HOPKINS v. COHEN

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Argument of Harris Weinstein

Chief Justice Earl Warren: 26, Raymond Hopkins, Petitioner, versus John W. Gardner, Secretary of Health, Education, and Welfare.

Mr. Weinstein.

Mr. Harris Weinstein: Mr. Chief Justice and may it please the Court.

Yesterday, as the Court adjourned, I was reviewing briefly the administrative procedures followed by someone who has applied for and been denied Social Security benefits.

To summarize them quickly, there are essentially two steps in the administrative procedure: a hearing examiner and Appeals Council.

There's an opportunity to present evidence at both stages.

There's an opportunity for counsel at both stages.

In fact, as the record in the District Court here showed, Mr. Hopkins in this case was represented for the first time at the appeal stage, although he had written notice at least of his right to counsel at the lower stage and he did testify at the hearing that he could read.

Now --

Justice Potter Stewart: But it's counsel to be chosen and retained by him.

Mr. Harris Weinstein: That is correct.

There are --

Justice Potter Stewart: There's no provision within the agency to get the free legal help or advice, is there?

Mr. Harris Weinstein: No, there is not, Mr. Justice Stewart, but I was interested to learn last night from the annual report of the legal services program of the Office of Economic Opportunity that, in the most recent fiscal year, they provided assistance to something over 3,000, I think the number was 3,200, applicants.

And, while the statistics don't show the stage which that occurred, I would infer that it occurred at some administrative level since the number of pending Court cases don't, I think, reach that number.

But, there is --

Justice Thurgood Marshall: Is that for the whole country?

Mr. Harris Weinstein: I beg your pardon?

Justice Thurgood Marshall: The whole country, 3,000?

Mr. Harris Weinstein: 3,000 for the whole country and OEO, and I don't know how it breaks down geographically.

Justice William J. Brennan: And you recommend under this statute?

Justice Byron R. White: But just under this statute, have you claim it?

Mr. Harris Weinstein: Under Social Security generally.

I do not know how many of them with disability, how many were old age or survivors, but I-- the number was 3,200-and something.

And --

Justice Hugo L. Black: You said they survived.

Who is “they?”

Mr. Harris Weinstein: The neighborhood legal services program of the Office of Economic Opportunity.

The line in their report, just listing on categories of welfare problems, lists Social Security matter or something of that euchring gives a number like 3,200 cases during a fiscal year.

Justice William J. Brennan: I suppose it doesn't show whether these claimants found their way to the OEO office on their own or whether they were sent there by the agency, does it?

Mr. Harris Weinstein: No.

No.

I would not hazard to guess on which happened.

Justice William J. Brennan: Yes.

Mr. Harris Weinstein: I would say --

Justice Hugo L. Black: What is -- what is the responsibility of the examiner in the situation?

Is he -- is it a part of his responsibility to look after the interests of the claimant?

Mr. Harris Weinstein: I would think, certainly, it is and I think that what I have been able to uncover since yesterday is, for example, instructions to personnel and the field officers of the Social Security Administration.

And, there's a paragraph of instruction that is called “explaining hearing,” and they are told to give the applicant who is dissatisfied with what's been done with his initial application oral advice together with the written advice about what his rights are.

And, one of the sentences in that states as follows: inform him that a hearing is a semiformal proceeding before a hearing examiner wherein he may present evidence, witnesses, and oral or written arguments and may appear with an attorney or other representative.

The statute, by the way, makes allowance for representation by non-attorneys.

And, also in the instruction, it tells the employee of the department to follow in the oral presentation a booklet that is entitled “Right to Appeal” that I would presume is also given to the applicant and describes generally what the review procedures are.

Justice William J. Brennan: Incidentally, what's the panel that he is reviewed?

Mr. Harris Weinstein: There's an Appeals Council of the Department of Health, Education, and Welfare.

Justice William J. Brennan: I mean, is that here in Washington?

Mr. Harris Weinstein: It is here in Washington.

As with most administrative appellate hearings, the usual course is to review on the papers.

The applicant, if he wants to, may request a personal appearance of himself or by his attorney.

Justice William J. Brennan: But there's no panel that functions outside of Washington.

Mr. Harris Weinstein: No, only the hearings, Justice Brennan.

Well --

Justice Abe Fortas: Are those documents, to which you just referred, on file with us?

Mr. Harris Weinstein: They are not, Mr. Justice Fortas, but we could certainly launch them.

Justice Abe Fortas: At first I -- myself, would be very grateful if that would be done.

May I ask you this, are the examiners chosen under -- pursuant to the provisions of the Administrative Procedure Act or are they, in other words, selected under the Civil Service Procedures or are they employees of and solely responsible to the agency?

Mr. Harris Weinstein: While I would assume the former, I don't know and, if the Court would wish, I would inform the Court --

Justice Abe Fortas: Well, I would assume the latter and I do wish you would --

Mr. Harris Weinstein: We will do that, Mr. Justice Fortas.

Justice Abe Fortas: Do that.

Now, these hearings are provided by statute, aren't they?

Mr. Harris Weinstein: Yes.

Justice Abe Fortas: That is that they are not matters of administrative race but Congress has provided for them, is that right?

Mr. Harris Weinstein: But I believe that is correct.

Justice Abe Fortas: But is it your understanding that they are or are not subject to the provisions of the Administrative Procedure Act?

Mr. Harris Weinstein: The only knowledge on that goes to the procedures for, if any, for reviewing attorney's fees granted by the administrators for representation at the administrative levels.

Justice Abe Fortas: I'm talking about the substantive hearing too.

I'm talking about the --

Mr. Harris Weinstein: I cannot -- I cannot answer that, Justice Fortas.

We did not brief that point since the point -- since the issues did go to the legal fees allowable in District Courts, but we'd be happy to provide the Court with that information in a supplemental document.

Justice Abe Fortas: Well, I'd appreciate it, if that's alright.

I'd very much appreciate that.

Chief Justice Earl Warren: Please do that.

Justice William J. Brennan: And, in that connection, Mr. Weinstein, I think you told us yesterday that whatever this proceeding is-- this judicial proceeding is, the determination is made on the agency record.

Mr. Harris Weinstein: Yes.

Now, there are three possible determinations, Justice Brennan.

One is to affirm, one is to reverse, and one is to remand to take more evidence or for reconsideration in the administrative level.

And so, the record wallet is closed for purposes of the District Court's decision on the merits.

The District Court may direct a reopening of the record.

Justice William J. Brennan: But, I gather, really crucial to the claimant's whole case is the kind of record that's made in the agency, isn't it?

Mr. Harris Weinstein: To the factual part of it.

Of course, I think that a large measure of the litigation that's taken place over the last five or seven years has gone to the legal standards in this area determining disability and the Courts, I think, showed a rather short disagreement, at least in some circuits, with the agency's interpretation.

Now, there was a petition for certiorari pending, but this was resolved by Congress in the recent Act which, I believe, in Section 158 (b) of the Act became effective January 2 of this year overruled the Court's that had disagreed with the agency's interpretation of disability.

And so, I think it's hard to gauge or really to say that the factual determinations have been largely dispositive because there has been this legal dispute and, as I say, that it had resulted in a split among the circuits that Congress has now resolved.

Justice William J. Brennan: Do you know -- do you know when evidence is taken at these hearings as a verbatim transcript?

Mr. Harris Weinstein: Yes.

I had been under the impression that the -- yesterday that the hearings had been brought to this Court.

Now, I've checked this morning and found that, although they are in the record of the District Court, they had not been brought forward on appeal because the issues had gone solely to the maximum attorney's fees and I, with permission of the other side, I assume we could have this sent forward to this Court.

What it shows is a record of 129 pages, including transcript, exhibits, the hearing examiner's written decision, the appeal counsel's refusal to go further while looking at additional evidence, the brief that Mr. Sharp submitted to the appeals counsel, and --

Justice William J. Brennan: Are we to understand then that such a transcript, under agency regulations, is required when the hearing is held?

Mr. Harris Weinstein: Yes.

And I understand that as a matter of course this type of booklet or exhibit would be attached to the agency's answer to the complaint to the District Court.

Now, this particular transcript shows 55 typed pages of evidence at a hearing lasting perhaps two hours, but there is the same type of transcript that one would have in a Court proceeding.

Justice Hugo L. Black: Is the only question presented in this case is the amount of fees to be paid a lawyer?

