NORTON v. MATHEWS

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Argument of C. Christopher Brown

Chief Justice Warren E. Burger: We will hear arguments next in 74-6212, Norton against Matthews.

Mr. Brown.

Mr. C. Christopher Brown: Mr. Chief Justice and may it please the Court.

The counsel for all parties to this case and the next case, Matthews v. Lucas have discussed the following matter and we agreed to suggest to the Court that during the Norton hour, we discuss jurisdictional issues and during the Lucas hour, we discussed the merits and we will, if there is no objection to that.

Chief Justice Warren E. Burger: We will try not to have any questions across that division.

You may proceed with that Mr. Brown.

Mr. C. Christopher Brown: Fine.

Thank you.

In 1969, Gregory Norton Jr. then aged 5-years old, applied for Child Insurance Benefits with the Social Security Administration.

Title 2 of the Social Security Act, allows children whose fathers have become disabled, have reached a certain age or who have died and whose fathers worked and were covered by Social Security employment for a requisite number of quarters, to receive death benefits, at least death benefits in the Norton Case, upon the death.

Gregory Norton applied for these benefits.

He applied for the benefits after his father was killed in the Vietnam war and Gregory is illegitimate.

His mother and his father were not married.

Now, the Act is so structured, now I will just on this briefly because it is not totally relevant to the jurisdictional argument, but the Act is so structured that most other children who were applying for Child Insurance Benefits have to, in addition to several not very controversial prerequisites, have to establish that they indeed are the son or the daughter of the wage earner i.e. he has to establish paternity.

Now, Gregory Norton’s class have to establish another fact.

They also have to establish in addition to paternity, that they were either living with or supported by the deceased wage earner at the time he died.

Gregory Norton filed the cause of action in the Federal District Court to challenge the constitutionality on the Fifth Amendment Equal Protection concepts of that provision.

A suit was filed in the United States District Court for Maryland.

In that suit, there were various jurisdictional basis asserted, 28 U.S.C 1331, APA jurisdiction, mandamus jurisdiction, 1361 and also jurisdiction under the statutory review procedures, 42 U.S.C 405 (g).

The suit was also classed, stated to be a class action.

The United States District Court in its initial opinion, held in its opinion that a class was to be certified, but on the merits that ruled against the Norton claim by three to nothing vote, in a Three-Judge District Court.

An appeal was then taken from that adverse decision to this Court.

This Court, shortly after this court decided the Jimenez case, Jimenez v. Weinberger, remanded this case back to the Three-Judge Court for reconsideration in light of the Jimenez case.

On remand, the Three-Judge Court, this time by 2 to 1 vote upheld the constitutionality of the statutory provision that Gregory Norton was attacking.

An appeal was then brought again to this Court and that is where we are today.

Incidentally, there is another issue that has now been waived by Gregory Norton and that is an issue that he indeed was, in fact in the court, and therefore, met the prerequisite of the Act.

That decision was decided adversely to Gregory Norton.

He waives the -- he has not appealed that issue.

His only issue in this case, in addition to the jurisdictional issues, is whether or not the act is constitutional.

Because if it is not, then he does not have to establish that he was either supported by or resided with his deceased wage earner father.

This case can only come to this Court, if it comes from a properly convened Three-Judge Court in the District of Maryland.

We are alleging jurisdiction in this Court now, pursuant to 28 U.S.C 1253.

That statute requires in turn that a review can only be had from decisions properly convened Three-Judge District Court granting or denying injunctive relief.

Accordingly, we are properly here, as the Three-Judge Court in this case properly had the power to issue an injunctive relief and the kind of injunctive relief that would seek to stop enforcement of the statute.

This we contend, it did have the power to do and this basically was the core argument on the jurisdictional issue in this case.

We have two major routes by which this think this Court -- to either one of which this Court, could get to the final solution that there indeed is injunctive power in the District Court.

One route is by looking at Section 205 (g) of the Social Security Act which is 42 U.S.C Section 405 (g) and that is the provision of the Act which was highlighted in this Court’s recent decision in Weinberger v. Salfi.

And by looking at that statute itself and getting it from the words of that statute or from how that statute should be interpreted in light of the general statutory interpretation rules should apply in this situation or secondly, if 205 (g) cannot do it by itself, we contended the APA who gives the power to -- for a Federal District Court, if not given the power explicitly by the statutory review statute to issue injunctive relief, sort of as an ancillary remedy to what is provided by the statutory review section.

Justice William H. Rehnquist: But in order to get in under the APA, you have to show that the statutory remedy otherwise provided is inadequate?

Mr. C. Christopher Brown: That is true.

That s true.

I hope to be able to point that out today.

First, the general presumption which seems to run throughout the cases of this Court that were decided this century, is that barring an explicit declaration by Congress to the contrary, there is a general presumption of reviewability.

Now also, I think that cases can be read to establish, there is a general presumption that a District Court which is an equity court has brought equitable powers.

Now, admittedly each case that has been decided thus far deals with a specific agency and it is where they expected, the words of each statutory review, provision for each of the agency are not the same as being counted on in this case.

Accordingly, I admit that there is no case right on point.

But, there are many cases which seemed not to be limited in any way and accordingly would be applicable to this situation.

So basically, we are beginning our argument on the assumption that there is a general presumption that the court of equity, which the United States District Court is now, with the combination of law and equity, can grant all relief that is necessary to make the parties whole, unless the Congress specifically said that they cannot.

