apply to an agreement made

_in good faith and openly and in aceord-with court decisions

_ prior to the effective date of that Aét.

-

Certainly we will abide any decision the Court makes in

this regard.

We are also prepared to submit expert evidence to the

Court with reference to the reasonable value of. attorney ©

fees should the Court desire to receive the same.

Respectfully submitted,

/s/ Allen Sharp.

Certificate of Service.

The undersigned certifies that on this 7th day of Jan-

uary, 1966, he deposited in the United States Mail at’

Wiltiamsport, Indiana, postpage prepaid, a copy of the

above and foregoing document properly addressed to Jo-

seph F. Eichhorn, United States Attorney, Fort Wayne,

Indiana. | | .

| _ /s/ Allen Sharp,

Attorney at Law,

Williamsport, Indiana, —

Attorney for Plaintiff.

State of Indiana, 2 |

County of Warren, ss.

| The above Petition was subscribed and sworn to before

me, a Notary Public in and for said County and State, on

this 7th day of January, ‘1966.

(Seal) Notary Public.

My Commission Expires April 9, 1966.

- J/s/ Allen Sharp,- nis”

Bes Dh tae i

Pi CaS Da a RUS LR CTS OME Ve

bites b Rapa SRA C2

°

ATTACHMENT TO PETITION. 23

" AGREEMENT FOR EMPLOYMENT—May 12, 1964. |

‘This memorandum of agreement made and entered

into between Raymond Hopkins and Verna B. Hopkins, hus- -~

band and wife, of Warren County, Indiana, First Parties,

and Allen Sharp of Williamsport, indians, Second Party, |

- Witnesseth that

Whereas the first party Reayncnd Hopkins has a dis-

ability claim now pending with the Social Security Adminis-

tration and desires to pursue the same in court,

Whereas, Allen Sharp ) is an Attorney at Law, duly

licensed to practice law in the State of Indiana,

. Now, Therefore, it is agreed between the parties hereto

.as follows:

_ 1. That the First Parties agree to employ the Sead

Party as Attorney to ptsue this-claim in the United States

District Court and the United States Court of Appeals, if ,

necessary. Said Attorney shall be _ compensated on the

following basis?

a. In the event-an award is awarded by decision of the

_ United States District Court the Second Party shall be paid

an amount equal to forty per cent .(40%) of the benefits

accrued from January 1, 1963 to the date of said award: —

b. In event it is necessary to appeal to the United States

Court of Appeals, said Second Party shall be paid an

amount equal to fifty per cent (50%) of the benefits from

J ge 1, 1963 to the date of said award.

That the Second Party agrees to use his best profes-

meee abilities and to. — his best professional time to’.

“this. claim.

In Witness Whereof, the Parties have Libirdamto set

| their hands dnd seals at. Williamsport, Indiana, on this

12th day of May, 1964.

_ Raymond Hopkins, —S_- (Seal)

Verna B. Hopkins, ~~ (Seal)

vi | First Parties,

Allen Sharp. .- e(Seal)

+ APPENDIX V_

Lament {Si

305-85-2662-I1A32, HC 3, 2

District Office,

Danville, Illinois,

[os ied: January 24, 1966.

Mr. Raymond Hopkins, sae

Rural Route 2, - ai

Williamsport, Indiana .47993,

Dear Mr. Hopkins:- *

s

-

“We are writing about your claim for socjal security |

benefits. | | | :

, Ithas been determined that you are still disabled. There-

- fore, you and your family will continue to receive benefit

payments. <ae

This action supersedes our previous determination and is

in accordance with the decision of the United States Dis-

trict Court. If your condition impros or there is a change _

“in your work status, however, you must notify us immedi-

ately. . yh

Based on the recent amendments ‘to the Social Security

Act, you are entitled to receive $123.10. Your wife and the -

two children are each entitled to receive $51.50. These new

monthly rates are effective heginning January 1965.

Section 206(b)(1) of the Social Sectirity Act provides

that our attorney may ask the court to approve a fee not

to exceed 25 percent of past-benefits due you. We are,

therefore, withholding the amount of $936.20, which repre-

_ sents 25 percent of your past-due benefits of $3,744.00"

pending action by the couirt on the amount of the attorney

fee. The amount withheld will be applied against the fee |

set by the court and will be mailed directly to your attor-

- ney; any remaining amount will. be sent to you.