Mr. Harris Weinstein: The question, I think, is even more limited than that, Mr. Justice Black.

It's the maximum amount of the fee that a District Court can direct for representation before that Court.

Justice Hugo L. Black: That is whether it can be measured by the fee or the amount paid to claimant alone about the other beneficiaries --

Mr. Harris Weinstein: That's --

Justice Hugo L. Black: -- a family beneficiary claim.

Mr. Harris Weinstein: That is correct, Justice Black.

Justice Hugo L. Black: That's the only issue that's on defense that is presented in any way but --

Mr. Harris Weinstein: That is right.

There's no contention in this case that there was any inadequacy of procedure or any inadequacy of representation and, in fact, I do not think that the Court decisions-- the earlier Court decisions suggest that.

For example, the Eighth and Ninth Circuits have each, in earlier cases, gone over records where the applicant was not-- chose not to have counsel at any stage through the Court of Appeals, and commented on the meticulous nature of the hearing examiner and the administrator's actions.

And, if the Court is interested in those decisions which are not in our brief, the Eighth Circuit is Brasher against Celebrezze in 340 F.2d at page 413 and the Ninth Circuit decision is Paul against Celebrezze at 337 F.2d, page 352.

Justice William J. Brennan: Do you say 413 of the first case?

Mr. Harris Weinstein: Page 413 and 340 F.2d.

Justice William J. Brennan: Thank you.

Justice Hugo L. Black: And the amount on which the government claims this fee must be computed is the amount paid to the person who's actually injured rather than to his family?

Mr. Harris Weinstein: That is correct, Justice Black, and we reach this I think on a two-pronged argument, one on the basis of the-- what the committee report says that the Congress had in mind and the other is on our reading of the plain language of the statute.

The legislation arouse at-- after a time when the Courts had adopted the practice of approving fees in these cases, generally according to contingent fee arrangements that the applicant had entered into with his counsel, often going as high as 30% or 40% or 50% of past-due benefits, and it was at this point that the legislation was introduced and we think for the purpose of cutting back on this Court practice.

And, the committee report which we've set forth at pages 10 and 11 of our brief has the following Act.

It has come to the attention of the committee that attorneys have, upon occasion, charged what appear to be inordinately large fees for representing claimants in 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 the approved benefits.

Since litigation necessarily involves a considerable lapse of time, in many cases large amounts of accrued benefits, and consequently large legal fees are payable if the claimant wins his case.

And then, there's a sentence that we quote that, like the two sentences that Mr. Sharp referred to yesterday, paraphrase the statute.

And -- but from this --

Justice John M. Harlan: Do you happen to know whether the contingent fee arrangements before the statute was passed made the contingency dependant on the recovery -- total recovery or on the recovery of your claimant?

Mr. Harris Weinstein: I can only speak with precision to the one in this case, Justice Harlan, and that was signed by both, I believe, Mr. Hopkins and Mrs. Hopkins.

And that probably, it went to both.

I don't recall the precise language.

Let's -- I think that the language is, at best, ambiguous.

It says that Mr. Sharp isn't hired to prosecute his claim, referring to Mr. Hopkins, but then the document is signed by both Mr. Hopkins and Mrs. Hopkins.

Justice John M. Harlan: Do those contracts have to be filed with any -- with the agency?

Mr. Harris Weinstein: I do not believe so if it takes place with respect to Court proceedings.

When the fee is charged for proceedings before the agency, then it has to be subjected to the approval of the Secretary of Health, Education, and Welfare and it's a misdemeanor to charge more than he approves.

Chief Justice Earl Warren: Were there children involved here too?

Mr. Harris Weinstein: There was a wife and two children.

Chief Justice Earl Warren: Did the wife and the husband presume to sign it on behalf of the children too?

Mr. Harris Weinstein: The document, on its face, I think is silent.

Chief Justice Earl Warren: I beg your pardon?

Mr. Harris Weinstein: The document, on its face, I believe is silent.

I don't-- I do not see the names of the children and, although it does say that the contract is between Mr. and Mrs. Hopkins and Mr. Sharp.

Chief Justice Earl Warren: Mr. Weinstein, if I may interrupt you just a moment.

Again, when I ask you that question about the examiner, what I really want to know is this.

What is the function of the examiner when he takes the evidence in these cases?

Is he sitting there as a judge in an adversary case deciding between the claimant and the agency or is he there to help and to see that the claimant gets all the facts in the case in the record?

Mr. Harris Weinstein: Mr. Chief Justice, he surely sits there to make a decision.

Chief Justice Earl Warren: I beg your pardon?

Mr. Harris Weinstein: He surely ma-- sits there to make a decision and he does give -- render a written decision.

I don't know and if in terms of his instructions or the Secretary's conception of the hearing examiner's role to what extent he is expected to seek out evidence on behalf of the claimant, but we would certainly include this information in what we would provide the Court.

Chief Justice Earl Warren: Because I know, in some workman's compensation jurisdictions, the examiner there is suppose to look after the interest of the claimant.

That's why they don't encourage lawyers to be in that initial hearing and the examiner, himself, is suppose to see that the claimant gets a fair deal, gets his facts brought out properly and that no advantage taken of him.

And I just wondered if that same principle was in this situation.

Mr. Harris Weinstein: Well, I do not think that there's been any contention that these proceedings have, in a general way, been unfair to claimants.

Chief Justice Earl Warren: Well, I know.

Mr. Harris Weinstein: Even when there has been no counsel present.

Chief Justice Earl Warren: But if you have -- but if you have an ignorant man, we'll say or don't use that harsh word, let's just say an unschooled man who comes to a hearing of this kind and he faced with the agency and he needs to prove his claim, he's not capable of doing it.

And, I just wondered if it was a duty of the hearing officer to help him an to see that the facts are developed and that it's all in the record there so that a fair appraisal can be made or whether he's there as a judge in an adversary proceeding and letting each party put in its own evidence.

I don't know.

I'm just -- I think it would be enlightening though to -- for the Court to know that.

Mr. Harris Weinstein: Well --

Chief Justice Earl Warren: If you don't know, why, there's no use in taking time on it now.

Mr. Harris Weinstein: Alright, sir.

In view of this legislative history which was least intended to cut back the fees then being approved and paid through Court actions, the Congress adopted Section 206 (b)(1) of the statute, using the word “claimant.”

And, as I suggested yesterday, the very narrow question of interpretation in this case and the only question presented in this case comes down to what does the word “claimant” mean in this statute and we suggest, in terms of statutory interpretation, there are several clauses in the statute that modify the word “claimant” and conclusively define it in a way that can mean only the plaintiff who happens to be before the Court in that case, that is the head of the family in this case, Mr. Hopkins, and that it does not include anybody else.

We begin this analysis of the language of the statute with the first phrase.

The statute begins, “whenever a Court renders a judgment favorable to a claimant under this subchapter,” we suggest to the Court that the language, “a judgment favorable to a claimant” is something that ordinarily would refer to a plaintiff before a Court.

He's the person on whose behalf and whose favor a judgment is rendered.

Then, the statute goes on to speak of “claimant under this subchapter who was represented before the Court by an attorney,” and we suggest that there are two points in that phraseology.

First, the language “before the Court.”

It suggests the claimant is the person who is before the Court, the person who is a party.

Justice John M. Harlan: Supposing the dependant could join him, is there anything written on that?

Mr. Harris Weinstein: If they have a justiciable controversy with the Secretary, Mr. Justice Harlan, they could certainly join as parties.

Justice John M. Harlan: Well, they have a derivative -- they have a derivative controversy.

Mr. Harris Weinstein: They have a derivative controversy but if, for example in this case, the Secretary agreed that the dependants qualified for benefits, if the principal claimant benef -- qualified, they would have no controversy.

They would be allowed to come into Court under the statute to represent the principal claimant if they wanted to.

They could -- they are essentially given standing to assert his rights on his behalf, but they would still not be the claimant represented before the Court on whose behalf a favorable judgment is entered.

Justice Abe Fortas: I wonder if you don't have two questions.

One who is the claimant and accepting your point but the claimant is the claimant, Mr. Hopkins, here.

They -- don't you have a second question which is, what is the claimant's claim on the basis of which these may be allowed?

And, Mr. Hopkins claim here, I take it, was for payments not only to himself but also to his wife and to his children.

Is that right?

Mr. Harris Weinstein: Not in this Court action, and the claims for the wife and children are in separate documents.