205 (g) of the Social Security Act, as is pertinent to this case, merely says the following that the District Court after certain prerequisites have been met which Gregory Norton has met in this case, the District Court should have the power to affirm, modify or reverse the decision of the Secretary and we contend that there is nothing in those three words which in any way indicates a congressional intent to negate injunctive relief in this case.

If anything, perhaps the word “reversal” could be read to include the power to issue reverse by an injunctive relief --

Justice William H. Rehnquist: Well, is it not though that perhaps the more accurate question to ask is whether the injunctive authority that is as you say is generally available to the District Courts.

Is there any way necessary to carry out where the statute – what this statute requires the District Court to do.

I mean, can it not fully accomplish what the Congress has intended that it do, by simply setting aside the decision of the Secretary?

Mr. C. Christopher Brown: Okay.

I will move on to that point right now, Your Honor.

If we look at how the Act works and how impractically the needs of the people litigating in this area, the needs of claimants who are attempting to obtain Social Security benefits, we see on two different levels that there are very many practical needs as to why a claimant actually does need injunctive relief as opposed to any other kind of relief.

Now, I think that if we look at those needs and imagine what the Congress must have imagined and indeed, the Congress has not said very much on this issue.

We are basically not working with any explicit statutory history.

We look at the needs for injunctive relief that I would submit the Congress could no way have intended to not allow an equity court to issue injunctive relief.

First of all on the individual basis, now look at this on an individual basis and on the class wide basis.

On individual basis, when an individual claimant receives the benefit, there is no necessary guarantee that he is going to be paid that benefit in a prompt fashion.

Indeed, there may be cases when that individual may want to be able to get benefits before a final judgment is issued i.e. he may want to apply to a court for preliminary injunction or something such as that to give benefits before the District Court has finally decided the ultimate merits of the case.

Here is an example where that could be very helpful.

In this Lucas case for instance, the oldest of Lucas’ daughter, was past the age of 18, she is now past the age of 18, you cannot get these benefits if you are past 18, unless you are still on school.

Now, in her case, she could not still be in school unless she had the money not to have to work.

So in many individual cases, there may be have instances in which the prerequisites of a preliminary injunction have been met by an individual parting and for instance in this situation where you have someone who has strong need for the benefits it could very clearly be a situation in which they could establish the various equities and so forth to get a preliminary injunction.

That would be one kind of an injunctive relief, but admittedly, that would be the kind of injunctive relief you need in order to have a Three-Judge Court.

That would not enjoin the enforcement of the statute.

Chief Justice Warren E. Burger: Will that injunction be very useful, if the case was on review?

It is very likely that if we decided to take the case that, that would be enough also to suggest the likelihood of a stay of the injunction until the merits were decided.

So, how would that get any money in the pocket of the recipient?

Mr. C. Christopher Brown: Well, then the government would have to come in and fight against the preliminary injunction motion and they would balance the equities in that situation, and either win or they lose or if the decision was issued favorably to the individual claimant, the way normal cases work, that claimant gets the fruits of their victory at that point, unless the other side comes in and requests a stay, pending appeal.

Chief Justice Warren E. Burger: Was that not very often the case?

Mr. C. Christopher Brown: Indeed, that is the case.

For instance, one another case, it was here on summary affirmance is Griffin v. Richardson.

In that case, the Three-Judge Court held another provision in Social Security Act unconstitutional, violating the illegitimate children’s rights.

The government came in and asked for a stay, pending appeal.

They said that $50 million is going to have to be paid out.

That is too much.

That is what the Supreme Court does.

The Three-judge Court unanimously denied their request for a stay, pending appeal and Mr. Justice Burger, you affirmed that denial.

The benefits were paid out by the Social Security Administration or at least the process was begun before this Court summarily affirmed that decision.

Now, that is just one situation and each case would have to be decided on its own individual merits.

I think that it is even more.

There are more important reasons than --

Chief Justice Warren E. Burger: Then because when the stay application is presented at this level, an evaluation is made of the probabilities?

Mr. C. Christopher Brown: Indeed, you would have to show a strong (Voice Overlap)

Chief Justice Warren E. Burger: It is a little -- it is a little difficult to generalize about this, is it not?

Mr. C. Christopher Brown: Indeed, you would have to make a strong likelihood of success on the merits.

The irreparable harm would have to be significant.

The public interest would have to be in one’s favor and it would have to not be of significant harm to the government.

I am assuming that those could be met.

We are talking now about why injunctions are needed and we cannot specifically talk about this case or that case.

We lost below in this case.

We are in no position to --

Justice William J. Brennan: May I ask, I gather this is an argument that there is this equity power of the District Court?

Mr. C. Christopher Brown: This is correct.

Justice William J. Brennan: And that affirm, reverse or modify in no way reduced that power --

Mr. C. Christopher Brown: That is correct.

Justice William J. Brennan: -- or curtail, is that it?

Mr. C. Christopher Brown: That is correct.

Justice William J. Brennan: You do not -- you are not making an argument that one may construe, affirm, modify or reverse, although you did say earlier something about a reversal might in some instances, tantamount to injunction, but this is not an argument and that any of those words should be interpreted as embracing that power?

Mr. C. Christopher Brown: You are correct, Your Honor.

Right now, I am saying -- I am about to go to the policy reasons that the Congress would have had to go through themselves.

Justice William J. Brennan: I just do not understand.

What you are saying is that the power that one usually has in an equity court has not in any way has been curtailed by the language used in 405 (g)?

Mr. C. Christopher Brown: That is correct.

