# Amicus Curiae Brief — Fusari v. Steinberg > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0356%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 419 U.S. 379 ## Text ha Sah Octoser TERM, 1973 . No. 73-848 IN THE ~ £ Sa SNE ES SIRENS ha PTS SaaS ' iv ~ A PAGE McVeigh v. United States, 78 U.S. (11 Wall.) 259 : (1870) ... forssiomes exenontontndaterennmnes icnelabiniicertine 34 2 i Mitchell v. W. T. Grant Co;, ——_U.S. —, 94 S. Ct. ‘ ! Re EO) ie eccrine nes 19, 23 ¢ Morgan v. United States, 298 U.S. 468 (1936) _..000........ 34 ‘ Nash v. Industrial Commission, 389 U.S. 235 (1967) ... 24 a > a i Powell v. Alabama, 287 U.S. 45 (1932) eccseccsesseceseeee 38 4 Pregent v. New Hampshire Department of Employ- ment Security, 361 F. Supp. 782 (D. N.H. 1973), vacated and remanded for determination of moot- ness, US. , 42 U.S.L.W. 3651 (U.S. May 28, : TOTO) es 11,12 : : Shields v. Utah Idaho Central Railroad Co., 305 U.S. : SAF CIIIIY cise i 34 : Sniadach v. Family Finance Corp., 395 U.S. 337 (TIGR) nsec wl, 29, 21 Torres v. New York State Dept. of Labor, 321 F. Supp. ; 452 (S.D.N.Y. 1970), vacated and remanded, 402 U.S. 968 (1971), previous decision adhered to, 333 F. Supp. 341 (S.D.N.Y. 1971), aff'd mem., 405 U.S. 949 (1972), rehearing denied, 410 U.S. 971 (1973) ........ passim ; : United States v. Illinois Central R.R., 291 U.S. 457 B.S a erie sheeicrenitae tees 34 4 : Wheeler v. Vermont, 335 F. Supp. 856 (D. Vt. 1971) ....11, 12 } Willner v. Committee on Character and Fitness, 373 TT Oe TT ice ee ee 39 Windsor v. MeVeigh, 93 U.S. 274 (1876) 34 Wong Yang Sung v. MeGrath, 339 U.S. 33 (1950) ........ 39 Vv PAGE Constitution: Fourteénth Amendment to the United States Consti- tution cae com cesesee-PASSIM Federal Statutes: Social Security Act Title I sie tetibiliacee ; 33, 35 ‘Title III 4, 9, 32, 35 Tie IVA 33, 35 TI Fa scans coset eceecienaac canta ioeaag neal Campa 33, 35 Title XIV .. « oa Title XVI 33 - Title XIX 33 §2(a)(4) [42 U.S.C. §302(a) (4) ] a 33 §$§301 et seg. [42 U.S.C. $$501 et seq.) ............... navi £0 §302(a) [42 U.S.C. $502(a) ] 21 §303(a) [42 U.S.C. $503 (a) ] 3, 4,13 §303(a)(1) [42 U.S.C. §$503(a)(1)] .............. 9, 28, 30, 31 _ §303(a)(3) [42 U.S.C. $503 (a) (3) J -.------------------ 6, 9, 32 $§401 et seq. [42 U.S.C. §$§601 et seq.] ............-..------- 15 §$402(a) (4) [42 U.S.C. $602(a) (4)] ...........-..2.-.- ee 33 §§901 et seq. [42 U.S.C. $§1101 et seq.) -...............---- 15 §1002(a) (4) [42 U.S.C. $1202(a) (4) ] 33 State Statutes: Code of Ala., Title 26, $202 (1940), as amended (Supp. 1974) : 16 Conn. Gen. Stat. ch. 302, §17-82 (1958), as amended (Supp. 1973) 15 vi PAGE Conn. Gen. siat. ch. 302, §17-85 (1958), as amended SR, TOTO). Siccectcteen- Salis icieticxsnekenneute 15 Conn) Gen. Stat. ch. 567, $31-234 (1958) ............2...22...----2- 26 Conn. Gen. Stat. ch. 567, $31-235 (1958) .............2.......00-00-- 15 Conn. Gen. Stat. ch. 567, §$31-235(2) (1958) .......-24......-.-- 4) Conn. Gen. Stat. ch. 567, §31-241 (1958), as amended, Conn. P.A. 339, §14, L. 1974 .......... baitags ae | Conn. Gen. Stat. ch. 567, §31-242, as amended, Conn. ri, Bes a Mes I scsi ecceiccnersnriem 6 Conn. Gen. Stat. ch. 567, $31-263 (1958) ..2..2.... ee eeeeeee ee 21 Conn. Gen. Stat. ch. 567, $31-273 (1958), as amended, TS age Bp EO oy Selttacecns tine neem ion agri cer eI 21 Conn. P.A. 536 §4, L. 1973, amending Conn. Gen. Stat. om O67, 401-2 Ce) a. ee 22 Cénn. P.A. 339 §1, L. 1974 Nee Com. PA. 306 $2, l. 194 > 6 a ee Bi BE vie 6 Conn. P.A. 339 §9, L. 1974 ........ iea Io ae 6 Conn. P.A. 339 $10, L. 1974 Si elaine elichcasimasas 6 N.J. Stat. Ann. 43:21-7(d)(1) (1962) as amended ees TOS) ee. 16 Regulations: SALT M. Saeco) (19D) on 33 Reh gh RE RUE ULES i (Zoe ee snr een 33 45 C.F.R. §205.10(a) (4) (i) (1973) 0222... aD aces 33 tr eee ate) fie) 33 45 C.F.R. §205.10(a) (6) (i) (1973) sich 33 a0 0 Pa, pee re) Cee) nos 33 CFR. $206.10(a) Gis) (i) (1973). 33 45 C.F.R. §205.10(a) (13) (vi) (1973) ........ 