The checks for the entire family come in two separate amounts: one for the children, and one for the husband and wife together.

Justice Abe Fortas: Yes, but this Court action is, in effect, a review of the administrative denials, is that right?

Mr. Harris Weinstein: Which in -- Sir, involved only the father, Mr. Hopkins.

There has been no administrative denial of the rights of the dependants.

Justice Abe Fortas: When Mr. Hopkins proceeded administratively, he proceeded only on behalf of himself?

Mr. Harris Weinstein: That is correct.

That's the only pers --

Justice Abe Fortas: What makes you say that?

Why do you say that?

Why -- it seem to me that if the statute provides that Mr. Hopkins, if he's disabled, is entitled to benefits and that-- derivatively from that, benefits also go to his wife and his children.

That it's certainly arguable that what Hopkins was seeking when he went befor the agency and without counsel, was payment to himself and to his wife and his children.

Mr. Harris Weinstein: Justice Fortas --

Justice Abe Fortas: We don't know, do we?

Do we have -- did he say anything?

I gather, he's not an uneducated man.

What is he, a laborer?

Mr. Harris Weinstein: He had been a crane operator, I believe.

I believe that --

Justice Abe Fortas: But, do you know what he said --

Mr. Harris Weinstein: Grade school education.

Justice Abe Fortas: What did he say when he went before the agency?

Did he say he was seeking to establish his rights or -- and claim payments to himself or on behalf on himself, his wife, and his children?

Mr. Harris Weinstein: The only thing that he could've been saying is his rights.

His --

Justice Abe Fortas: Why?

Mr. Harris Weinstein: -- children and wife's status as dependants have previously been approved.

The termination of the benefits --

Justice Abe Fortas: Yes, but his claim if what -- if he won his case like a plaintiff in a lawsuit, if he won his case they would follow, from the judgment in his favor, certain consequences.

And, those consequences would be payments not only to him but to his wife and children.

Am I right about that?

Mr. Harris Weinstein: In this case they would be, Justice Fortas.

And, a ques -- but I think the word “claim,” to begin with, is a case that has a generally accepted meaning in the law.

The claim the formal -- listed on the formal request for hearing here, the claim given in the caption of the transcript was only the case of Raymond Hopkins and the question whether he himself was disabled.

Now there are two -- I think it's important to recognize here that there are two ways procedurally in which the dependant's claims can be disposed of.

In this case, it happened that the dependant status was approved before Mr. Hopkins' own claims were terminated, so that they were all approved.

They were all receiving claims.

They were all receiving benefits on their original claim.

All benefits were then terminated because the -- in the Secretary's view, Mr. Hopkins' disability had terminated.

When the Court directed the Secretary to resume Mr. Hopkins' benefits by finding that he was disabled, the result was the Secretary knew that Mrs. Hopkins was indeed the wife of Mr. Hopkins, that there were these children, that they all satisfy the necessary requirements of age to quo -- the statute establishes and, therefore, Mr. Sharp could say that, in this case, it followed automatically that the benefits were resumed.

But, another case that could equally arise would be saying the circumstances where the Secretary found at the very beginning that there was no disability.

Therefore, the Secretary would not ordinarily have reached the claim of the dependants.

He wouldn't have determined whether there was a marital relationship.

He wouldn't have determined whether the claimants satisfy the requirements of age.

In that situation, the judgment in favor of Mr. Hopkins would've only established one of three essential facts and two would not yet been established.

They couldn't be litigated in the Court as a claim in the Court until Mrs. Hopkins and the children had gone through the administrative procedures.

Presumably, they would benefit and the Secretary would have reached the same determination and allow the claims administratively with no need for asserting a dispute.

Justice John M. Harlan: Assuming that you prevail in this case, would there be any reason why checking -- in order the amount of work that may continue these contract with the dependent's satisfy from one person that against the contract and many other things you consider upon?

Mr. Harris Weinstein: I don't think there would be any reason why he could not, Justice Harlan, to the extent that he charged a fee to the dependants for administrative proceedings.

He would have to have that fee approved by the Secretary.

But, to the extent that it was approved, he could collect it.

He could --

Justice John M. Harlan: Directly against the father?

Mr. Harris Weinstein: Yes, and up to -- under the new legislation, which I've misspoken myself yesterday, it is effective now.

It is not postponed until this summer.

He could -- when the fee is approved by the Secretary, it would be to the extent of 25% of the past-due benefits.

It would be withheld from the fund that the Secretary had.

Justice John M. Harlan: Can the lawyer get disbursement from part of the fee?

Mr. Harris Weinstein: The statute does -- no way speaks to disbursements or expenses, and our assumption is that they're allowable in addition to the fee, although they might not be collectable out of the sum, but the law-- as we read the statute, the lawyer legally can collect his disbursements in addition to this fee and could collect them directly from beneficiaries.

Justice Hugo L. Black: Are there any dependant to whom money is separately payable who are overage?

Mr. Harris Weinstein: This might -- I don't know the status, say, of a separated wife.

I assume she'll be entitled to benefits.

Justice Hugo L. Black: Well, if she has started anything under the law as a dependant, separately.

Mr. Harris Weinstein: Except -- I don't know the precise answer to that, Justice Black.

I think she is.

Certainly, say, a child who is a student and under the age of, I think, 22 --

Justice Hugo L. Black: Under the age of 22.

Mr. Harris Weinstein: 22, is entitled to benefits and the children's checks, as this record shows, whatever he age of the children, those amounts come in a separate check.

Justice Hugo L. Black: To whom?

Mr. Harris Weinstein: Addressed to the children.

Now, I assume, for minor children, they go to the parent as guardian, but this record in the letter from the Social Security Administration shows that they will -- the checks come in two separate amounts: one to mother and father, one for children.

Justice Hugo L. Black: What governmental agency pays money to a wife where her husband is injured, as the de -- the wife as a dependant, which agency and for what?

Mr. Harris Weinstein: If there is a disability, this agency.

This particular claim here is a claim for disabling injury to the husband.

Justice Hugo L. Black: For what?

Mr. Harris Weinstein: For a disabling injury to the -- I do not -- I don't know whether it was work connected.

It does not have to be, but it hinges on this -- the fact of disability.

I think there is also an additional matter in the statute that helps us define a claim because the statute speaks of the limit on a fee for such representation, and such representation refers back to the representation before the Court of the claimant.

And, the statute goes on to s -- in setting the maximum amount of the fee, says that it shall not be in excess of 25% of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

Now, here again, we suggest that the word “entitled” is a word with a distinct legal meaning.

It should mean claim of right and the claimant, in this case Mr. Hopkins, is the only person who has a fixed claim of right by reason of the Court's judgment.

Justice Hugo L. Black: I don't understand that-- what you previously said.

I understood you to say that the children have a separate amount of money payable to them.

Mr. Harris Weinstein: If they prove additional facts that were not liti -- in controversy before the Court.

The Court's judgment --

Justice John M. Harlan: That is just to prove that they are the children.

That's all.

Mr. Harris Weinstein: That they are the children and they are the appropriate age.

Justice John M. Harlan: Yes.

Mr. Harris Weinstein: And then, to determine the amount to which they're entitled, they may have to show something about whether they have other income.

Justice Hugo L. Black: Well, why wouldn't they be claimants?

Mr. Harris Weinstein: They are claimants but they are not the claimant before the Court, I would suggest, Justice Black.

Justice Hugo L. Black: I thought that all claimants decided together.

Mr. Harris Weinstein: They are not, Justice Black.

They may or may not be.

If the claim --

Justice Hugo L. Black: Well, suppose they may be.

Mr. Harris Weinstein: If they are in fact decided together, if they do in fact litigate together in the District Court, then the attorney's fee, if he represents them all, can be measured by the total amount of the benefits that they all secure by reason of the Court judgment.

Justice Hugo L. Black: Well, I hadn't understood that up to this time.

Mr. Harris Weinstein: I'm sorry, sir.

Perhaps that's because in the ordinary case the only matter that is litigated before the Court is the bro -- the claim of the, as in this case, the father of one claimant.

Justice William J. Brennan: Well, are you saying then, Mr. Weinstein, that all an attorney has to do is join the dependants as claimants when he goes to the District Court?

Mr. Harris Weinstein: I don't think it's as simple as that, Justice Brennan, because I assume they have to have a justiciable controversy and they have --

Justice William J. Brennan: Well, I don't quite understand how it arises.