That is my argument and when the language says nothing, we try to look to other reasons as to what the Congress might mean and now, looking at these various actual needs, the claimants might have, I think that this helps expose some of the reasons why Congress would not have wanted to preclude injunctive relief.

The most important aspect of any case such as this is an attempt to make everyone whole who has suffered under an unconstitutional provision, in this case, the Social Security Act, there is a need for a proper perspective enforcement or un-enforcement as the case may be in this situation of the illegal provision of the Act, there is a need for retroactive benefits to be paid or at least the court would be asked for that.

Justice William H. Rehnquist: You I presume you are speaking with respect to people who are parties to the litigation?

Mr. C. Christopher Brown: Well, with respect to retroactive benefits, I am talking about the parties, the named the plaintiffs in litigation as well as the class.

Justice William H. Rehnquist: A class consisting of people who had made claims to the Secretary and who had made them within 60 days?

Mr. C. Christopher Brown: That is correct, Your Honor.

Who have applied for benefits, who have been denied by benefits solely because of this specific provision that the rest of the class is litigating and who have filed their requests for benefits or their appeal to the District Court no later than 60 days or perhaps we would contend later on if there is a tolling effect and that Gregory Norton in fact tolled the statute of limitations for this class.

Justice William H. Rehnquist: Well, even if they had not applied for benefits within 60 days, if they would be members of a class, I suppose the class member filing might be tantamount to a filing for them, but at least the class could not embrace people whose claims had been denied by the Secretary more than 60 days before the class member filed.

Mr. C. Christopher Brown: That is correct, Your Honor.

That is exactly correct and we do not ask for anything broader than a class that would be defined as you just define it.

Without injunction relief, there is really nothing that can be done in terms of making everyone whole.

The Act itself is now structured so that the individual claimant can be made whole, but there is nothing which makes everyone whole.

All those illegitimate children in this case have applied for benefits, but have been denied benefits because they could not meet the specific requirements of the Act that are being challenged in this case.

I think that Congress -- I cannot imagine that the Congress would have wanted to preclude any District Court for making the whole class whole after a court had decided that the provision under which the whole class was denied benefits was unconstitutional.

Justice William H. Rehnquist: But can the court not make that whole class whole simply by setting aside the order of the Secretary with respect to each member of the class?

Mr. C. Christopher Brown: Well, what would be you are saying is another word other than injunction, that would be used to define what the District Court would do, and that would be setting aside.

Justice William H. Rehnquist: Well, an injunction says to the Secretary as I conceive it, “This provision is unconstitutional and you are barred from enforcing it.”

Now, it might be enforceable only by people who are parties of this action, but setting aside, at least I would read 405 which would say, “Your order in this case is invalid because it relied on an unconstitutional Section of the statute, therefore, this claimant should be awarded benefits.”

Mr. C. Christopher Brown: The court also say that the whole class of claimants should be awarded benefits in the same manner.

Justice William H. Rehnquist: Well, certainly If the class were uniformed, properly a class, the court could say that the awards in each of the cases are set aside?

Mr. C. Christopher Brown: I would have no difficult -- the word “set aside” I do not believe in the statute just as the word injunction is not in the statute.

Justice Potter Stewart: That does involve the basic jurisdictional question of this Court and presumably that could be done by a Single-Judge Federal District Court?

Mr. C. Christopher Brown: I understand that, Your Honor.

Justice Potter Stewart: Now, on the other hand, if the holding were as my brother Rehnquist suggests that the statutory provision upon which the Secretary relied was unconstitutional, then I suppose there would still be a direct appeal of this Court under the other statutory provision, 1252, would it not?

Mr. C. Christopher Brown: Correct and that is why Lucas is here.

Justice Potter Stewart: But of course in this case, the holding was the opposite way on the merits?

Mr. C. Christopher Brown: The problems that I have with getting relief and making the class whole is by something not called injunction, but instead called setting aside of the decisions of the Secretary for a whole class are as follows.

There is often a need to assure some degree of promptness in what the Social Security administration does.

The Social Security does not necessarily act as promptly as perhaps they ought to act.

An injunction is something which enables people to act a bit more promptly and it enables the attorneys for the people who have gotten and received a favorable order to assure that a prompt action would be carried out.

Also, I think that many times, their classifications are needed.

The Secretary does not willfully disobey orders, but sometimes there is an ambiguity as to what an order means.

Experience has at least shown me that if you have an injunction which is ordering anybody to do something, that much more readily assures prompt resolution of any ambiguity that may arise.

Another factor which would compel that there would be an injunction rather than to say just to setting aside or nothing at all is, that with something, it is -- it would be termed just setting aside the decision of the class.

You in effect are assuming that the Secretary is lost and the claimant class as one, are giving the Secretary a stay, pending, an automatic stay, pending appeal.

I do not think Congress would have intended that the Secretary necessarily gets an automatic stay, pending appeal.

Justice William H. Rehnquist: Why do you think that the Congress then show us this particular language, affirming, modifying or reversing the order of the Secretary as the method by which the Secretary’s decisions would be judicially reviewed?

Mr. C. Christopher Brown: Well, I am not -- it seems to be the primary method by which the Secretary’s decisions are to be reviewed.

I have argued my brief that there can be other methods also.

For instance, we are talking about the Act, 205 (h) talks about decisions of the Secretary.

There could be a very good argument that this is not a decision of the Secretary that we are challenging, but it is a decision of the Congress deciding Johnson v. Robinson.

Justice Potter Stewart: Quite a lot of these doubts you are suggesting pretty well resolved in the Salfi opinion?

