On Emergency Application for Stay.
The emergency application to vacate the stay entered by Justice
REHNQUIST is denied.
Justice STEVENS with whom Justice BLACKMUN joins, dissenting in
part.
The Secretary of Health and Human Services ("the Secretary") has
taken the position that she may, at any time, terminate the payment
of disability benefits to persons who have previously been found to
be disabled and entitled to benefits under Titles II and XVI of the
Social Security Act notwithstanding the complete absence of
evidence that the recipient's medical condition has improved. In
maintaining this position, the Secretary refused to follow the
settled law in the Ninth Circuit, which requires her to adduce some
evidence of medical improvement before terminating disability
benefits. See Patti v. Schweiker,
669 F.2d
582 ( CA9 1982); Finnegan v. Mathews,
641
F.2d 1340 (CA9 1981). Nevertheless, for
Page 464 U.S.
879 , 880
the purposes of the stay application under review, the Secretary
assumes that the Ninth Circuit's interpretation of the law is
correct. Her stay application was predicated entirely on procedural
grounds. A review of the procedural history of the case is
therefore necessary.
Respondents filed a class action in the United States District
Court for the Central District of California challenging the
Secretary's policy. On June 16, 1983, the District Court entered an
injunction requiring the Secretary to comply with the law of the
Ninth Circuit with respect to recipients of disability benefits who
reside in that circuit. The only portion of the District Court's
injunction presently at issue in this Court is 4(c), which applies
to all persons whose disability benefits have been terminated since
August 30, 1981 (or August 25, 1980 in the case of recipients who
were "grandfathered" into the federal program from state disability
programs). Paragraph 4(c) enjoins the Secretary to notify all such
persons that they may reapply for benefits, and upon reapplication,
to reinstate their benefits pending a termination hearing at which
the Secretary must produce some evidence of medical improvement.
[
Footnote 1] It is this portion
of the District Court's injunction which Justice REHNQUIST, acting
as Circuit Justice, stayed pending the Secretary's appeal to the
Ninth Circuit.
Today the Court declines to vacate the stay entered by Justice
REHNQUIST. Of course, in considering an application of this kind,
substantial deference must be paid the judgment of the Circuit
Justice. See Rosenberg v. United States,
346 U.S. 273, 286-287,
1159 (1953). The Circuit Justice's decision should not be disturbed
simply because the other members of the Court would have declined
to grant the stay as an original matter. Nonetheless, there are
cases in which reexamination is proper, see id., at 287-288-1160; I
am persuaded that this is such a case.
In Justice REHNQUIST's view, the District Court's injunction
extended to persons over whom the District Court had no
jurisdiction. That conclusion does not, however, justify a stay of
the injunction to the extent that it granted relief to persons over
whom the District Court does have jurisdiction. Moreover, the
extent of the overbreadth is less than Justice REHNQUIST assumed
when he was persuaded to enter his stay.
Page 464 U.S.
879 , 881
The jurisdiction of the District Court over this action was
based on 42 U.S.C. 405(g), which provides in pertinent part:
"Any individual, after any final decision of the Secretary made
after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the
Secretary may allow."
Under the statute, persons whose benefits have been terminated
must seek judicial review of their termination within 60 days of a
"final decision" of the Secretary. It is my understanding that this
class action was filed on February 4, 1983, and that the class
certified by the District Court includes persons who were entitled
to, but did not seek judicial review of an adverse final decision
by the Secretary more than 60 days before February 4, 1983
(December 6, 1982). As I understand 4(c) of the injunction entered
by the District Court, it grants relief to class members over whom
the District Court had no jurisdiction-specifically, to class
members who had received "final decisions" from the Secretary more
than 60 days prior to February 4, 1983, and who had not timely
sought judicial review. To the extent that the stay entered by
Justice REHNQUIST applies to such persons, I agree that it was
properly entered. These persons' right to seek administrative or
judicial review of their termination decisions had expired, and
they could obtain benefits only by requesting that the Secretary
reopen their cases. However, the District Court had no jurisdiction
to review the Secretary's refusal to reopen these cases. Califano
v. Sanders,
430 U.S.
99 (1977). Hence, the District Court had no jurisdiction over
these persons and should not have granted them relief, see Califano
v. Yamasaki,
442 U.S.
682, 701, 704, 2557, 2559 (1979); Mathews v. Diaz,
426 U.S. 67, 71, n. 3,
1887, n. 3d 478 (1976).
I believe, however, that the application to vacate the stay
should be granted insofar as it applies to persons who sought
judicial review of a termination of their benefits ordered by the
Secretary on or after December 6, 1982, and persons whose right to
administrative review of that termination had not expired before
December 6, 1982. As to these persons, I believe both the waivable
and non-waivable elements of 42 U.S.C. 405(g) were satisfied; hence
the District Court had jurisdiction to enter injunctive relief.