Do I correctly understand that, under the statute, the dependants' payments depend upon a finding of disability of the father?

Mr. Harris Weinstein: They depend on a finding of disability, a finding of relationship, and a finding of age.

Justice William J. Brennan: Well, under what circumstances then would the wife and children ever be made parties?

Mr. Harris Weinstein: Wherever the Secretary disputed the relationship or the age.

The -- first, this type of litigation in itself represents perhaps 3% of all Social Security claims, but there are a variety of cases where, say, the relationship of parent and child might dis-- be disputed.

One example of that the Court might be interested in is a case called Chernack in 360 F.2d, I don't recall the page citation, where the question was whether there had -- this was a widow's claim for benefits that was allowed.

And then, there was a child.

It was the father's child but not the mother's child, and the issue was whether the child had been adopted before death of the father and, therefore, entitled to benefits under the statute.

But, there could be this kind of controversy.

There are controversies as to whether there's a marriage.

If they don't all come together in one case at the same time, they will not all come before the Court at the same time.

Justice Hugo L. Black: Well, weren't they all not together in this case?

Mr. Harris Weinstein: They were not, Justice Black.

In this case, the Secretary had no disagreement with the proposition that Mrs. Hopkins was a lawful wife, these children were at the proper age to collect benefits.

Justice Abe Fortas: Now, Mr. Weinstein, before Mr. Hopkins won his lawsuit, he and his wife and dependants children were receiving about something under 9 -- $8,000.

Then -- and I mean to say before the payments were stopped, then the payments -- let me withdraw that and rephrase it.

Mr. Hopkins' wife and children were receiving benefits under the Act.

Then, the payment of those benefits was stopped because of the conclusion of the agency that his disability had seized.

Then -- so, Mr. Hopkins' wife and children were receiving zero.

Then, the proceeding was brought and, in the Court, Mr. Hopkins' lawyer managed to win the case.

Then, Mr. Hopkins was entitled as -- and his wife and children were entitled to receive approximately $8,000 past-due payments, and there was one letter written to Mr. Hopkins, which appears as appendix 5 in the record before us, one letter in which it was said that “we're sending you a combined payment -- a check for combined payment for you and your wife, $5,000, and the children's check will be sent to you shortly.”

Is it -- so that, simple, perhaps over simplified, lawyer's way of looking at this thing, but Mr. Hopkin -- the benefit that Mr. Hopkins received as a result of his claim was approximately $8,000 and the ceiling fixed by the Act would be 25% of that total recovery.

And, that's the simplicity of it and I admire the -- it seems to me, and I admire your -- the way you've gone about this to arrive in another construction of it.

But, a claimant makes a claim and what happened here, as a result of winning the litigation, was that not only Mr. Hopkins but his wife and children received moneys.

And then, the statute says that the lawyers -- that the Court may allow the lawyer a ma -- a fee up to 25% of the recovery.

Mr. Harris Weinstein: I would suggest this, Justice Fortas, that the statute -- the statutory terms, I don't think, can be read one way for this kind of case where the Secretary is in an -- in advanced higher -- agreed that the wi -- the woman and children are the wife and children of the proper age and, yet, a different reading be reserved for the case that would have arisen.

Justice Abe Fortas: As a matter of fact, I don't understand that because the lawyer has a contingent arrangement with the client.

It doesn't say -- you don't complicate it very much.

You find out what the judgment of the Court was, what the client received, what was the recovery in the litigation, and then you take a percentage of that.

Now, there may be other consequences that have to be established in other litigation, and I should think it would be normal to read the language of Congress in the ordinary sense that lawyers are accustomed to.

And, when Congress said the 25 -- Congress talked about the 25% limit, it was thinking in terms of the total recovery in that litigation.

Mr. Harris Weinstein: I think that our disagreement is in terms of whether or what is the significance of the phraseology that Congress has used, and Congress has spoken of the person before the Court who becomes entitled to something by reason of the judgment.

And, in terms of the significance of the contingent fee arrangement, our understanding of the legislative history is that Congress was quite dissatisfied with the Court-approved contingent fee arrangements and that Congress was trying to put on the Courts the responsibility of approving fees within a fixed limit that did not eat into the award to the claimants.

Now, I think one consequence of this --

Justice John M. Harlan: Would you define that language, as your adversary referred to, who were those two gentlemen with paychecks on there?

Mr. Harris Weinstein: Well, one was from the committee report in the statute by statute anal -- the section by section analysis.

Justice John M. Harlan: How many lawyers are on it?

Mr. Harris Weinstein: I beg your pardon?

Justice John M. Harlan: How many lawyers are on it?

Mr. Harris Weinstein: I don't know.

I'm sure there are a number.

Justice John M. Harlan: Find out.

Mr. Harris Weinstein: But, I would al -- the statute, that language and the statement of Mr. Mills on the floor is not significantly different from the committee language that we've set forth.

Justice Hugo L. Black: As I gather from you, this law, insofar as payments are concerned to the man who's injured and his beneficiaries, is very much like federal employer's liability, I think.

They are the -- you have certain amounts for the husband if he's injured or killed, certain amounts for his beneficiaries, and it's all conducted in one litigation and contingent fees are constantly used in that field which I -- and I'm wondering if you found whether there's been any claims like this.

Mr. Harris Weinstein: I think our disagreement, Justice --

Justice Hugo L. Black: The nature with FELA.

Mr. Harris Weinstein: I do not know whether there is anything like this, any claims of this nature or litigation of this nature under FELA.

In our --

Justice Hugo L. Black: The claims are -- the claim is of this nature because they depend on children getting a certain amount.

Mr. Harris Weinstein: I think one difference is that, in this case, the claims are not always or usually litigated together because a controversy may only go to one part of the claim or any controversy, say, the children might have might be resolved at the administrative rather than in the Courts -- at the Court level.

And, I think that one consequence of the -- what I would call the broader reading of the statute for which the petitioners argue is that where there is a separate controversy between the wife and the Secretary where she proceeds differently in the administrative process, where as -- if 25% of her funds have been paid to the lawyer who represented her husband, where -- from where is the Secretary going to satisfy the fee that the statute tells him to allow to whoever represents the wife.

Now, I think what the statute does is give the wife and the children and the husband their options.

Each can or cannot hire a lawyer to present their particular facts.

The husband can hire a lawyer to present his facts on issue of disability.

Then, the wife and the children can determine whether it's worthwhile to pay additional money to have a lawyer present the question of whether they are wife and children and whether they are of the appropriate ages.

And if -- if they choose to present that controversy through a lawyer, then there ought to be, and Congress in the recent legislation contemplated that there would be, funds left to pay that lawyer to encourage him to come in.

The -- if, on the other hand, they ch -- decide that these facts are so clear and simple, as they apparently were in this case, it would seem to us that Congress has taken the view of not requiring them to pay a lawyer because these facts aren't subject to controversy.

Now, I think perhaps --

Justice John M. Harlan: Of course --

Mr. Harris Weinstein: Yes.

Justice John M. Harlan: -- this is, I take it, Congress had gradually fixed the fee.

Mr. Harris Weinstein: But it is fixing at maximum fee.

Justice John M. Harlan: At maximum, but still if word gets out, your adversary in lieu of this particular case would be in order to the amount of effort to spend in this Court will have control over it.

Mr. Harris Weinstein: I think that it's true, Justice Harlan.

Justice John M. Harlan: It's not an open-ended issue as well.

Mr. Harris Weinstein: I -- I think it's true, Justice Harlan, that their case to a very great extent depends on the proposition that the reading that we intend for results in fees that are too low.

Now, of course, one consequence of their reading, I imagine, would be that single claimants would never be represented because it would follow from their reading that the fee for representing a bachelor or a widow or a widower would be less than half of the fee for representing somebody who was married with two children even though the controversy might be of the same nature.

But, beyond that --

Justice Potter Stewart: Did he say that they would never be represented?

Mr. Harris Weinstein: Well, the contention -- let's say that the representation would be inhibited, Justice Stewart.

Their argument is that --

Justice Potter Stewart: If that same argument on for any contingent fee, I suppose no bachelors could ever get a lawyer to represent him if he was rundown by an automobile, on your theory.

Mr. Harris Weinstein: I think their theory, as I understand it, is that the fees under the reading of the Sixth and Seventh Circuits have such a low limit that it is not economic for attorneys to take these cases, that they need the higher limit for the cases to be economic.