I have not got it before me, but did the Salfi opinion not say just that, that this is the method by which Congress has chosen that the Secretary’s decision be reviewed and a decision such as this is a decision of the Secretary and not of the Congress, of the Secretary within the meaning of the statute?

Mr. C. Christopher Brown: Let me say this.

It appears as if -- I read Salfi ad nauseum, it does not seem to have anything --

Justice Potter Stewart: How many readings to that test?[Laughter]

Mr. C. Christopher Brown: Salfi does not indicate in any way except with one slight exception which I will touch upon, that for instance, there is no way in which you can get injunctive relief.

Salfi did not need to decide that issue because Salfi had a different circumstance.

Salfi says nothing that, for instance, part of the APA, Section 703 to 704 of the APA, give ancillary power to issue injunctive relief.

Salfi does not touch upon that.

I do not think, even if we assume that 205 (g) is the only way that we get review on this case, that does not preclude injunctive relief because that does not preclude relying upon the ancillary APA remedial powers.

There is nothing in Salfi and there is nothing in 205 (g) or 205 (h) which in any way precludes that to the best of my knowledge.

And, there is a language in 205 (h) which says, “In order to get a review under this Social Security provision, you have to follow all portions of the Act” and by the class that I have suggested, they defined that the class by definition would have followed all portions of the Act. We are exhausting, which is one if the things that Salfi requires.

We will file applications which Salfi requires.

I can see nothing inconsistent with what we are asserting here and --

Justice Byron R. White: Well, you are going with Salfi -- you are not suggesting though that the District Court would have, prior to enjoying the operation of the act of Congress, generally against anybody is not enough for you to say that it is not inconsistent with the judicial review provisions for the court to in effect enjoin the operation -- to set aside the award or to set aside the denial of the award on the ground that the Act is unconstitutional?

You are enjoining the operation of the statute to that extent.

Is that not enough, that is all that you need to --

Mr. C. Christopher Brown: That is enough.

I am talking about these hypotheticals merely to try to spell the notion that Congress could have intended there to be no injunction power at all.

These hypotheticals are not necessarily in this case, but what you said is correct.

Justice Byron R. White: But, do you think that the setting aside a judgment of the Secretary on the ground that he acted under is unconstitutional, does that amount to an injunction?

Mr. C. Christopher Brown: I think that it amounts to injunction if there is the same bite that order would have which an injunction has which means that something has to begin happening now or payments have to start to be made now and payments would have to be made to the whole class.

If that is what the setting aside entails and implies, I think it is tantamount to an injunction.

Justice Byron R. White: Well, what does it imply?

Mr. C. Christopher Brown: I presume, Justice Rehnquist has suggested this, and it would seem that if you use the word “set aside” and treated them like an injunction, there are cases that this Court established that you have to then have a Three-Judge Court.

We do not know.

You generally look at what the remedy does as opposed to the (Voice Overlap)

Justice Byron R. White: The Secretary acts under a statute and says that your claim is erroneous because the statute bars it and the Court says, “That statute is on the constitution, you cannot bar them for that reason.

Your order is set aside.”

Now, the act of Congress -- the Court is refusing to apply an act of Congress in that particular case.

I take it.

And he is telling the Secretary (Voice Overlap)

Mr. C. Christopher Brown: You are saying that an individual ordered to set aside a case would not in effect stop the enforcement of an Act.

Justice Byron R. White: Well, I mean, the statute says in an injunction restraining the enforcement or the operation of the statute as well as --

Mr. C. Christopher Brown: I understand your point and I would agree with that point.

Justice William H. Rehnquist: That in turn is set aside is probably unfortunate.

I think reverse which is the statutory line, would accommodate the same question?

Mr. C. Christopher Brown: That is quite probable.

My suggestion would be that that would be that that would be tantamount to injunction.

Justice William J. Brennan: Now you saying reversed is tantamount to what?

Mr. C. Christopher Brown: Your Honor, I think if pressed to my hardest argument, I would say that reverse includes to give injunctive relief or that kind of -- I do not think that I am pressed to that point.

Justice Potter Stewart: Does a Three-Judge court would be required to do it?

Mr. C. Christopher Brown: Yes, Your Honor.

If the reversal was tantamount to an injunction and operated like an injunction and restrained enforcement of the statute, a Three-Judge Court would be required.

This a unique way of approaching it and I had approached it on a traditional ways which would make a little clearer as to what was happening, and therefore, whether a Three-Judge Court is necessary or not.

I would like to reserve whatever time I have left if that is possible.

Chief Justice Warren E. Burger: Very well.

Mr. Jones?

Argument of Jones

Mr. Jones: Mr. Chief Justice and may it please the Court.

The United States takes the position in this case that this Court lacks jurisdiction to hear this appeal.

Our contentions in this regard may be summarized by the following five points.

First, the appellant’s individual claim for relief did not require the convening of a Three-Judge District Court.

Second, the District Court lacked the subject matter jurisdiction over the class designated by the appellant.

Third, although the District Court may have possessed subject matter jurisdiction over a far more narrowly defined class of claimants, a suit on behalf of that class would not be cognizable under the Federal Rules of Civil Procedure.

Fourth, even if such a class action were cognizable under the rules, the class would nevertheless been unable to assert a substantial claim for an injunctive relief, and therefore, under no circumstances would a Three-Judge Court have been required to hear that case.

And fifth and finally, since the Three-Judge Court was not required, this Court lacks jurisdiction over the appeal.