33 feewcnowemaneanamnenare vii PAGE Legislative History: Conn. State Sen. Proc. (May 7, 1974) ......-..-.....---c---ec-sse0e- + 79 Cong. Rec. 5468 (1935) 16, 25 Hearings on H.R. 4120 Before the House Committee on Ways and Means, 74th Cong., Ist Sess. 214 (1935) ..... 15 29, 30 Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., Ist Sess. 2 (1935) 29 H.R. Rep. No. 615, 74th Cong., Ist Sess. 7 (1935) ....16, 28, 29 Report of the Committee on Economic Security, Hear- ings on S. 1130 before Senate Committee on Finance, 74th Cong, Ist Sess. 1321-1322 (1935) 16, 29 Report of the House Ways & Means Committee on the 1970 Employment Security Amendments, H.R. Rep. No. 612, 91st Cong., Ist Sess. 19 (1969) 16 Report of the Senate Finance Committee on the Em- ployment Security Amendments of 1970, S. Rep. No. 91-752, 91st Cong., 2nd Sess. 24 (1971) 16 S. Rep. No. 628, 74th Cong., Ist Sess. 12 (1935) -........... 15, 28 Textbooks and Pamphlets: Becker, Adequacy of the Benefit Amount in Unemploy- ment Insurance (Upjohn Institute for Employment Bhomeunrcdh, Mim y, LOGE) ncn nics acs ses tiene 26 Connecticut State Department of Lips, Devartnent Bulletin (Spring, 1973) 28 E. Teple & C. Nowacek, Experience Ratan: Its Objec- tives, Problems and Economic Implications, 8 Vand. L. Rev. 376 (1955) . 16 PAGE H.E.W. Social Rehabilitation Service, “Public Assist- ance Report, #50: Characteristics of State Public Assistance Plans, General Provisions—Eligibility, Assistance, Administration” (1973) ..... 25 United States Department of Labor, Unemployment In- surance Financial Developments (1972) -..................... 2 United States Department of Labor Handbook of Un- employment Insurance Financial Data, 1938-1970 (1971) 7 24 United States Department of Labor, Unemployment Insurance Statistics (March-April, 1974) 2. 26 In THE Supreme Court of the United States Octoser TERM, 1973 No. 73-848 9 interests requires provision of a full due process hearing prior to the termination of unemployment compensation. As to the second and third bases for affirming the decision below, it is apparent that Congress had a three-fold pur- pose in mind when it enacted Title II] of the Social Security Act: providing the worker with subsistence income during inemployment, stabilizing the economy by maintaining the workers’ purchasing power, and allowing maximum ability to search for work. To accomplish these goals, Congress provided in $4$303 (a)(1) and (3) [42 U.S.C. $$508(a) (1) and (3)j that no state program would be certifigd by the Secretary of Labor unless it hrovided for paym@gff™"when due” and a “fair hearing” hr all individuals denied unemployment compen- sation. In California Department of Human Resources De- velopment v. Java, supra, this Court construed the phrase “when due” in §303(a)(1) to mean “at the earliest stage of unemployment that’ such payments were administratively feasible. ...” 402 U.S. at 131. : The Court below, while considering whether Connecticut's present procedure allowing for the summary termination of compensation violated §303(a)(1), concluded that it did not in reliance on this Court's summary affirmance in Torres vy. New York State Department of Labor, 405 U.S. 949 (1972). However, in so doing, it failed to attribute full significance to two important facts: the reversal rate of determinations of: ineligibility rendered in a seated inter- view and the delay that occurs before a hearing deci- sion. Both are significant because together they serve to deny compensation to many eligible recipients during the period that Congress intended them to receive compensa- tion. A high reversal rate coupled with a long delay before a decision on appeal means that claimants incorrectly deter- ape «so ee onemenient ws 3 8 3 i a 4 = ile Bsa ena bale a ie. Live ie | ee a) IP Wat Beek os 10 mined ineligible are without compensation during a sub- stantial part of their periods of unemployment, if not all of