If that's correct, the lower limit that they say is inadequate will always apply unless they are dependants.

I'm assuming, by their argument, that this would inhibit at least the representation of single people and we would suggest that that is not a result that Congress likely wanted to bring about.

But, beyond that, I think that if you look at the amount of fees that had been allowed here, if you compare it to the amount of work that is ordinarily involved and fees allowed in other situations, that it -- that you'd -- it appears that this argument is not one that is clearly right.

It's not one that is clearly wrong and it's one that belongs in Congress if it hasn't already been lost there.

These fees here are only for representation in Court.

To the extent that there has been representation before the Secretary, the lawyer can't go to the Secretary and apply for a separate fee.

Justice John M. Harlan: Incidentally, it might be irrelevant at the administrative level, a man who were represented by a non-lawyer, is that non-lawyer entitled to fees.

Mr. Harris Weinstein: Yes, subject to the same restrictions of approval.

Now, as we pointed out --

Justice Abe Fortas: But he gets a fee only if he wins.

Is that right before the agency, too?

Mr. Harris Weinstein: Yes, that's right, Justice Fortas.

Justice Abe Fortas: So, there's no possibility of two fees because if he wins once, that's it.

Is that right?

Mr. Harris Weinstein: There had been some cases, for example, where there'd been a Court proceeding followed by a remand.

I believe the Courts have contemplated a fee from the Secretary for his -- for the work there in front of the Courts because -- but as -- we have collected some statistics which we set out in a footnote in our brief and the median fee for these representations, under our reading of the statute, has been running $800.00 or $900.00 for a proceeding that is limited essentially to a motion for summary judgment on preexisting record.

The Fourth Circuit, which has taken what it considers a broader reading and what it says it is rejecting a literal reading of the statute, has so far refused to allow a fee as high as the petitioners argue for.

In fact, most recently, the case of Redden, I believe it is, where the Fourth Circuit originally rendered the decision that resulted in the conflict with this case was back into the Fourth Circuit on the allowance of the fee and the District Court had allowed a fee of 25% of the $16,000-benefits payable to the whole family.

And, the Fourth Circuit said this is just too high and they cut it back to something around 2,200 and the 25% of the -- only the father's benefits.

Justice Hugo L. Black: But they were acting within their authority, were they not?

Mr. Harris Weinstein: Oh, surely.

But I -- the point it would like to make, Justice Black, is that the Courts that have adopted the petitioner's view of the statute have not agreed so far that higher fees are necessary to secure adequate representation.

Justice John M. Harlan: And the result from the case that the Court would exercise some discretion for this person, whereas your view puts a limitation on the Court in a situation where, as you yourself said, the position you're taking might lose on the --

Mr. Harris Weinstein: I think, Justice Harlan, that there's no question about the Court's exercising discretion.

The problem is the limits within which that discretion is to be exercised and, as -- for the reason we've pointed out, we would urge the --

Justice John M. Harlan: All I'm saying is it does not mean that your adversary is taking -- it does not mean that automatically every lawyer is going to get 25% of the whole lot.

Mr. Harris Weinstein: We would hope not and the Courts, at least the Court Circuit, has not -- we would agree, has not done that.

Justice Potter Stewart: And whatever view is taken necessarily a good many lawyers are going to work for nothing because they're not going to win their cases.

So, when you're talking about the $800-average, that's just for the lawyers who won their cases.

That does not include the same lawyers who practiced in this area and lost.

Mr. Harris Weinstein: No, that's certainly right, Justice Stewart, and we would assume that these are the factors that Congress also kept in mind in establishing this limit.

And, for the reasons we've set forth, we believe that limit is as the Sixth and Seventh Circuits said.

Justice Byron R. White: Can I ask you, Mr. Weinstein.

Mr. Harris Weinstein: Yes, Justice White?

Justice Byron R. White: If you perhaps covered this.

Is -- is the statute absolutely clear that if lawyers representing the husband and the husband isn't the claimant and all that he can collect from the claimant, according to you position, is up to 25% of the claimant's recovery, do you think the statute precludes him from collecting privately anything from the wife?

Mr. Harris Weinstein: And with -- it precludes him from collecting privately without the approval of the Secretary.

Justice Byron R. White: And where do you -- is that in the regulations or is that in the statute?

Mr. Harris Weinstein: This is in Section 206 (a) of the statute which is Section 406 (a) in the US Code and, it allows the -- together with the amendments that went into force this January, it allows the Secretary to adopt rules and regulations governing fees.

It directs him to allow a fee to any representative which presumably a lawyer could be if he prosecuted the wife's claim before the Secretary.

Justice Byron R. White: Yes, but if there's a -- if the lawyer takes the husband's suit to Court and has an arrangement with him, he can collect from him and have it withheld from the benefits up to 25%, and you say either the statute or the regulations make it quite clear that the wife would be forbidden to pay him anything or that he would be forbidden from taking anything from the wife.

Mr. Harris Weinstein: I think the statute is clear that with -- unless it's with the approval of the Secretary, it is a misdemeanor, but there's no -- if I may take another moment?

Chief Justice Earl Warren: You may.

Go answer the question.

Mr. Harris Weinstein: I think there's been some suggestion that the Secretary is parsimonious in these matters, although this is again a matter for, I would think, for the Congress.

The -- our review of the fees, which is not in the brief, indicates that the Secretary, in the last several years, each year allows several hundred fees.

I think, in the calendar of 1966 there were over 800.

A majority of them are under $500.00.

On the other hand, a good number of them range from 500 and some much as high --

Justice Byron R. White: Well, anyway, the limits to the --

Mr. Harris Weinstein: -- as 2,000.

Justice Byron R. White: -- does the -- you would suggest that the limitation isn't to be found in this section that sets the 25%.

Mr. Harris Weinstein: The limitation on the total fee to the family.

Justice Byron R. White: Well, I mean, the limitation the proscription against the lawyer representing the husband from taking something from the wife --

Mr. Harris Weinstein: I think that would be --

Justice Byron R. White: Is not to be found in this section that sets the 25%.

Mr. Harris Weinstein: No, it would be in Section 206 (b)(2), the immediately following subsection which I don't believe that anybody has printed.

Justice Byron R. White: So, you say that there is a safety valve out of this 25% limit, in the sense, if he could convince the Secretary that he -- that the wife should be permitted to pay him something for recovering something for her too even if she wasn't the claimant in the Court, the Secretary could do it.

Mr. Harris Weinstein: Yes, Justice White.

Justice William J. Brennan: Is that 206 -- does that have a 25% limit, too?

Mr. Harris Weinstein: Not as we read the new statute.

It -- the 25% limit is on the withholding.

Justice William J. Brennan: Yes.

Mr. Harris Weinstein: But, the statute says that the withholding from the accrued benefits shall be the lesser of the fee approved by the Secretary or 25% or the contingent fee, and I assume that means that the approved fee could be higher than 25%.

Chief Justice Earl Warren: Mr. Gearinger.

Argument of Harold H. Gearinger

Mr. Harold H. Gearinger: Mr. Chief Justice and may it please the Court.

Without attempting to qualify myself as a more expert, given this field, than Mr. Weinstein, I do have some environmental and circumstantial advantages, in that, I was in the pit in these cases and all the way through from the administrative level.

We have a saying, if the Court please, in my area and Mr. Justice Fortas's area, very sagle judge who once said to me, “tell it like it is.”

And, if I may, Justice Brennan, and with the pleasure of the Court, let me very briefly outline the exact procedural steps that are involved in the background of this particular narrow question here today.

The disability we are concerned with here is not necessarily to have resulted from any industrial accident.

It can be from sickness.

The substantive decisions under who is disabled or voluminous in the reports.

That particular substantive question concerns, I would say, 95% of the cases that reached the District Court and certainly 100% of the cases that reach the Appellate Courts.

To begin with, a man who considers himself, let's take Mr. X and Mrs. X and three minor children under the age of seniority, under the age of 17, and he has, as in this case, a very limited formal education and has done a menial task all his life.

And, let us assume that he has some demonstratable disablement and he goes to the local district office of the Social Security Administration where he is confronted by a clerk who inquires as of his name, his address, his age, his genealogy, his wife's name, and his children's names.

At that particular point -- and this is by statute, at that particular point, there is an application made by Mr. X, an application made by Mrs. X, and an application made by Mr. X for his minor children, so that there are then before the administrative agency three claims.