AAT Se Bs FETED AL

GIA ove a vlads. a

°

Ao realli: SO a Ree ree

.

ihe OO cia nelle Sli Ne waite sia uta RAGA A cine aa aa nets StS ae

P

A Rw.

Bengfit payments for you and your wif?will continue to

’ be combined. The next husband-wife check will be for

$5,032.60. This represents: payment for January 1963

through December 1965. You will receive this check within .

a few days. After that, the regular monthly check for

$174.60 will be sent shortly after. the month for which it

is payable.

The Yajlaren s check for the period of January 1963

through December 1963, in the amount of $3, 463. 50, will be

sent to you shortly. After that, their monthly, —

check for $103. 00 will be sent to you as usual.

If you have. any questions with regard to your claim, -

you should get in touch with the district office shown on. .

this notice. If you call in person, please take this notice

~ with you. ,

J Sincerely yours,

Bernard Popick,

. Director, Bureau of Disability. —

Insurance.

ec: Allen Sharp, -_

. Attorney-at-Law.

| | F

In THE Unitep Srates. District Court.

J For the Northern District of Indiana,

- Hammond Division at Lafayette.

vd . 4%

Raymond Hopkins, _.

Plaintiff, ae

vs. | Lafayette Civil

_

John W. Gardner, Secretary of No. 282. |

Health, Education and Welfare, : °

Defendant. | |

Oxpzn—March 14, 1966

f -

. Pursuant to the order of this court, eritered February 1,

1966, the defendant-has filed a memorandum showing the

_defendant’s full compliance with the order of this court en-

tered September 30, 1965. The plaintiff’s memorandum,

‘which was filed on January 31, 1966, but which did_ not’

come to the court’s attention until after its order was

filed on February 1, 1966, the following day, indicates that

‘ the plaintiff is entirely satisfied with the defendant’s com- '

pliance. There remains only the question of a determina-—

_ tion and certification of the amount of attorney’s fees

allowable to the plaintiff’ ’s counsel under § 206(b) (1). of the

Social Security Act as Amended (Section 332 of P. L.

89-97), 42 U. S. C. A. §406(b)(1) (Supp. 1965).

.

ee

, J

oT

The plaintiff and his attorney entered: into a contingent

fee contract pertaining to this litigation. That contract

was executed and this action was filed before ‘the Social

Security Act was amended to provide for the court’s deter- |

. ‘mination of counsel fee. However, the words of the statute

‘provide for such determination ‘‘whenever a court rendérs

_ a judgment favorable to a clainiant’’ in a case of this

nature. 42 U.S. C. A. §406(b)(1) (Supp."1965). It was

apparently the intent of Congress to have such attorney’s |

fees determined by the court in all appropriate judgments

rendered by the courtj"not just in judgments entered in

eases filed or relating to contracts executed subsequent to

‘the effective date of the amendment to 42 U. S. C. § 406.

Such legislation is unquestionably valid. Fleming v. Rhodes,

331 U. S. 100, 67 S. Ct. 1140 (1947); Calhoun v. Massie,

253 U. S. 170, 40 S. Ct. 474 (1920), United States district

courts had validly exercised such power even before the

congressional enactment of express authorization to deter-

mine attorney’s fees. Celebrezze v. Sparks, 342 F. 2d

. 286 (5th Cir. 1965) affirming Sparks v. Celebrezze, 228 F.

Supp. 508.(E. D. Texas 1964); and Folsum v. McDonald,

237 F. 2d 380 (4th Cir..1956). The plaintiff’s attorney .

himself has represented to this court that he was familiar

’ with the decisions in the two Sparks cases, supra.

From.the evidence in the record of this case, it is im-

- possible for this court to determine the exact dollar amount.

of past-due benefits to which the plaintiff, Raymond Hop-

_ kins, himself is entitled from January 1963, the date of the

termination of his benefits, until September 30, 1965, the

date of the judgment of this case. This court therefore

- determines. that the amount of attorney’ s fees to which

(me plaintiff’s attorney is entitled is twenty-five per cent

(25%) of the amount of. those past-due benefits.

aeeaer | this matter having come before the court

,

98.

pursuant to the petition of plaintiff’s attorney for approval .