it, contrary to Congress’ intent that pay ments be niade during unemployment. The phrase “fair hearing,” as used in the Social Security Act, has been administratively interpreted to require pro- vision of prior hearings under six Titles of the Social Se- curity Act. Common sense suggests that Congress intended to act consistently and that the phrase must have the same meaning in all Titles of the Act. Likewise, the traditional meaning ascribed to the phrase “fair hearing” establishes that Congress intended that the hearing occur prior to compensation terminations. . As to the fourth basis for affirming the decision below, the present Connecticut procedure for benefit terminations, such as those imposed on appellees, is defective in failing to pro- vide notice, opportunity to prepare, opportunity for rep- resentation, opportunity for confrontation, opportunity for eross-examination and an impartial hearing officer. The Court below, in viewing this against the long delay before these due precess requirements were provided, al- lowed the state four optional methods of remedying the defects of its procedures: (1) providing prior hearings, (2) providing hearings more rapidly, (3) increasing the due process protections available in the present termination procedure, or (4) paying benefits pending a hearing subject to recoupment. Thus the State was allowed to adopt any one or combination of these remedies. The infirmities of the present procedures, which often result in erroneous decisions and are only reviewed after a long delay, obvi- ously required some remedial action and the Court re- sponded with a fair range of alternative courses of action. a ened 11 ARGUMENT A. Introduction ‘The issues raised on this appeal are not novel to the lower federal courts or to this Court. In the past three years, four unanimous three-judge district courts* and one single-judge district court’ have held that fair hearings prior to unemployment compensation terminations are re- quired while one court of appeals, by a split decision,”® and one three-judge district court, also by a split decision,” have held that prior hearings are not required. The Court below, while not requiring a prior hearing, did find Con- necticut’s present procedure to be inadequate to meet the requirements of due process. Prior to the noting of probable jurisdiction in the in- stant appeal, three of the above cases were acted upon by 8 Pregent v. New Hampshire D.E.S., 361 F. Supp. 782 (D.N.H. 1973) (three-judge court), vacated and remanded for determina- tion of mootness, 42 U.S.L.W. 3651 (U.S. May 28, 1974); Hiatt v. Indiana Employment Security Division, 347 F. Supp. 218 (N.D. Ind. 1971) (three-judge court), remanded for determination of mootness, sub nom., Indiana Employment Security Division v. Burney, 409 U.S. 540 (1972); Wheeler v. Vermont, 335 F. Supp. 856 (D. Vt. 1971) (three-judge court) ; Foard v. Ohio Bureau of Employment Services, No. C 70-302 (N.D. Ohio 1971) (three-judge court). ° Crow vy. California Department of Human Resources, 325 F. Supp. 1314 (N.D. Cal. 1970), rev’d, 490 F.2d .580 (9th Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3439 (U.S. Dee. 28, 1973) (No. 73-1015). See note-9, supra. Torres v. New York State Dept. of Labor, 321 F. Supp. 432 (S.D.N.Y. 1970) (three-judge court), vacated and remanded, 402 U.S. 968 (1971), previous decision adhered to, 333 F. Supp. 341 (1971), aff'd mem., 405 U.S. 949 (19-2), rchearing. denied, 410 U.S. 971 (1973). Sie ea Tae ee Be tio A TATA lel RENNIE SAO. CM et NAM AL Rik ates 12 this Court: two of the unanimous three-judge district court decisions requiring prior hearings were remanded by this Court for determinations as to mootness,'* while the split three-judge district court decision in Torres v. New York State Department of Labor denying a prior hearing was summarily affirmed by this Court.” Although this Court has never spoken on the merits of the unemployment compensation prior