The next step in this hierarchy is for the Social Security Administration at the field level to investigate these circumstances with field operators.

Let us assume that Mr. X receives adverse consideration all along this administrative line until he reaches this Court, and I think Mr. -- if the Court please, this is important to understand the specific question that is --

Justice Hugo L. Black: Is that what happened here?

Mr. Harold H. Gearinger: Now posed in this -- alright, sir?

Justice Hugo L. Black: Is that what happened here?

Mr. Harold H. Gearinger: Mr. Justice Black, what I'm doing, if the Court please, is to online to you what not only happened to Mr. Hopkins but happens to every one of the countless thousands who apply for Social --

Justice Hugo L. Black: What do you say that what happened to him.

Mr. Harold H. Gearinger: Yes, sir.

Justice Hugo L. Black: He applies and they turned him down.

He had to go to the Court.

Mr. Harold H. Gearinger: I haven't yet come to that point, Mr. Justice Black.

There are many administrative steps in which he's unrepresented before we reach that goal, sir.

What then happens is an investigation is made, and to be very brief about the administrative procedures because they're not too apt here.

He gets a denial.

In other words, based on Mr. Justice Brennan on his not being disabled, there is no passing upon the question of the entitlement to the wife and children.

They would get nothing if he is not disabled.

So, the first step is to determine the disability of the primary head of family claimant on which this entire issue turns.

Justice William J. Brennan: Up to this point, Mr. Gearinger, you haven't said anything about a hearing.

Mr. Harold H. Gearinger: Yes, sir.

I'm coming to that, sir.

Justice William J. Brennan: May there be an administrative determination of a denial of disability without a hearing?

Mr. Harold H. Gearinger: Yes, sir.

Oh, yes, sir.

Much before you get to the hearing.

For example, they come in this chronology, Mr. Justice Brennan, he makes his application.

There is an investigation made in which he does nothing more than sign his name.

Justice William J. Brennan: May I interrupt you there?

Mr. Harold H. Gearinger: Yes, sir.

Justice William J. Brennan: Precisely what was the alleged disability in Mr. Hopkins' case?

Mr. Harold H. Gearinger: In Mr. Hopkins' case, I'm of counsel and there were a number of medical disabilities here, the substantive decision on which was favorable to Mr. Hopkins, and he was considered to be disabled under the Act.

Justice William J. Brennan: But how?

But his disability had not arisen, you have already said that I think, from any industrial actions.

Mr. Harold H. Gearinger: No, sir.

It could have.

Justice William J. Brennan: But just --

Mr. Harold H. Gearinger: He suffered --

Justice William J. Brennan: -- deterioration or something, or what?

Mr. Harold H. Gearinger: He suffered a hernia.

As a matter of fact, his vocational experience was such that, in the condition he found himself when he applied, there was no employer who would hire him.

He was broken then.

Justice William J. Brennan: Now, what's the investigation?

In this instance, do investigators go around and see Mr. Hopkins' physicians or how do they do it?

Mr. Harold H. Gearinger: Yes, sir.

They -- they go around and investigate in the neighborhood.

They have what's called a contact man who makes a house-to-house investigation and that person, that clerk, then makes a report.

Justice William J. Brennan: Now, in his instance, did that result in a finding of disability or not?

Mr. Harold H. Gearinger: In this case, Your Honor, Mr. Hopkins was awarded these benefits because he was administratively, at the outset, determined to be disabled.

Justice William J. Brennan: Without any hearing?

Mr. Harold H. Gearinger: Without any hearing and, as a consequence, he received one check for himself and his wife and a separate check to him for the use of his minor children, as result to this determination.

But, let us assume for the purposes of illustration and for complete understanding of the exact problem here today --

Justice Hugo L. Black: You say the check was sent to him or his manager?

Mr. Harold H. Gearinger: Yes, Your Honor.

Justice Hugo L. Black: He could cash and use the money on his own.

Mr. Harold H. Gearinger: He is supposed to use it for the support of his family.

That's what the intent of Congress was and that's the sole purpose.

Justice Hugo L. Black: But he could get the money himself and had it in his disposal.

Mr. Harold H. Gearinger: Oh!

Yes, sir.

He being responsible for the care of his minor children under this Act.

Justice Hugo L. Black: Up to what age do the children receive these benefits?

Mr. Harold H. Gearinger: Numerically, I believe it's to 21.

However, in these families, if the Court please, we usually find by practical experience in the class of people who apply for these benefits the daughter marries and becomes emancipated, the young man goes in the Army, the Navy, the Marine Core.

So --

Justice Hugo L. Black: Yes, but I'm talking about how long they're entitled to it under the law.

Mr. Harold H. Gearinger: Under the law, until they reach their majority, Your Honor.

Justice Hugo L. Black: Yes.

Mr. Harold H. Gearinger: Or become self-maintaining.

Let us, if the Court please, go on to the very next step so we can see how this hearing examiner acts which is the pivotal point here.

Let us say that Mr. X is denied administratively.

He then is told by the agency that he may ask for reconsideration.

That's the next step.

He asks for reconsideration and the early denial is affirmed.

He then is told in formal fashion that he may request a hearing before the hearing examiner.

The hearing examiner then sets it down for a hearing and, at this point, without going a step further, the Court has inquired very pertinently what is the duty of the hearing examiner and I would respectfully submit to the Court that a judicial evaluation of that hearing examiner's position is very apt here.

For example, Judge Hemphill in Columbia, South Carolina, in Robinson versus Celebrezze which is cited in our brief says this, “the statute provides a ridiculous maximum fee for compensation of counsel at the hearing level where the determination may well shape the course of the remaining years of a tired life well spent dedicatedly given at the looms of industry.

If the hearing examiner within the Department of Health, Education, and Welfare, appointed through the Civil Service Rules, if the hearing examiner acts as judge, jury, prosecutor of the claimant, an advocate for the Secretary, the unrepresented claimant is beat before he starts.

Chief Justice Earl Warren: If he does that.

But, does he do that?

Mr. Harold H. Gearinger: If he does.

Chief Justice Earl Warren: Is that --

Mr. Harold H. Gearinger: Your Honor --

Chief Justice Earl Warren: -- is that his responsibility, to act as all of these things, under the Act?

Mr. Harold H. Gearinger: He is given such discretion, if the Court please, that he can act in any one of those categories or in all of those categories simultaneously.

Chief Justice Earl Warren: He can act as a prosecutor against the claimant, do you say?

Mr. Harold H. Gearinger: In a most subtle fashion and may I relate, if I may, if the Court please, my own experiences at that level.

There have come to my office many cases after the unrepresented claimant and his family had appeared before the hearing examiner.

They have now received a notice that the appeals counsel sitting in Washington has affirmed the hearing examiner's denial of disability and, therefore, the denial of benefits to the entire family.

And, he comes in and said “I received this notice and I think it says something about a Court.”

The statute then provides that, upon the final denial by the Secretary through the voice of the appeals counsel sitting here in Washington, within 60 days in a jurisdictional question arises, a suit may be filed or must be filed within 60 days in a Federal District Court.

This is the point, I respectfully submit, that most of us at the Bar get into this question.

Justice Abe Fortas: May I interrupt just a moment?

Mr. Harold H. Gearinger: Yes, Justice Fortas.

Justice Abe Fortas: If -- I don't quite understand about the hearing examiner.

Is he a hearing examiner in the same sense and at the same independence of tenure and so on that the, say, the hearing examiner at the Labor Board or the SEC has?

Mr. Harold H. Gearinger: Yes, Your Honor.

Justice Abe Fortas: Yes.

Mr. Harold H. Gearinger: Mr. Justice Fortas.

He --

Justice Abe Fortas: His one of the civil service core of a hearing examiner.

Mr. Harold H. Gearinger: Yes, Your Honor.

He is selected, and I know this because I've been asked to be one, he is selected from a pool selected by the Civil Service Commission and certified in this particular field or in any other field like most of hearing examiners are.

Justice William J. Brennan: Well, then he is not an employee of the agency.

Mr. Harold H. Gearinger: Yes, sir.

He is employed by Health, Education, and Welfare after being placed upon the certified role of candidates by the Civil Service Commission.

Justice William J. Brennan: Yes, but he is supposed to be impartial, isn't he?

Mr. Harold H. Gearinger: Yes, Your Honor.