- and allowance of.a fee for representation before this court

pursuant to Section 206(b) (1) of the Social Security Act

as Amended (Section 332 of P. L. 89-97), it is ordered -

q - that a fee is hereby awarded to the attorney for the plaintiff

iJ x _ Gn this proceeding jn the amount of twenty-five per cent

‘*“ \ (25%) of the payment due to the plaintiff, Raymond Hop-

x kins, from January 1, 1963 through September 30, 1965,

~\) which amount shall be certified by the defendant for pay- |

Coe “ment by the Secretary of the Treasury directly to the attor-

. _néy,-Allen Sharp.

meet 9 this 14th day of March, 1966.

eg | MS . Jesse E, .Esoupacu; *

: ass 6 United States District Judge.

A . ond ae oat ates ake kee Der 7" neers

*

F. d : ‘ , ;

.

‘ ;

es

, ,

No. 15724 oo

Ix toe Unrrep States Court or APPEgALs.

For the Seventh Circuit.

September Term, 1966—January Session, 1967 :

-

|

Raymond Hopkins, A ppeal from the

Plaintiff-Appellant, United States Dis-

*0-Appe . trict Court for the

- - -Northern District

Joun W. GARDNER, iskeieay of ~y Indiana, Ham.

‘Health, Education and Welfare, mond Division.

Nat ek | :

*»*

7

; Orusox—March 15, 1967 oad

bites Hast1n@s, Chiat’ Judge, and ‘Famennp and

Cummines, Circuit Judges. :

' Farrcump, Circutt Judge. This appeal, brought in reality

‘by attorney Allen Sharp, involves Sharp’s claim that the .

- district court erroneously limited his fee for services in an ¢

action to review an administrative decision ‘suspending in-

surance benefits under the social security act:. The prob-

_ lem is the construction of a statute, enacted in 1965, author-

izing thé court to allow a reasonable attorney’s fee where,

’ dn such action, a judgment favorable to a claimant is re-

covered, the fee not to be ‘‘in excess of 25 percent of the:

ma . |

_"

escalates a bo histind gibt IME Se S6,

total of the sates benefits to which the claimant is en-

titled by reason of such judgment.’”

The secretary contends that the statute applies to all

judgments entered after the statute was enacted, and that

the 25 percent maximum must be computed upon the tetal

of the past-due benefits to which plaintiff was individually

entitled. Sharp contends that the statute was not intended

to apply in a case where the fee lad been agreed upon

before the statute was enacted, but that if-it be applicable,

the 25 percent is to be computed upon an amount which

includes the past-due benefits to which-plaintiff’s wife and

children were entitled, as well as: plaintiff’s own.

In 1961 and 1962, Raymond Hopkins was receiving dis-

ability insurance benefits under the social security act, and

his wife and children were receiving the benefits provided

by the act for the wife and dependent ¢hildren of an indi-

vidual entitled to disability insurance benefits. Late in

1962 the department notified Hopkins that it considered him |

‘able to do substantial gainful work and that December,

1962, would be the last month for which he and his wife

and children would be entitled to benefits. Hopkins ex-

hausted his administrative remedies, but the final decision

was that his benefits had been properly’ terminated.

Hopkins “brought this action to review.: His’ wife and

children were not named in either the proceedings for ad-

ministrative review or as plaintiffs in this. action. On -

September 30, 1965, the district court reversed the secre-

tary’s decision-and ordered him to ‘‘pay disability benefits

to the plaintiff from the time of their termination until

such time as a new determination is made that plaintiff's

disability has, in fact, terminated.” *

On January 24, 1966, the department wrote Hopkins

that because it had -been decided ‘that Hopkins was still .

1. 42 U.S. ©. A. § 406(b) (1), Publie Law 89-97, July 30, 1965.