hearing issue, this Court’s summary affirmance in Torres has not been without significance in the instant case. Constrained by a Second Cireuit ruling requiring that full precedential weight be given to a summary affirmance by this Court,"* the Court be- low found itself unable to hold that Connecticut’s denial of a prior hearing violated the Social Security Act. However, the Court did distinguish Torres on the facets [primarily with regard to the inordinate delay in Connecticut between the date of the termination and the date of the fair hearings (see 364 F. Supp. at 934)], in applying the due process weighing test and concluded that due process requires more than Connecticut now extends to unemployment compensa- tion recipients. The Court provided the State with a set of alternative modifications which would bring the State pro- cedures into compliance with the requirements of due process. In reaching this result, the Court noted that were it “writing on a somewhat cleaner slate, [it] would have little difficulty in rejecting the reasoning of the district court in Torres, and concluding, largely for the reasons so ably set out by Judge Oakes in Wheeler vy. State of Vermont 12 See Pregent and Burney cited in note 8, supra. ‘3 See note 11, supra. '* See Doe v. Hodgson, 478 F.2d 537, 589 (2nd Cir.), cert. denicd, 414 U.S. 1096 (1973), cited by the three-judge district court below, 364 F. Supp. at 931. + 3 13 [335 F. Supp. 856 (D. Vt. 1971) (three-judge court) ], that the Connecticut unemployment compensation procedures . here challenged conflict with both the Fourteenth Amend- ment and the Social Security Act.” 364 F. Supp. at 931. This Court of course is not constrained by its summary affirmance in Torres, as was the court below. [Recently, this Court rejected a series of three summary affirmances in reaching its decision in Edelman vy. Jordan, US. —, 94 S. Ct. 1347, 13859 (1974).] Unconstrained by Torres, this Court may now under- take a fresh analysis of the constitutional and statutory provisions relating to prior hearings in unemployment compensation. A fair reading of those provisions compels . the conclusion that prior hearings are required in unem- ployment compensation. But at the very least, the modest requirements of the judgment of the Court below should be affirmed. B. The Due Process Clause of the Fourteenth Amendment and Section 303(a) of the Social Security Act Require a Fair Hearing Prior to the Termination of Unemployment Compensation 1. The Termination of Unemployment Compensation Without a Prior Hearing Violates the Due Process Clause of the Fourteenth Amendment In Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), this Court held that the determination of due process requirements in any particular context involves a two-step analysis: In order “to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” 408 U.S. at 570-571. Second, once an interest is found to be protected by due process, a “weighing process” is necessary to determine the form of hearing required by iS ih AEE EDL ORG SLE ATR ASSIS BERLE BE IA. a j 14 ee ae due process to protect that particular interest. 408 U.S. — at 470. Application of this analytical approach to the instant case requires the conclusions: (a) that unemployment com- pensation, a statutory entitlement and contractual right, in- tended by Congress to be paid immediately “when due,” is a property interest warranting due process protection ; and (b) that when the interests of the State and employers are balanced against those of the unemployed worker the scale tips heavily in favor of the worker. a. Unemployment Compensation Is a Property Interest Protected by the Due Process Clause of the Four- teenth Ainendment In Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), this Court defined the parameters of those interests whose nature is sufficient to invoke the protections of due process. Noting that a person must have “more than an abstract need or desire ... more than a unilateral expectation [for the property] ...” the Court stated that the person “must, instead, have a legitimate claim of entitle- ment to it.” 408 U.S. at 577. The Court continued: “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understand- ings that stem from an independent source such as state law—rules or understandings that secure certain bene- fits and that support claims of entitlement to those benefits. Thus the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not vet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.” 