Justice William J. Brennan: I can remember, in practice, being familiar with hearings like this in strike situations where you had the problem of --

Mr. Harold H. Gearinger: Yes, Your Honor.

Justice William J. Brennan: -- qualification or disqualification for benefits of the strikers.

Is that the sort of thing this is?

Mr. Harold H. Gearinger: In a similar sense, yes, Your Honor.

He does not sit there as an independent adjustor between two adversaries.

There is no adversary proceeding before the hearing examiner.

There is the hearing examiner, the claimant if he's unrepresented, and that is it.

That is all.

For example --

Chief Justice Earl Warren: Those people are taken from the Civil Service list for the particular reason that they will not be prejudiced in favor of the Government, are they not, and so that they will be independent in their view point?

Mr. Harold H. Gearinger: I cannot answer that, having knowledge of how they think in the proceeding about--

Chief Justice Earl Warren: Well, but you read very confidently, a moment ago, that they were prosecutor and advisor to the Secretary and all the other dominance that they could think of.

Mr. Harold H. Gearinger: Yes, sir.

Chief Justice Earl Warren: And now you knew about that.

Mr. Harold H. Gearinger: Yes.

Chief Justice Earl Warren: Why can't you know about this?

Mr. Harold H. Gearinger: I do know, if the Court please, from my own experience that this happens, and I see this in record after record.

For example, from the substantive question of disability, I would venture that in every one of the records I have read, there is questioning by the hearing examiner of the head of family claimant.

And, one of the questions always asked is, “How did you come here this morning?”

And if he drove there, he's not disabled.

This gets into each record.

I hesitate to say these things because some of my best friends and acquaintances are these hearing examiners.

I admire their ability but, nevertheless, we are confronted with this record which then cannot be heard de novo by a District Court but can only be reviewed to determine if there is any evidence in that record to support the Secretary's denial of benefits.

That's the test.

And, by that time, the barn door hinges have rusted and the mule has been stolen and the record is closed, and there's very little that can be done by an attorney because the Court cannot entertain any new evidence at that level at all.

Justice Hugo L. Black: You make a pretty serious charge there, I think, to that need examiners satisfy --

Mr. Harold H. Gearinger: Mr. Justice --

Justice Hugo L. Black: -- satisfy -- to satisfy.

Mr. Harold H. Gearinger: Mr. Justice Black --

Justice Hugo L. Black: Just in case if you drove here, there's nothing wrong with you.

Suppose the claim was that he had his left foot cutoff.

Mr. Harold H. Gearinger: That wouldn't be considered of course, Your Honor.

I was --

Justice Hugo L. Black: That wouldn't be considered.

That would not be filed then.

Mr. Harold H. Gearinger: No, sir.

Justice Hugo L. Black: Because he drove in there.

Mr. Harold H. Gearinger: No, no.

I used that as a passing illustration, Mr. Justice Black, of the --

Justice Hugo L. Black: You used it as a statement though which you reflected very seriously --

Mr. Harold H. Gearinger: I did not intend it to be that way.

Justice Hugo L. Black: On a group of people who are perhaps as honest as any other group of individuals.

Mr. Harold H. Gearinger: They are indeed -- indeed.

What I was attempting to do, Mr. Justice Black, was to respond to a question and I did not intend to say, of course I wouldn't say, that that is the sole determining factor but I was using that as a mere illustration of the question and answer proceedings at the hearing examiner's level.

Most of those hearing examiners do a magnificent job.

I've been before them many times.

Justice Hugo L. Black: I don't want to challenge your answer to the question.

Mr. Harold H. Gearinger: Yes, sir.

Justice Hugo L. Black: But, can you tell me what relevance did that have?

Mr. Harold H. Gearinger: Yes, sir.

Justice Hugo L. Black: The issue that we have before us.

Mr. Harold H. Gearinger: It has this issue --

Justice Hugo L. Black: -- on how much fee will be under the statute.

Mr. Harold H. Gearinger: Yes, sir.

And I'll get to that point immediately, now that I have attempted to outline this administrative procedure which prompted some questions from the bench.

The question here is only one of after Mr. Hopkins was represented by Mr. Sharp in the judicial proceedings and was successful in his representation of that family.

The position of the respondent here is, very simply stated, 25% which is the maximum not to exceed that and not necessarily that, but not to exceed 25% applied to the base of only that which was paid directly to and for Mr. Hopkins, not including the benefits derivatively arrived in these proceedings to Mrs. Hopkins and the dependant children.

It is the position of the petitioner here and in the Sims case, which is pending before this Honorable Court on a petition for writ of certiorari to the Sixth Circuit which is my case, the position of the petitioner in both instances is that the clear intent of the Congress in this particular statutory provision was to limit a district judge exercising the discretion which is his, having seen the people, heard the case, and in a better position to evaluate the services rendered, to set a fee not to exceed 25% of the benefits resulting from the judgment.

Justice Hugo L. Black: Of all the claimants?

Mr. Harold H. Gearinger: Of it -- yes, Your Honor.

Justice Hugo L. Black: Well, now, did your lawyer have an agreement with these other beneficiaries who Congress has tried to take care of --

Mr. Harold H. Gearinger: No, Your Honor.

Justice Hugo L. Black: That they would be held responsible so their claim would be subject to this?

Mr. Harold H. Gearinger: No, Your Honor.

In this Hopkins case, and of course I'm here as of counsel in this case, never having seen Mr. Hopkins and not knowing too much of the --

Justice Hugo L. Black: Well, what I'm interested in is what authority did he have to sign away the rights of these other claimants --

Mr. Harold H. Gearinger: He being --

Justice Hugo L. Black: If -- if they didn't sign?

Mr. Harold H. Gearinger: In the Hopkins case, Your Honor, Mr. Hopkins was the head of the family who signed the contingency agreement with Mr. Sharp, along with Mrs. Hopkins, and presumably for his minor children.

Justice Hugo L. Black: But “presumably,” but what authority did he have to sign it for his minor children and his wife?

Mr. Harold H. Gearinger: His wife signed it, Your Honor.

Justice Hugo L. Black: She did?

Mr. Harold H. Gearinger: Oh, yes.

Justice Hugo L. Black: Well, then, she's alright.

Mr. Harold H. Gearinger: Yes, Your Honor.

Justice Hugo L. Black: As the signatory but, as I understand from the government, it has provided separate sums of benefits for the children.

And, you're asking that, without any agreement on their part or anyone acting for them, they be subjected to a lawyer's fee.

Mr. Harold H. Gearinger: That is not precisely, Mr. Justice Black.

May I say this, the children in the case are, of course, minors and they proceed through the office of their father, the head of the family.

Justice Hugo L. Black: Under the law?

Mr. Harold H. Gearinger: In normal circumstances, under the law.

Justice Hugo L. Black: Signing their contracts?

Mr. Harold H. Gearinger: For their benefit.

Justice Hugo L. Black: And their property?

Mr. Harold H. Gearinger: Payable to the head of the family, Mr. Justice Black, for their benefit of course, there being no funds here to get any guardian appointed or being no necessity, their father being alive.

Justice John M. Harlan: There's no reliance here whatever on that contingent fee agreement, is there?

Mr. Harold H. Gearinger: No.

Justice John M. Harlan: So we're not talking about --

Mr. Harold H. Gearinger: No, we're not.

Justice John M. Harlan: Who signed it or who didn't sign it or anything else.

Mr. Harold H. Gearinger: No, it matters not whether there was a contingent fee agreement or not.

Justice John M. Harlan: I know, we're talking about is the construction of the statute.

Mr. Harold H. Gearinger: That's right.

That was overcome by this statute.

Justice Hugo L. Black: And, that involved whether these children's properties that the Government has provided for them shall be subjected to attorney's fees by reason of a contract made by their father who is not their guardian.

Mr. Harold H. Gearinger: Who was their natural guardian, Mr. Justice Black.

Justice Hugo L. Black: Well, that's alright.

He was not their legal guardian, was he?

Mr. Harold H. Gearinger: No, sir.

Not in the strict legal sense.

No, Mr. Justice Black.

Chief Justice Earl Warren: Mr. Gearinger, now that you've answered that, I'd like to get back to your procedure again.

Now, let's suppose this, that you have two men, X and Y, who have the identical disability.

Mr. Harold H. Gearinger: Yes, sir.

Chief Justice Earl Warren: They proceed in exactly the same manner before this tribunal.