I will now elaborate on these points.

I begin the analysis by distinguishing between the appellant's individual claim and the claim for class relief.

I will first take up the jurisdictional aspects of appellant’s individual claim for relief and then discuss the implications of his request for certification of the action as a class action.

The appellant’s suit on his own behalf was brought to review a decision of the Secretary denying him child’s insurance benefits.

As such, that suit was governed by the second sentence of Section 205 (h) of the Social Security Act.

That sentence provides in essence, “No decision of the Secretary shall be reviewed by any court except as provided by Section 205 (g) of the Act.

In turn, Section 205 (g) requires an exhaustion of administrative remedies by restricting the District Court’s jurisdiction to the review of final decisions made by the Secretary after a hearing and within 60 days prior to the filing of the complaint.

Now, it is conceded here that the appellant did exhaust his administrative remedies and the District Court concededly had subject matter jurisdiction over his claim.

Our contention however, is that the District Court did not have jurisdiction to grant an appellant’s request for individual injunctive relief.

Section 205 (g) as it has been made clear, confers on the District Court’s power only to and I quote from the statute “Enter a judgment affirming, reversing or modifying the decision of the Secretary.”

Justice Potter Stewart: It has been suggested that if an individual claimant appeals the Secretary’s decision, after having exhausted his administrative remedies, ask for a review of that in a District Court upon the ground that the statutory provision upon which the Secretary relied in denying the claim is an unconstitutional provision that that is the functional equivalent of requesting a District Court to enjoin that statutory provision, and therefore, a Three-Judge Court is required.

That is what I understood, the answer of your brother to be to my question?

Mr. Jones: Well, if his argument is that a reversal of a denial of benefits on the grounds that the statutory classification is unconstitutional is in fact an injunction --

Justice Potter Stewart: It is a functional equivalent of an injunction, he seem to phrase it, but that is what I understood he was saying?

Mr. Jones: It may have the same consequences as an injunction as to the individual plaintiff, but it certainly is not an injunction in the sense that Section 2282 of the judicial code refers to injunctions.

It does not disrupt the operation of the Act in its entirety as to all persons --

Justice Byron R. White: (Inaudible) at least it might (Inaudible) with respect to the entire class?

Mr. Jones: That is a question that I was going to reserve until I reached the discussion of the class action aspects.

Justice Potter Stewart: (Voice Overlap) or for everybody in that judicial district until it is reserved or stayed, would it not?

Mr. Jones: Well, the district judges in that court might disagree, but it is --

Justice Potter Stewart: It is all the effect that an injunction could have?

Mr. Jones: But it is certainly true that if a District Court or a Court of Appeals exercising purely legal and non-equitable powers, holds a statute unconstitutional, that is the law for that district or that Court Appeals, that circuit.

Nevertheless, that has never been considered to be the kind of injunctive relief that requires a Three-Judge Court.

Justice Byron R. White: I have thought that in a typical Three-Judge Court situation that -- you need is a Three-Judge court just, even though you only challenge the application of the statute in a particular case, Duncan v. Walker?

Mr. Jones: I think that --

Justice Byron R. White: Is that right or not?

Mr. Jones: I did not think that that was right.

I thought that if what was being sought was merely the provision of benefits to an individual claimant, that is the equivalent of a reversal of the denial of benefits to him than (Voice Overlap)

Justice Byron R. White: Suppose I would go into court to enjoin and claim that as applied to me, to this set of facts, this statute is unconstitutional.

It may be quite constitutional like any other circumstance known to man, but in this situation, it is unconstitutional.

Now, does that require a Three-Judge Court?

Mr. Jones: I think not.

Justice Potter Stewart: Well, your answer would be yes to the injunction?

Mr. Jones: He has not stated that yet.

Justice Byron R. White: Yes and he wants an injunction against its application to him?

Mr. Jones: Well then, that kind of injunctive -- I guess the frank answer is that I am not sure Mr. Justice White.

Justice Potter Stewart: What constitution was applied?

Justice William H. Rehnquist: And yet in a declaratory judgment, expressing that a precise same proposition of law, it does not require a Three-Judge Court?

Justice Byron R. White: Well, that is true even if you declare (Inaudible) on its face?

Justice William H. Rehnquist: Yes.

Justice Byron R. White: So, that is not really involved.

Is this any different from the Duncan v. Walker situation where this statute has just not been permitted to be applied in this case?

Mr. Jones: And the argument is that even though, as in Lucas, for example, it may be a reversal, nevertheless, it is a reversal that is equivalent to an injunction.

I mean, that -- one of these cases (Voice Overlap)

Justice Byron R. White: Well, the Secretary's decision goes out -- the Secretary’s decision goes out the window and may not be enforced because the statute is unconstitutional?

Mr. Jones: As to this individual.

Justice Byron R. White: Exactly.

Mr. Jones: But, that is not the kind of injunction that prevents the Secretary from -- and a decision by the District Court reversing the denial of benefits as in Lucas is not the kind of decision that disrupts the operation of the Act as to other parties.

Our point here is that, as to the individual and I am only now discussing the individual aspect to the case, there was no power to grant injunctive relief.

All that the court could do was reverse the decision of the Secretary and that reversal is not the kind of injunctive disruption with the operation of the Act that warrants the convening or requires the convening of a Three-Judge District Court.

Justice William H. Rehnquist: But if you were going to analogize the reversing because the Section was unconstitutional to some other form of more traditional relief than that contemplated in 405, could you not just as easily analogize it to a declaratory judgment as to an injunction?