408 U.S. at 577. 15 Like welfare benefits, unemployment compensation is a public benefit program. Both welfare and unemployment compensation are joint federal-state programs adminis- tered primarily by the states;° and like welfare entitle- ment, entitlement to unemployment compensation is grounded in state statutes defining eligibility for compen- sation. Another aspect of unemployment compensation is that it is to be paid to workers during a specific period of time—the period during which they are unemployed.” Beyond its characteristics as a public statutory entitle- ment, unemployment compensation also has private con- 15 For example, 42 U.S.C. §§601 et seq., provide for federal finan- cial assistance to the states for the state administration of the AFDC Program so long as the states comply with the federal statutory conditions set forth therein. : Similarly, 42 U.S.C. §§901 et seg. and §§1101 ef seq. provide for federal financial assistance to the states for the state adminis- tration of unemployment compensation so long as the states comply with the federal statutory conditions set forth therein. ‘6 For example, AFDC benefits in Connecticut must be paid to any applicant where the following state statutory conditions of eligibility are met: The applicant seeking benefits for a depen- dent child must be unable to furnish suitable support therefor in his own home; each dependent child must be supported in a home in Connecticut and an applicant for aid must not have made an assignment or transfer of property for the purpose of qualify- ing for the award. Conn. Gen. Stat. ch. 302, §17-85 (1958), as amended (Supp. 1973). Further, a dependent child must be a needy child under the age of 18 who has been deprived of parental support or care due to death, continued absence from home, or mental or physical incapacity of a parent, and the dependent child must be living with a qualified relative in a place of residence maintained by one or more such relatives at his or their own home. Conn. Gen. Stat. ch. 302, §17-82 (1958), as amended (Supp. 1973). Similarly, earned unemployment compensation in Connecticut must be paid to any applicant who meets the statutory conditions for eligibility. See Conn. Gen. Stat. ch. 967, §31-235. 7 See generally, Hearings on H.R. 4120 before the House Com- mittee on Ways and Means, 74th Cong., Ist Sess. at 214 (1935) ; IL.R. Rep. No. 615, 74th Cong., Ist Sess. 7 (1935) ; S. Rep. No. 628, 74th Cong., Ist Sess. 12 (19385). Fb SEE Nit VR TAR 4 he ARGO TES LIED BERN LARD, NS AERIS CST it e ‘ 16 tractual characteristics flowing from its nature as a wage substitute. To the Congress that created it, unemployment compensation was not charity; rather it came to an un- employed worker as a “matter of right.” "* In fact, it was presented to Congress as a program that would create a “eontractual right.”’® More recently Congress has char- acterized unemployment compensation as an “earned mon- etary entitlement.” *° Behind these characteristics is the re- ality: unemployment compensation payments are made from the Unemployment Trust Fund which is financed by employer contributions.