,

i

a

|

'

1

7°

%

31

~ disabled ‘‘you and your family will continue to receive

-benefit payments.’’ Hopkins’ individual past-due benefits

through December, 1965, totalled $3,744.80, his wife’s bene-

fits $1,287.80, and the children’s $3,463.50.

_ The district court awarded Sharp a fee of 25 percent

of the past-due benefits payable to Hopkins individually,

‘up. to September 30, 1965, the date of the judgment. |

The statute to be construed is as follows:

‘‘Whenever a court renders a judgment favorable

to a claimant under this subchapter who was repre-

sented before the court by an attorney, the court

may determine and allow as part of its judgment

a reasonable fee for such. representation, not in

excess of 25 percent of the total of the -past-due —

benefits to which the claimant is entitled by reason

of such judgment, and. the Secretary may, notwith-

standing the provisions of section 405(i) of this

title, certify the amount of such fee for payment

. to such attorney out of, and not in addition ‘to, the.

amount of such past-due .benefits. In case of any

such judgment, no other fee. may be payable or

certified for payment for such representation except

as provided i in this paragraph.’”

Paes. (b) (2), enacted at the same time, makes |

it a misdemeanor to charge for services in connection

with proceedings to which paragraph (1) is applicable

any amount in excess of that allowed by the court.

1. Application: to the instant case. Sharp and Mr.

and Mrs. Hopkins. signed a contract in May, 1964, in

_which the Hopkins employed Sharp to pursue the dis-

ability claim in court and fixed Sharp’s compensation

at 40 percent of the benefits accrued if awarded by the

district court, without appeal, and 50 percent if it became

2, 42 U.S.C. A. § 406(b) (1), Public Law 89-97, July 30, 1965.

32

necessary to appeal. The complaint was filed July 2, 1964.

- The statute was enacted July 30, 1965. Most of the serv-

ices had been rendered before that date. Judgment was

rendered September 30, 1965. :

Mr. Sharp relies on the rule of construction that ‘‘a

law will not be” construed as retroactive unless the act -

“clearly, by express language: or necessary implication,

indicates thatthe legislature intended a retroactive

application.’ The judgment was rendered, however, after

the statute was enacted, and the statute says ‘‘Whenever —

a court renders a judgment. . . .’’ Strictly speaking,

application of this statute to a judgment rendered after .

its enactment is not.retrospective. The retrospective im-

pact results from the fact that this action was begun

‘before the enactment, and that plaintiff and the attorney

. had agreed upon a fee before that. The same will be true

with respect.to:many judgments rendered after enactment,

though the proportion of time elapsed and services ren-

dered before and after the enactment will vary widely.

The difficulty of formulating any exception of already

pending cases which would still serve the purpose Con-

gress had in mind suggests that it was a deliberate

choice to apply the new rule to all cases not yet termi-

nated. : : o

The report of a senate committeé makes it plain that

Congress was concerned about the charging of inordi-

nately large fees, usually resulting from a contingent fee

- e > - °

arrangement,‘ and it seems a very reasonable choice to

make the remedy apply to all pending cases.

3. 2 Sutherland, Statutory Construction 115 (3rd ed. 1943).

4. ‘It has come to the attenfion of the committee that attorneys

have upon occasion charged what appear to be inordinately large

fees for representing claimants jn Federal district court actions

arising under the social security program. Usually, these large fees

result from a contingent-fee arrangement-under which the attorney

is entitled to a percentage (frequently one-third to one-half) of

tL PLE BP ARE ANE Bnet NA Meant ba ge af etinetiemeninaaitie a

. 33

J

The fourth circuit has held the statute applicable where

judgment was entered after the enactment, notwithstand-

ing the existence of a prior fee corftract.> -

We find no basis for any construction which would

exempt the allowance of fee in the instant case from

the application of the statute.