Page 464 U.S.
879 , 882
The non-waivable exhaustion requirement is simply the
requirement that the Secretary have made some sort of decision on a
claim for benefits . "The nonwaivable element is the requirement
that a claim for benefits shall have been presented to the
Secretary. Absent such a claim there can be no 'decision' of any
type. And some decision by the Secretary is clearly required by the
statute." Mathews v. Eldridge,
424 U.S.
319, 328, 899 (1976). As I understand the submissions of the
parties, every class member had returned a questionnaire
distributed by the Secretary and had thereby indicated in writing
that he or she was still disabled and desired benefits. Thus, all
of them had made adequate claims to continued benefits. Their
benefits were terminated on the basis of a regulation that is
assumed for the purpose of this proceeding to be invalid. In
terminating benefits after receiving these questionnaires, it
cannot be doubted that the Secretary knew these individuals claimed
an entitlement to continue to receive disability benefits or that
she then, by terminating their benefits, made a "decision" on the
merits of their claims. That is all the non-waivable element of the
statute requires. As the Court expressly held in Eldridge, " 405(g)
requires only that there be a 'final decision' by the Secretary
with respect to the claim of entitlement to benefits." Id., at 329
(emphasis supplied). In fact, the questionnaires returned by these
respondents made the same claim and received the same decision that
was held sufficient to satisfy the statute in Mathews v. Eldridge.
[
Footnote 2]
Page 464 U.S.
879 , 883
Mathews v. Eldridge also makes it clear that the waivable
element of the statute has been satisfied. As was true in that
case, further administrative review might have enabled a claimant
to recover retroactive benefits but could not have vindicated the
right to have correct procedures followed before the request for
continued benefits was denied. As I understand respondents'
position on the merits, they assert that a recipient need not
respond at all to a claim that he or she is no longer disabled
unless the Secretary first comes forward with some evidence that
his or her condition has improved. There is no way that right can
be vindicated in the administrative process-the Secretary has
already taken a firm position on the issue which the administrative
judges are not free to ignore. [
Footnote 3] Even if the recipient is ultimately determined
to be eligible for benefits for some other reason, the
administrative process cannot vindicate the right asserted in this
litigation, and hence further exhaustion of administrative remedies
as to the claim made in this case is unnecessary. Eldridge, 424
U.S., at 330-332-901. When exhaustion is futile, this element may
be deemed waived even over the Secretary's objection. Mathews v.
Diaz,
426 U.S. 67,
75-77, 1889-1890 (1976); see also Eldridge, 424 U.S., at 328, 330,
900. I agree with Justice REHNQUIST that respondents' contention
that their claim is a "constitutional" one should be disregarded,
but it should make no difference whether plaintiffs' claim is based
on the statute or the Constitution. Even as to a statutory claim
which could not be sustained on administrative review, "further
exhaustion would not merely be futile for the applicant, but would
also be a commitment of administrative resources unsupported by any
administrative or judicial interest." Weinberger v. Salfi,
422 U.S. 749, 765-766, 95
S. Ct. 2457, 2466-2467 (1975). Congress could not have intended
such a result. [
Footnote 4]
Page 464 U.S.
879 , 884
In reaching this conclusion, I express no opinion on the merits
of the underlying controversy because the Secretary has assumed,
for the purpose of our consideration of the stay application, that
the Ninth Circuit's requirement that the Secretary produce some
evidence of medical improvement is sound.
Of course, in considering the application to vacate the stay, it
is also essential to balance the equities. However, as Justice
REHNQUIST recognized, the equities in this case strongly favor
respondents, who are elderly, sick or disabled persons to whom
disability benefits may be crucial. Moreover, as Justice REHNQUIST
also recognized, this is a stay pending appeal to the Court of
Appeals rather than a stay pending disposition of a petition for
certiorari to this Court, and in such a case the granting of a stay
by a Circuit Justice should be extremely rare and great deference
should be shown to the judgment of the Court of Appeals. When these
factors are also considered, I am compelled to conclude that the
stay entered by Justice REHNQUIST should be modified.
In summary, I would grant the application to vacate the stay
insofar as it relates to those class members (a) whose benefits
were terminated on or after December 6, 1982, as well as (b) those
whose right to seek administrative review of the termination of
their benefits had not expired as of December 6, 1982. To the
extent that the Court declines to modify the stay in this fashion,
I respectfully dissent.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
Before the Court is an emergency application to vacate a stay
granted by Justice REHNQUIST pending appeal to the United States
Court of Appeals for the Ninth Circuit. In my view, the merits of
the underlying jurisdictional issues are far from certain, while
the equities clearly favor the class
Page 464 U.S.