*. The right to such payments is thus also grounded in a contract—the employment relation- ship. 18 “The advantages of social insurance over p lief are many. It does not carry with it the stigma of (charity with its devastating effect on the morale of our populaNen and its loss of self-respect. The protection afforded by social insurance comes to the worker as a matter of right. It is contingent upon the previous employment and contributions of the worker him- self and does not involve the social investigation and the means test which is inevitable in any system of public relief.” 79 Cong. Ree. 5468 (1935) (remarks of Representative Doughton, Chairman of the House Ways and Means Committee). '® Report of the Committee on Economie Security, Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess. 1321-1322 (1935). 2° See Report of the Senate Finance Committee on the Employ- ment Security Amendments of 1970, S. Rep. No. 91-752, 91st Cong., 2nd Sess. 24 (1971), and Report of the House Ways and Means Committee on the 1970 Employmeit Security Amendments, H.R. Rep. No. 612, 91st Cong., Ist Sess. 19 (1969), both relating to unemployment compensation amendments to the Social Security Act. *1 Initially, in nine states, not only the employers but also the employees themselves made ,contributions toward the unemploy- ment compensation fund. See, E. Teple and C. Nowacek, E.rperi- ence Rating: Its Objectives, Problems and Economic Implications, 8 Vand. L. Rey. 376, 380, n. 8 (1955), a practice still followed in two states: New Jersey, see N.J. Stat. Ann. 43 :21-7(d)(1) (1962), as amended (Supp. 1974); and Alabama, see Code of Ala., Title 26, §202 (1940), as amended (Supp. 1974). 0 LEE AEET™ OL Oe 08 2 hE 17 This Court has extended due process protection to both statutory and contractual property interests. The former type of property interest, such as statutory entitlements to welfare benefits, have regularly been accorded due process protection. See, ¢.g., Goldberg v. Kelly, 397 U.S. 254 (1970) ; ef. Flemming vy. Nestor, 363 U.S. 603 (1960) (Old Age Benefits).** Recent examples of the latter are the rights conveyed by installment sales contracts for such items as household furnishings at issue in Fuentes v. Shevin, 407 U.S. 67 (1972) and the wage payments at issue in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). Unemploy- ment compensation being both a contractual right and a statutory entitlement is unquestionably a protected prop- erty interest. The nature of this property interest is such that it is inextricably related to the time at which it is available. It is an entitlement to receive payments at a certain time, ie., during unemployment. See p. 28, infra. The prop- erty interest, by its very nature, is destroyed without due process if, once payments are found to be due, they are terminated during unemployment without a hearing first being held. There can be no doubt that unemployment compensation is a property interest protected by due proc- ess and that that interest is an interest in receiving pay- ments at a specific time. In fact, this Court has recognized in unemployment com- pensation an interest sufficient to require the protection _ 2 Writing for the Court nearly fifteen years ago in Flemming v. Nestor, 363 U.S. 603 (1960), Mr. Justice Ilarlan stated: “(T]he interest of a covered employee under the [Social Se- curity] Act. is of sufficient substance to fall within the pro- tection from arbitrary governmental action afforded by the Due Process Clause.” 363 U.S. at 611. PM ese cere nial As BO ASSEN ERR ERE BE te ood LY We hie ib tebisaacteie ade att SSRaa esas er ee 2: \ \ 18 of due process. Four years ago, it used entitlement to unemployment compensation as a springboard to find in welfare entitlement a property interest sufficient to invoke due process requirements: “Relevant constitutional restraints apply as must to the withdrawal of public assistance benefits as to dis- qualification for unemployment compensation.” Gold- berg v. Kelly, 397 U.S. 254, 262 (1970). Certainly the converse of this proposition is equally valid. b. The Due Process Weighing Test Requires a Full and Fair Hearing Prior to the Termination of Unemployment