_ The base upon which the. 25 percent maximum is

to be computed. Mr. Sharp points out that although the

past-due benefits for Raymond Hopkins individually,

accrued to the end of 1965 (something less at date ‘of

. Judgment) were some $3,700, the judgment also deter-

- mined, in actual though incidental, effect, that Mrs. Hop-

kins and the children were entitled to benefits, so that

some $8,000 were the real total amount recovered for

the Hopkins family as a result of Sharp’s. efforts. He

contends that thé 25 percent limitation should be com-

puted upon the larger figure. aes

The key word is ‘“claimant,’? as used in sec. 406 (b)

(1)... That statute operates ‘‘whenever a court renders a —

_Judgment favorable to a claimant,’’ the claimant must

have been ‘‘represented before the court by an attorney,’’

and the maximum limit of attorney’s fees is measured

by a percentage of the benefits ‘‘to which the claimant

is entitled by reason of such judgment.’’ The word ‘‘claim-

ant’’ is found in the preceding subs. (a), which deals with |

the accrued benefits. Since litigation necessarily involves a con-

siderable lapse of-time, in many cases large amounts of accrued

benefits, and consequently large legal fees, are payable if the

claimant wins his case. nae is 3

“‘The committee bill would provide that whenever a court

_ Tenders a judgment favorable to a claimant, it would have express.

authority to allow as part of its judgment a reasonable fee, not

in excess of 25 percent of accrued benefits, -for services rendered

in connection with the claim; no other fee would be payable. ...”’

S. Rep. No. 404, 89th Cong., Ist Sess. 422 (1965), U. S. Code

Cong. & Admin. News 1965, p. 2062. :

5. Lambert v. Celebrezze (4th Cir. 1966), 361 F. 2d 677, 679;

Redden v. Celebrezze (4th Cir. 1966), 361-F. 2d 815, 816. :

representation of claimants in administrative proceedings

before the secretary. -. -

Mr. Sharp would contend that .‘‘claimant’’ may ‘be read

in the plural and includes those whose right to what may

be termed derivative benefits is established by the judg-

ment in favor of one found to be entitled to what may

be termed primary benefits. If Mr. Hopkins is the .only

‘‘claimant,’’ the district court correctly limited the fee

to 25 percent of the past-due benefits accrued to him.

If his wife and children are also ‘<claimants,”’ the district

court: might have ‘allowed a larger fee, but not in excess

of 25 percent of the past-due benefits accrued to. all.

Under a strict construction of the words in the statute,

no one’ could be a ‘ ‘claimant . . . who ‘was represented

before the court by an uteri" unless he were a plain-

tiff in-the action. Here, the only plaintiff was Hopkins.

But while such. construction would exclude the wife

and children from the category of ‘‘claimant’’ in. this —

ease, because they were not plaintiffs, and hence would

exclude their past-due’ benefits from the base on which

the maximum attorney’s fee would be: computed, it would

make the result depend on a‘procedural detail. Here the

administrative decision under review terminated the pay-

ment of benefits to all four in the Hopkins family upon

the single ground that Hopkins was no longer entitled,

and all could have joined as plaintiffs. In many cases,

although each beneficiary must make a separate applica-

tion, it would be possible to make such application and

have each applicant become a plaintiff in an action to.

review the administrative denials. It does not seem satis-

factory, therefore, to rest our decision upon the proposi-

tion that a beneficiary is not-a ‘‘claimant’’ unless he is a

‘*plaintiff.’’

In broader terms, the question is whether “claimant”

|

i

‘

Ee ee eee Oe ee a a Ee ie aad

.

.

=)

under this’ statute includes all persons whose entitlement

to benefits is established by the resolution of the -issue

before the court, in this case, Mr. Hopkins’ disability,

_ or whether ‘‘claimant’’ as used in the statute means only

the applicant for primary benefits in any case where his

entitlement is the issue.® — hy ene

The fourth circuit has adopted the first construction,

holding that ‘‘the statutory words ‘past-due benéfits to

which the claimant is entitled by reason of such judg-

ment’ mean the entire group of benefits’ payable to. the

_ primary claimant on his own behalf and to him and

other dependent members of his family on their behalf.’

We, however, with all respect to our brethren of the

fourth circuit, choose the latter construction. We do so

because it more closely limits fees, and such was the

concern of Congress in enacting the statute. It also seems

probable ‘that those who drafted the statute. assumed.

that where the dispute was over the entitlement of the

individual applying for primary benefits, only’ he, and

not those who would be entitled to derivative benefits;

would appear as claimant before the secretary or as

plaintiff before the court. The words they chose should

be interpreted accordingly even though, as previously

pointed out, it may ‘be possible to have all interested

beneficiaries formally pursue: the administrative remedy

and seek judicial review .as plaintiffs. Furthermore, —

although ‘‘the time and labor required, the novelty and

difficulty of the questions involved and the skill requisite.