879 , 885
of recipients whose disability benefits have been terminated. I
would therefore vacate the stay.
The stay is specifically directed at 4(c) of a preliminary
injunction issued by the District Court, which would have required
that the Secretary reinstate the disability benefits of any
applicant who requests such reinstatement in response to a notice
already distributed by the Secretary. The stayed portions of the
injunction also would have allowed the Secretary to terminate these
benefits, after subsequent hearings, but only if the Secretary
properly applied prior decisions of the Court of Appeals for the
Ninth Circuit when conducting those hearings. See Patti v.
Schweiker,
669 F.2d
582 (CA9 1982) and Finnegan v. Matthews,
641
F.2d 1340 (CA9 1981) (in hearings to terminate disability
benefits on the ground that the recipient is no longer disabled,
the Secretary has burden of producing evidence of an improvement in
medical condition). Thus, the question presented by the application
to vacate Justice REHNQUIST's stay is whether the payment of
interim benefits to approximately 30,000 disabled individuals whose
Social Security benefits have been terminated by the Secretary
should be continued pending final decision on the merits by the
Court of Appeals.
The standard traditionally applied by a Circuit Justice when
considering a stay application is whether there is a reasonable
probability that four Justices would vote to grant certiorari,
whether there is a fair prospect that a majority of the Court would
conclude that the decision below was erroneous, and whether a
balancing of the equities suggests that a stay should or should not
be granted. See Gregory- Portland Independent School District v.
United States,
448
U.S. 1342 (1980) (REHNQUIST, J., in chambers); Rostker v.
Goldberg,
448 U.S.
1306, 1308, 2 (1980) ( BRENNAN, J., in chambers). Included
within this last criterion, of course, is consideration of whether
the applicant has demonstrated that irreparable harm is likely to
result from the denial of the stay. Moreover, given the respect
that is accorded interlocutory decisions of the lower federal
courts, a stay application to a Circuit Justice on a matter still
pending before a court of appeals, and on which the lower courts
have already denied an interim stay, should be granted only in the
most extraordinary cases. See O'Rourke v. Levine, 624, 4 L. Ed. 2d
615 (1960) (Harlan, J., in chambers).
Page 464 U.S.
879 , 886
Justice REHNQUIST accepted the conclusion of the lower court
that the " balance of hardships tips sharply toward the
[recipients]." He nonetheless granted the stay because he was of
the view that the likelihood that the Secretary would prevail on
the various jurisdictional issues raised negates giving controlling
consideration to the irreparable harm caused by the stay. I am not
as optimistic, however, about the prospects for success on the
merits of the Secretary's claims, and therefore I find the
overwhelming hardships imposed on the recipients to be
determinative.
For purposes of the present application, I accept Justice
REHNQUIST's conclusion that there is a reasonable probability that
issues relating to the proper scope of the injunction issued by the
District Court would garner enough votes for plenary consideration
by the Court. I do not agree, however, that there is a fair
prospect of success on the merits of these claims such that the
Court ultimately would vacate or substantially amend the injunction
issued by the District Court. When refusing to issue a stay pending
appeal, the Court of Appeals filed a lengthy opinion clearly
explaining why the beneficiaries in this case satisfied the
jurisdictional requirements of 42 U.S.C. 405(g), 405(h).
Specifically, the court concluded (1) that termination of benefits
by the Secretary satisfies the nonwaivable requirement that
recipients first present a claim to the Secretary, see, e.g.,
Mathews v. Eldridge,
424 U.S. 319, 328- 330,
899-900 (1976); Wilson v. Edelman,
542 F.2d
1260, 1270-1271 (CA7 1976); (2) that the waivable requirement
of a final decision by the Secretary has been met because
regulations made exhaustion of administrative remedies futile or,
alternatively, because exhaustion of the recipients' constitutional
claim is not required, see, e. g., Mathews v. Diaz,
426 U.S. 67, 75-77,
1889-1890d 478 (1976); and (3) that the requirement that appeals be
filed within 60 days of the Secretary's decision has been waived by
the Secretary due to her failure to raise the issue before the
District Court. Although after plenary consideration I might agree
with much of Justice STEVENS' analysis, I do not believe it is
necessary at this time to provide further support for the
conclusions reached by the Court of Appeals. Suffice it to say
that, largely for the reasons stated by that court's opinion, and
for the reasons specified by the large body of case law to which
that opinion referred, I am
Page 464 U.S.