One of them is married and has three little infant children, like Mr. Hopkins.

The other one is a bachelor.

Mr. Harold H. Gearinger: Yes, sir.

Chief Justice Earl Warren: The Court hears -- they hear both cases and they both get an identical award.

For some reason rather, they go to the Courts with a lawyer, both are sustained.

Are you clear on what I've said?

Mr. Harold H. Gearinger: Yes.

Chief Justice Earl Warren: Now, tell me.

What additional work would a lawyer have to do in the case of the man who had a wife and three children to do in order to get that decree over what the man with -- in the case of the man who was a bachelor?

Mr. Harold H. Gearinger: Yes, Mr. Chief Justice.

The amount of legal professional work, undoubtedly, would not be too dissimilar.

They would be almost alike, except if at the hearing examiner's level if he were in -- if he were representing them there, he would of course call upon the wife, the children, the neighbors, or anyone else to appear in that hearing and, herein, testify.

Chief Justice Earl Warren: And, testify to what?

Mr. Harold H. Gearinger: They testify as --

Chief Justice Earl Warren: They would have to have that for the other man.

Mr. Harold H. Gearinger: -- and testify as to the state of disability of the head of the family.

Chief Justice Earl Warren: Well, you'd have to have other witnesses for the bachelor just the same whether they were wife and children or not, or it might be a mother and a father, brothers and sisters.

Mr. Harold H. Gearinger: In most cases, Mr. Chief Justice, the hearing is conducted on exhibits of medical reports --

Chief Justice Earl Warren: I know.

Mr. Harold H. Gearinger: -- and the hearing and the claimant, so --

Chief Justice Earl Warren: I know but the evidentiary, whatever --

Mr. Harold H. Gearinger: Yes, sir.

Chief Justice Earl Warren: Whatever it is, would the evidentiary requirements be any different in the case of the bachelor or the man with three children?

Mr. Harold H. Gearinger: Not on the substantive question of the disability of the head of family.

Chief Justice Earl Warren: Alright.

Now, what in addition to that would they have to prove for the man who had a wife and three children?

Mr. Harold H. Gearinger: The relationship of those dependants to that claimant and their entitlement as his dependants.

Chief Justice Earl Warren: Then they would have to ask two questions, one for the wife, “are you the wife?”

And she would say, yes, and you'd have to ask somebody if the children --

Mr. Harold H. Gearinger: Children --

Chief Justice Earl Warren: -- were his children.

And, that's the only difference?

Mr. Harold H. Gearinger: At the hearing examiner's level, that is the only difference.

Chief Justice Earl Warren: Yes.

Mr. Harold H. Gearinger: Yes, sir.

Chief Justice Earl Warren: Alright.

Now -- but still you are of the opinion that Congress couldn't limit or shouldn't limit the attorney's fees to a percentage of the original claimant himself but, on the other hand, you claim that Congress intended that a lawyer should take up to 25% of everything that comes in to the wife and to these children from the time their legs and arms were happed up until they're 21 years of age.

Mr. Harold H. Gearinger: No, Your Honor.

Chief Justice Earl Warren: What do you ask them?

Mr. Harold H. Gearinger: We say this, Your Honor, that because the substantive question of disability is only the head of family claimant and that the benefits flowing to the wife and any dependants he may have, of course, is insulary to a determination of that first substantive question.

Chief Justice Earl Warren: Yes.

Mr. Harold H. Gearinger: So that, they would have no benefits had he not been found disabled.

Chief Justice Earl Warren: Yes.

Justice Abe Fortas: Please start off here, don't you, at the statutory provision that limits the base to the amount of past benefits?

Mr. Harold H. Gearinger: That's right, Your Honor.

Justice Abe Fortas: Actually, what happens here if a lawyer is successful is that Mr. Hopkins is enti-- and his wife and children are entitled not only to pass the sums but to payments in the future.

Mr. Harold H. Gearinger: That is entirely correct, Mr. Justice Fortas.

Justice Abe Fortas: But the statute provides that the lawyer is confined to the amount that is received before Mr. Hopkins or Mr. Hopkins et al. has by reason of past accruals.

Mr. Harold H. Gearinger: That's entirely correct, Mr. Justice Fortas.

Justice Abe Fortas: Not only that, then you have a 25% ceiling on that base and then you have the discretion of the Court to cut below that 25%.

Mr. Harold H. Gearinger: Yes, Your Honor.

Justice Abe Fortas: Is that the way it works?

Mr. Harold H. Gearinger: Yes, Your Honor.

And, in a practical sense, the Court does not in any case or in all cases automatically grant 25%, and he should not.

He should not --

Chief Justice Earl Warren: Whether this 25% or not, and whether it is prospective or whether it is retrospective in the percentages that he's entitled to get, why should a man in the case with the wife and three children have to be entitled to get 25% of all of the payments that had been made to the wife and children if all he has to do is ask him if they are the wife or are the children?

Now, don't you think that Congress has a right to say that it shall be limited to that -- to just the claimant himself rather than the other, and don't you think in a case of this kind Congress intended to have a strict application so that these people would not be -- this kind of claimant should not be overborne by lawyer's contracts?

Mr. Harold H. Gearinger: Your Honor, I'm trespassing upon my time, if the Court will allow any longer?

Chief Justice Earl Warren: You can answer the question.

Mr. Harold H. Gearinger: I think that we have concerned ourselves and I apologize for concerning myself so much with the function of this organization and not to the interpretation of the statute.

We submitted to the Court yesterday and, if the Court please, I could now lodge with the Court we reproduced numerous copies of Judge Coleman's opinion that was coming at point from this.

Chief Justice Earl Warren: We've heard that draft yesterday.

Mr. Harold H. Gearinger: The --

Justice John M. Harlan: That --

Mr. Harold H. Gearinger: -- position of -- yes, Your Honor?

Justice John M. Harlan: That was the unreported opinion --

Mr. Harold H. Gearinger: Yes.

Justice John M. Harlan: That I asked.

Mr. Harold H. Gearinger: On my happy conscience, Your Honor, if the Court would like to have them lodged with the clerk.

The -- the simple and final position in this case of the Government on one hand, and the petitioner's on the other is that we say that it was the intention of the Congress not to divide and separate bachelors and fathers and mothers since the benefit went to the family unit, and there is no provision in the statute under consideration making such separation.

And, in that connection, the petitioner here in this case relies and urges very respectfully of this Court the position and interpretation taken by Chief Judge Hainsworth in the Fourth Circuit as being the proper interpretation of the statute.

Thank you, Mr. Chief Justice.

Justice Hugo L. Black: May I ask you just one more question.

Mr. Harold H. Gearinger: Yes, Mr. Justice Black.

Justice Hugo L. Black: I haven't yet heard, maybe it's not in the record, it's not yet mentioned, has this man been given payment on the basis of the total permanent incapacity?

Mr. Harold H. Gearinger: Mr. Justice Black, unlike workman's compensation by percentages of permanent disability or non-permanent disability, these -- the benefits provided by the Social Security Act are measured on a formula concerning the payments he has made toward the trust fund and his eligibility by age and earning capacity in the past.

It's automatically computed.

It depends not upon a --

Justice Hugo L. Black: It depends on whether he's injured, doesn't it?

Mr. Harold H. Gearinger: It depends on whether he is disabled.

Justice Hugo L. Black: Well, what disability was found in this case?

Mr. Harold H. Gearinger: In this case, there is -- the Secretary found that he was totally disabled, and payment --

Justice Hugo L. Black: Totally disabled?

Mr. Harold H. Gearinger: Yes, sir.

Justice Hugo L. Black: With hernia?

Mr. Harold H. Gearinger: Under -- and a number of other things, combined together.

In the Secretary's determination, the administrative --

Justice Hugo L. Black: I haven't heard about the other things yet.

Mr. Harold H. Gearinger: Well, we haven't touched upon those, Mr. Justice Black, because the Secretary has decided he was disabled and we have no dispute with that decision.

The Court found he was disabled and we have no dispute with that, so that the solitary question here is upon what base does the district judge fix a percentage fee.

That is the --

Justice Hugo L. Black: I agree with you.

That's the only issue here.

Mr. Harold H. Gearinger: That's the only issue, Mr. Justice.

Justice Hugo L. Black: It would -- we've been going around pretty much.

Mr. Harold H. Gearinger: Yes.

Thank you, Your Honor.