_ 6. Even under. the latter alternative, an applicant for deriva-

tive benefits would be deemed a ‘‘claimant’’ under some circum-

‘stances. For example the issue might be whether an applicant

was as she claimed to be, the wife of an individual who was

entitled to primary benefits.

7. Redden v. Celebrezze, Lambert v. Celebrezze (4th Cir. 1966),

370 F. 2d 373, 375, aff’g on rehearing en banc 361 F. 2d 815 and

361 F.2d 677, IF !

Saliba a

36 © , | 9

properly to conduct the cause’’ make up but one of the

elements thought proper in determining a lawyer’s fee,*

this element is no greater in. presenting an action to

‘review denial of benefits to’ an applicant who is single

and without dependents, than in presenting the same

issues in an action where the applicant has a wife and .

_ children. We think it unlikely that’ Congress intended ~

_° that in a case like this the maximum fee should be more

than twice as large as it would have been if Mr. Hopkins

happened to'bé single. .° : ©

. We consider the district court reached the correct ;

decision, and _ order appealed from is .

‘AFFIRMED.

: 3

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8. The others are: ‘‘ (2) ‘whether the acceptance of employment

in the particular case will preclude the lawyer’s appearance for _

others in cases likely to’ arise out of the transaction, and in which

there is a reasonable expectation that otherwise he -would be em-

ployed, or will involve the less of other employment while em-

' ployed in the particular case or antagonisms. with other clients; ‘

(3) the customary charges of the Bar for similar services; (4) the

amount involved in the controversy and the benefits resulting to .

the client from the services; (5) the contingency or the certainty

_of the compensation ; and (6) the character of the ga

whether casual or for an ‘established and constant client. =.

' ABA Canons of Professional Ethics No. 12.

-

Ce ek eel ee ele

ee ee eee feed

eto Rb

Oy,

Unrrep States Court oF Apprata

For tHe SeventH Cicurt

Wednesday, March 15, 1967 _

Before ‘Hon. Joun 8. Hastines, Chief Judge; Hon.

‘THomas E. Famcump, Circuit Judge; Hon. Watter J.

Cummines, Jg., Circuit Judge. - - 7

No. 15724 |

_ Raymon Hopkins, Plaintiff-Appellant,

vs.

_& © Joun W. Ganpyen, Secretary of Health, Education

and Welfare, Defendant-Appellee. :

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

J up¢MENT—March 15, 1967

This catise came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Indiana, Hammond Division, and was argued

__ by counsel. ‘oeee

On.consideration whereof, it is ordered and adjudged by’

_ this court that the order of the said District Court in this

* *cause appealed from be, and the same is hereby; Affirmed, -

in accordance with the opinion of this Court’filed this day.

Unirep States Court or APPEALS

For the Seventh Cireuit

-\ , °

\

\

Friday, April \21, 1967.

Before:

Hon. John §.. Hastings, C ag Jains,

"Hon. Elmer J. Schnackenberg, Circuit Judge,

' Hon. Win G. Knoch, Circuit: Judge,

Hon. Latham Castle, Circuit Judge, ©

Hon. Roger J. Kiley, Circuit Judge, —

- Hon, Luther M. Swygert, Circuit Judge,

Hon. Thomas E. Fairchild, Circuit Judge,

Hon. Walter J. Cummings, Jr., Circuit Judge.

cexdrege Mrmr e | Va al f rom the

; ti 6

a. om United States Dis-

vs. 4 ._ trict Court for the

Northern District

of Indiana, Ham-

mond Division.

No. 15724 |

John W. Gardner, Secretary ‘ of

_ Health, Education and Welfare,

er Appellee. J

_ Ir Is Orperep the Court that the petition tie a re-

hearing en banc of this.cause be, and the same is hereby, |

Deniep. 3 ;