879 , 887
far from convinced that the injunction issued by the District
Court was jurisdictionally barred. See also Kuehner v. Schweiker,
717 F.2d
813, ( CA3 1983). Indeed, even if, as Justice STEVENS suggests,
one or more of these holdings eventually proves erroneous and
thereby eliminates jurisdiction over some members of the class, it
is indisputable that many remaining recipients have properly
presented their claims to the District Court. Accordingly, the
probability of success on the merits is clearly not as certain as
Justice REHNQUIST has suggested.
Nor does the alleged judicial interference in the administrative
process, which Justice REHNQUIST's opinion emphasized, add to the
likely success of the Secretary's appeal. In the situation
presented by this application, it is clear to me that it is the
Secretary who has not paid due respect to a coordinate branch of
government by expressly refusing to implement the binding decisions
of the Ninth Circuit. This is, indeed, the essence of the
recipients' constitutional allegation of nonacquiescence on the
part of the Secretary.
At most, therefore, the likelihood of success on the merits is
very much in doubt. Therefore, when considering whether or not to
grant a stay pending appeal, this factor cannot by itself dictate
the result. Rather, it becomes necessary to balance the equities;
and, in my view, the overwhelming evidence of irreparable harm that
accompanies any termination of disability benefits should be the
determinative factor in this emergency application.
As noted, on this consideration Justice REHNQUIST accepted the
lower courts' assessment of the comparative harms. I agree. Indeed,
as the courts below correctly concluded, termination of the
benefits in this case has caused "deprivation of life's
necessities, further illness, or even death from the very
disabilities that the Secretary deemed [the class members] not to
have." Any financial or administrative inconvenience suffered by
the Secretary cannot outweigh, or even approach, the human
suffering that has been imposed on those disabled recipients of
Social Security benefits who have been wrongfully terminated. And
as the courts below noted, the potential payment of retroactive
benefits after final decision in this case will do little to
compensate the recipients for their current deprivations.
In sum, there is little question in my mind that the
extraordinary circumstances necessary to stay the decision of the
lower
Page 464 U.S.
879 , 888
court cannot be found in this case. Accordingly, I would grant
the emergency application to vacate the stay, and allow the
ordinary appeals process to proceed.
Footnotes
Footnote 1 Once the
Secretary meets her burden of production, the burden of proof is on
the recipient to prove he or she remains disabled.
Footnote 2 With respect to
the non-waivable requirement, the Eldridge Court wrote,
"Eldridge has fulfilled this crucial
prerequisite. Through his answers to the state agency questionaire,
and his letter in response to the tentative determination that his
disability had ceased, he specifically presented the claim that his
benefits should not be terminated because he was still disabled.
This claim was denied by the state agency and its decision was
accepted by the [Secretary]." Id., at 329.
All the members of the respondent class answered a questionnaire
substantially identical to the one Eldridge answered, indicating
that they believed they were still disabled and entitled to
benefits. Thus, each class member specifically presented a "claim."
The only difference between this case and Eldridge's is that in
response to the letter informing Eldridge that he would be
terminated and requesting any additional evidence Eldridge might
choose to submit, Eldridge wrote a letter. Some unidentified
percentage of the respondent class presumably also wrote letters
similar to this one, and in any event the Secretary does not rely
on the absence of a letter to distinguish this case from Eldridge.
Moreover, Eldridge's letter hardly added to the "claim" he had
already presented. In fact the letter did little more than state
that Eldridge believed the Secretary already had enough evidence to
decide the case. See id., at 324; Mathews v. Eldridge, No. 74-204,
O.T.1975, Appendix to Petition for Certiorari at 13-14. This letter
was hardly a new "claim"; Eldridge's "claim" which satisfied the
non-waivable element of the statute had already been made.
Footnote 3 Moreover, "It is
unrealistic to expect that the Secretary would consider substantial
changes in the current administrative review system at the behest
of a single aid recipient . . . in an adjudicatory context." 424
U.S., at 330.
Footnote 4 It is not clear
that the Secretary disagrees with my view. In her memorandum
opposing respondents' application to vacate the stay, she accepts
the propriety of the District Court's injunction as to persons that
have exhausted their administrative remedies within 60 days of the
filing of this action, and argues, correctly in my view, that the
stay was proper as to persons whose right to review had expired
more than 60 days before the filing of the suit. She goes on to
argue only that the injunction should not apply to persons who are
still pursuing their administrative remedies at this time. She does
not explicitly quarrel with my conclusion that the District Court's
injunction was proper as to all other persons whose right to seek
administrative review had not expired as of December 6, 1982.
Therefore, it appears that my only difference with the Secretary is
that I would not require persons currently seeking administrative
review to exhaust what is a futile remedy.
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