Mr. Jones: I think it would be more accurately and that will.

When there is only one plaintiff involved, really it seems to me, we are in a large part playing with words because whether it is more closely analogizable to a declaratory judgment or an injunction or a simple reversal of the denial of benefits, the effect is the same.

And it seems to me that if this Court is to construe any request to reverse a decision of an administrative agency on the ground that it is the application of an unconstitutional statutory provision, the Court construes every such request as a request for a Three-Judge Court injunction.

A jurisdiction of Three-Judge courts is going to be enormously expanded.

Justice Potter Stewart: (Inaudible) numerous decisions of this Court saying that that statute should be very narrowly construed?

Mr. Jones: That is correct, Mr. Justice Stewart.

Justice John Paul Stevens: Mr. Jones, am I correct in understanding, I suppose it is obvious, the District Court here is exercising original jurisdiction rather than an appellant jurisdiction, is it not? The word “reverse” is somewhat unusual for a District Court?

Mr. Jones: Although there are many circumstances in which a district in effect has a review of authority over administrative agency.

Justice John Paul Stevens: But the order, when it is changed is -- the District Court does not in effect enter an order for the Secretary.

It orders the Secretary to do something?

Mr. Jones: Well, it reverses the decision of the Secretary, denying the benefits.

Now, I think that that is a kind of appellate jurisdiction, although within the framework of Article III, since the administrative agency is not a court, it is, of course, original jurisdiction for those purposes.

Justice John Paul Stevens: Other than this statute, does the District Court have jurisdiction to reverse orders?

Is it not after traditional ways in which a District Court exercise original jurisdiction when it orders somebody to do something?

Mr. Jones: I am not sure what the review provisions with regard to other administrative agencies is.

I would suspect that this is not an extraordinary form of granting traditional view, that it is relatively common to provide for a review by reversal, but I am not positive to that.

But it summarizes that our position as to the individual claimant.

First, we believed that there is no injunctive authority as such because the statute does not embrace it.

Secondly, that if the statute does, in fact, embrace such injunctive authority and nevertheless injunctive relief would always be inappropriate as to an individual claimant because an individual claimant always has an adequate remedy at law in the form of a reversal of denial of benefits.

An individual claimant never needs an injunction.

The opposing counsel suggested that he might need preliminary injunctive relief.

I would make two comments with regard to that.

First, such preliminary relief would be no more appropriate here than it was in Samson against Kennedy, excuse me, Samson against Murray, where it was held that the Back Pay Act prevents injunctive relief on behalf of the individual federal employees who are seeking to avoid dismissal.

And secondly, as opposing counsel has conceded, preliminary relief of that kind is not the kind of relief that would entitle the claimant to a Three-Judge District Court.

Therefore, it is our review that if the appellant is to prevail in this case, he must establish that the class action was appropriate, that a Three-Judge Court was required, if at all, and we think not, only if a class action was appropriate.

Justice Byron R. White: What happens Mr. Jones, if the Secretary says, “Well, it is a fine decision,” I am just not going to enforce it and I am just -- somebody will have to do something to me pretty bad about that decision.

Was he in trouble with the District Court or not?

Mr. Jones: No, certainly not.

He could not be held in contempt by the District Court if he refused to obey its order.

Unknown Speaker: You have to admit that?

Mr. Jones: Well, I think it is quite clear.

I would think that anyone seeking to hold the Secretary in contempt for refusing to obey the decision would have a very difficult role.

Justice Byron R. White: Do you think he could get -- you think the person then could get any more relief from the District Court?

Mr. Jones: You probably could get a mandamus --

Justice Byron R. White: He could go back and get a (Voice Overlap) ordering him to obey?

Mr. Jones: -- probably get a mandamus order and enforcing the order if the Secretary refuses to obey --

Justice Byron R. White: Under another head of jurisdiction?

Mr. Jones: The Congress of course assumed that the Secretary would abide by final decisions of the courts and determined that it would be unseemly and inappropriate and unnecessary to subject the Secretary to coercive orders.

I do not think that is a fair method of interpreting the statute to attribute that fate to the Secretary.

Justice Potter Stewart: (Voice Overlap)

Mr. Jones: Excuse me Mr. Justice Stewart.

Justice Potter Stewart: Yes.

I am sorry that I have interrupted you.

Mr. Jones: Yes sir.

Justice Potter Stewart: I am just curious.

Let us assume a reversal by the District Court.

Just let us say, the weight of the evidence, then is that the end of the matter?

Does the District Court just enter a judgment, granting the claimant what he has asked or does he go back to the Secretary for a new proceeding consistent with (Voice Overlap)

Mr. Jones: It is like remanded to the Secretary and the Secretary then pays the benefits.

Justice Potter Stewart: Does the Secretary then (Voice Overlap)

Mr. Jones: If the government does not appeal.

Justice Potter Stewart: Does the Secretary issue an order?

Mr. Jones: I do not believe so.

I think that the payments were simply made.

Justice Potter Stewart: As a result of the District Court’s order?

Mr. Jones: That is correct.

Justice Potter Stewart: Perhaps it is not important.

Mr. Jones: Let me turn now to the question of the propriety of class relief.

We begin with the fundamental proposition that the District may entertain a class action only if it has subject matter jurisdiction over the claims of the individual members of the class.

Now, appellant contends here that subject matter jurisdiction over the claims of the class existed here under the mandamus statute or the administrative procedure act and we answer, that contention, I believe in full in pages 13 through 18 of our brief in this case, not only summarize our points with regards to that aspect of the case.