Compensation Since unemployment compensation is a property inter- est sufficient to invoke the protections of due process, it is necessary to apply the “weighing process” to determine the form of the hearing required by due process to protect that interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570 (1972). The determination as to form generally includes provision for adequate notice, for _ presentation of evidence, for confrontation and cross-ex- amination, for right to counsel or other representation, for ‘an impartial decision-maker and for a decision based upon evidence. Goldberg y. Kelly, 397 U.S. 254, 271 (1970). ‘ While this Court, following a long line of authority, has held that the hearing is always required prior to depriva- tion of a property interest, Fuentes v. Shevin, 407 U.S. 67 (1972),* more recent holdings suggest -that the question 2 YPhis Court in Calero-Toledo v. Pearson Yacht Leasing Co., —— US. ——, 42 US.L.W. 4963 (U.S. May 15, 1974) recently acknowledged the validity of this Fuentes analysis by holding that postponement of notice and hearing is justified only in extraordi- nary situations. regase: 40 wait long periods of time before being given the oppor- tunity to fairly present their cases and endure the conse- quent hardship, the holding of the Court below emerges as a modest response to a clear-cut denial of due process. As noted above, a balancing of the competing interests af the recipient and the employer tips decidedly in favor of the recipient. See; pp. 18-27 supra. Amici, like the Court below, have difficulty discerning what interests the State could possibly have sufficieat to justify refusal to adopt that Court’s proposals. Surely long delays in benefit payments do not help the State. Surely, too, an increase in the proce- dural proprieties at the seated interview would riot be un- duly burdensome. These points are necessarily true a fortiori since it has already been shown that the burdens incident to holding a prior hearing are not sufficient to out- weigh the interest of the recipient in early and correct bene- fit determinations. Finally, to the extent the State follows the suggestion of the Court below that the State may comply with the requirements of due process by processing requests for hearings more expeditiously, the State will reduce the amount of benefits paid to recipients pending hearings. In view of the hardships imposed by the present Con- necticut procedures, the inadequacy of those procedures to meet minimal requirements of fairness, and the inconse- quential burden imposed on the State by the decision of the Court below, the Court’s modest proposals for securing due process rights to recipients are most appropriate and should be affirmed by this Court. 4) CONCLUSION For the foregoing reasons the decision of the Court below should be affirmed. Dated: New York, N. Y, July 19, 1974 4 Respectfully submitted, . DENNIs R. YEAGER E. Ricuarp Larson National Employment Law Project, Ine. 423 West 118th Street New York, New York 10027 Martrig Lovis Tuompson STEPHEN E. Gorrures Community Action for Legal Services, Ine. 335 Broadway New York, New York 10013 (. CHRISTOPHER Brown DENNIS M. SWEENEY ALAN S. Davis Legal Aid Bureau, Ine. — 341 North Calvin Street Baltimore, Maryland 21202 C. LYONEL JONES Epwarp R. STEGE, Jr. Legal Aid Society of Cleveland 2108 Payne Avenue, N.E. Suite 728 Cleveland, Ohio 44114 STEPHEN M. RanpeEts Legal Services Center Rainier Valley Office _ 3230 Rainier Avenue South Seattle, Washington 98144 ALAN W. Hovseman Michigan Legal Assistance Program Wayne State University Law School Detroit, Michigan 48202 Joun M.. Levy Neighborhood Legal Aid Society, Ine. 300 East Clay Street Richmond, Virginia 2324] Jerry L. Covineton GEORGE POWELL ISRAEL GALINDO GILBERT RopriGvEz Texas Rural Legal Aid, Inc. 216 N. Closner Edinburg, Texas 78539 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0356%3A06. Public record. Not legal advice.