We point out there that first, this Court in Salfi rejected that contention.

The Court held that Section 205 (h) of the statute, third sentence of that provision, forecloses all non-Social Security Act sources of jurisdiction.

Secondly, we think that the Salfi decision is plainly correct because it effectuates the clear congressional intention of restricting social security suits to cases in which the claimant has exhausted his administrative remedies as provided by Section 205 (g).

And third, we point out that if the appellant’s position with respect to the mandamus statute were accepted, that would lead to results so anomalous as to be untenable because it would provide for jurisdiction only as to those persons as whose claims were the least right for adjudication.

Accordingly, for all these reasons, the only source, the only possible source of subject-matter jurisdiction over the class was Section 205 (g), but the jurisdiction conferred by Section 205 (g) clearly did not extend to the claims of the class designated by the appellant.

Section 205 (g) confers jurisdiction, only over suits brought to review a final decision of the Secretary, after a hearing, made within 60 days prior to the filing of the complaint.

The appellant in his complaint and the District Court in its opinion, defined the class far more broadly to include and I quote here from the District Court opinion, “All of those persons otherwise eligible for child’s insurance benefits who cannot qualify for such benefits solely because they cannot meet the requirement that they would be living with or supported by their father on the date of his death.”

That class embraces many individuals who had no right to sue in their own behalf under Section 205 (g) and the District Court plainly had no subject matter jurisdiction over the claims of that class.

Thus, our position is that here as in Salfi, the designation of a class and a complaint was plainly deficient.

The complaint contained no allegations that the class members and I here quote from the Salfi opinion, “have even filed an application with the Secretary, much less that he has rendered any decision, final or otherwise.”

For the government, this is probably the most important single point in this case.

The government’s primary interest is in obtaining a re-affirmance of the Salfi holding that the District Courts in social security cases may not award class relief to individuals who do not themselves have a right to bring suit under Section 205 (g).

Problems faced by the social security administration in administering very broad and loosely defined classes, a relief as to such classes, I mean, in some cases, be literally insurmountable.

There is no statutory basis for awarding benefits to such class and it should be awarded.

In propriety of the class designation and Salfi was the end of the matter.

We think that it should be the end of the matter here as well.

The District Court lacked jurisdiction over the class that the appellant sought to represent, and therefore, was without power to consider any request on behalf of that class by the injunctive relief or otherwise.

It follows that the Three-Judge Court was not required to be convened and this Court does not have jurisdiction.

Now, with that said, as I understand the appellant’s argument here, he seems to contend that the District Court, in fact, had jurisdiction over a more narrowly defined class of claimants and that the proper remedy, although he does not expressly so state, maybe to vacate the decision below and remand it for recertification of the class.

I would to take some time to explore the ramifications of that suggestion.

It is true that it is a purely technical matter.

Section 205 (g) does appear to leave some room for possible jointer of a very narrow class of plaintiffs.

It permits the District Courts to review the decisions of the Secretary, final decisions to the Secretary, rendered after hearing within 60 days of the filing of the complaint.

Thus appellant’s redefined class would presumably be those applicants for child’s insurance benefits whose applications were denied on the same basis, the same grounds as the appellant’s request within 60 days prior to the filing of the appellant's complaint.

I would make two points with regard to such a class.

First, it is very unlikely that the certification of such a class would be permissible under rule 23 of the Federal Rules of Civil Procedure.

This is so for two reasons.

First, Rule 23 (a) (1) requires the class to be so numerous as to make jointer of individual plaintiffs impracticable.

This requirement is not likely to be met by appellant’s class.

Indeed, the appellant may be the only member of this class and if there are any other members, they are very likely to be few in number.

Second, Rule 23 (a) (3) requires that the individual plaintiff’s claim be typical of those with the class.

That is not the case here and it is not likely ever to be the case or very likely to be the case in the social security context.

Most suits are for review, and this is true of appellant’s suit here, may or will turn upon the substantiality of the evidence on which the Secretary’s factual findings were based.

The appellant, for example, contested the Secretary’s finding that his father had not been living with or supporting him at the time of death.

Similar factual claims might be made by every disappointed claimant that the appellant seeks to represent.

He has abandoned it here, but that does not bear upon the question of whether his class was properly certifiable under Rule 23 (a) (3) --

Justice Thurgood Marshall: Would all of those (Inaudible) must be decided by the District Court whether they have the sufficient number in the class? (Voice Overlap)

Mr. Jones: I would have thought that since the District Court could not issue, in our view, an injunction against the statute on behalf of the individual that only if the certification of the class was proper, would there be any substantial claim for injunctive relief that would have warranted the convening of the Three-Judge District Court.

Justice Thurgood Marshall: I thought that I talked about that suggestion if you go back to see if you can limit the claim?

Mr. Jones: Well, that it seems to me is a suggestion of what I am suggesting to the contraries that if you did that, if you follow that procedure, you would find that there would be no class that could be certified.

Therefore --

Justice Thurgood Marshall: How can you be sure of that?

Mr. Jones: I cannot be positive, but what I am suggesting --

Justice Thurgood Marshall: (Voice Overlap) let the District Court find out whether you are right or wrong?

Mr. Jones: Well, I have no serious principle objection to that Mr. Justice Marshall.

I think if the procedure was to require the Single-Judge District Court to make all of these determinations ab initio before convening to the Three-Judge Court, that that would be a perfectly appropriate method of dealing with these cases.

Justice William H. Rehnquist: Could a single district judge not -- supposing, a plaintiff in the position of an appellant here, files the claim, asks that it is moved as a class action on behalf of all those whose claims were denied within the past 60 days by the Secretary for the same reason is his was.

Could he not then, without necessarily asking for injunctive relief, simply say he wants all of those actions of the Secretary set aside?

Mr. Jones: That is my next point Mr. Justice Rehnquist.

That is quite alright, but what I was going to say is that if you surmount all of these hurdles as to the certification of the class, nevertheless injunctive relief is not appropriate as to that class.

What you would have is a class of handful of applicants for social security benefits.

All of them had two claims.

One, that the Secretary erred in finding that their father had not contributed to their support or lived with them at the time of his death and secondly, that if the Secretary’s findings were correct, the statute was nevertheless unconstitutional and what I am suggesting is that you had (Voice Overlap)

Justice Byron R. White: (Voice Overlap)

Mr. Jones: What I am suggesting is that --

Justice Byron R. White: Well, I know, but --

Mr. Jones: And therefore, the decision of the Secretary in all of those cases should be reversed.

Justice Byron R. White: And not enforced?

Mr. Jones: Well, Mr. Justice White, that of course is the result in any case in which the decision is reversed.

Justice Byron R. White: Yes, exactly.

Mr. Jones: But, it is not an order that is not be enforced in the same sense an injunctive order is, that is it is not subject to enforcement in the same method as an injunctive order.

Justice John Paul Stevens: Mr. Jones, why do you assume the first issue would be in every one of those cases?

Is it not possible that the class could be composed of persons who would admit they were not supported by their father and live with them?

Mr. Jones: There are two possibilities.

I guess, one would be that a person who had not substantial claim to have satisfied those statutory prerequisites would nevertheless bring a suit for review or secondly, a person might abandon whatever substantial claim he might have.

Justice Byron R. White: As the plaintiff did here?

Mr. Jones: Bur, the consequence of amalgamating all of these individuals and there may not be many of them, in a single class, would be in effect, if that approach is followed, to require those individuals to waive whatever factual claims they might have.

At any rate, it is difficult to conceive of how old those factual claims are going to be litigated in this multi-plaintiff suit for review of the Secretary’s decisions.

Justice Thurgood Marshall: (Inaudible) suggestion a man should be limited to those who are going to the constitution and all of it?

Mr. Jones: I do not think that he is so limited and if so, that would be a further constriction of the class and I am not sure that he would find -- if you had any members in the class to begin with, you would have even fewer now, I suspect.

Justice Thurgood Marshall: Well, I am the one who cannot take your word for that?

Mr. Jones: Well, what I was suggesting, Mr. Justice Marshall is that there are general principles that might lead the District Court to reach that determination, but furthermore as Mr. Justice Rehnquist points out, even if you surmount all those hurdles and certify a class composed of this small handful of plaintiffs, nevertheless, injunctive relief as such is not necessary because a reversal of the denial of benefits is appropriate as to each and everyone of the individual claimants.

Justice John Paul Stevens: Mr. Jones, just one another point.

If your basic argument is correct, am I right in believing that this Court had no jurisdiction in the Jimenez case?

Mr. Jones: That is correct.

The Court would have erred in assuming jurisdiction in Jimenez.

Justice John Paul Stevens: And that would just be an advisory opinion?

Mr. Jones: Well, I think that it would the law of that case and as a practical matter, the Secretary is going to accept it as the rule of law that is applicable in cases affecting other applicants for those benefits.

In short, to summarize very briefly, this Court lacks jurisdiction and we ask that the appeal be dismissed.

Thank you.

Chief Justice Warren E. Burger: Mr. Brown?

Rebuttal of C. Christopher Brown

Mr. C. Christopher Brown: The class that we ask would be defined practically in the same term as the class that was requested and granted in the Jimenez II case, which Mr. Justice Stevens authored for the Seventh Circuit quite recently.

It would be composed of people whose sole issue --

Unknown Speaker: What did Mr. Stevens do (Inaudible)

Mr. C. Christopher Brown: Authored.

He wrote an opinion in a case called Jimenez v. Weinberger which was the same Jimenez case as this Court had a couple of years ago, but on remand, it is coming back up again.

Unknown Speaker: He authored it or --

Rebuttal of Jones

Mr. Jones: Authored.

He wrote it.

He was the author of it.

He did not order it, I don’t think.[Laughter]

The class that we are requesting in this case is the same class that was found in -- well, I will call it Jimenez II to be a fair and probably defined class, consists of people who would only be contesting this one constitutional basis.

It consists of people who have filed applications for benefits.

It consists of people who have met the exhaustion requirements of 205 (g).

As Mr. Justice Stevens’ suggestion, what we would call Jimenez II, the class could be tolled by the filing of the initial complaint so that there would be a broad number of people in the class.

I personally have five clients who I think would be in the class right now.

It is a significant thing.

If there is a factual issue as to numerousity, the best place for that to be decided is in the District Court.

The District Court incidentally, did not have the benefit of this Court's Salfi opinion when it first encountered this case.

It think that it is only fair that the District Court, if we went on the merits, they got another chance to comply with Salfi and was not able to do so and Salfi was a surprise in many ways.

I think that this Court’s decision as to retroactivity and so forth are such that the District Court deserves a second chance to define and use the correct words in its class definition.

I have nothing further.

Chief Justice Warren E. Burger: Very well.

Number 6212, Norton against Mathews is therefore submitted.