CALIFANO v. SANDERS

Argument of Maurice Rosenberg

Chief Justice Warren E. Burger: We will hear arguments next in 75-1443, Mathews v. Sanders.

Mr. Rosenberg, I think that you may proceed whenever you are ready.

Mr. Maurice Rosenberg: Mr. Chief Justice and may it please the Court.

The question presented here is whether the Federal Courts have jurisdiction to review the refusal by the Secretary of HEW to reopen a disability claim.

The disability claim was presented and decided some seven years before, and the Secretary, at that time, made a decision denying the claim.

The history of the case falls into two chapters:

The first chapter was in the period January, 1964 to June, 1966.

In that period, the respondent made a claim to the Social Security Administration for Disability Benefits, it received initial consideration and was rejected; it received reconsideration and was rejected.

He asked for a hearing, he received a hearing, evidence was submitted, the examiner made a lengthy decision and in the lengthy decision which he rendered, the Hearing Examiner now an Administrative Law Judge, by title, the Hearing Examiner found that the respondent had not qualified for insured status up to the point when he had submitted his claim.

His insured status had come to an end in June of 1962.

He had not submitted his claim until 1964 and he was not in insured status at the time he contended when disability struck.

The Hearing Examiner further found that he was not disabled at all within the meaning of the statute at the time when he was within insured status.

The respondent then appealed to the Appeals Council in the Administration.

The Appeals Council affirmed the Administrative Law Judge, told in its affirmance, told the respondent that he had 60 days within which to take an action in the court if he were so minded.

He chose not to.

Instead, after seven years he brought the second round of proceedings before the Social Security Administration.

These embrace the period March 1973 to mid 1974.

In that period, he once again had initial consideration of the claim which he made.

He received reconsideration of that client.

He then asked for a hearing before an Administrative Law Judge, the ALJ decided that he had not presented anything warranting a reopening of his claim, which was based upon the same disability benefits period as the earlier round had been.

That is to say, the respondent showed no entitlement subsequent to June 30, 1962.

Accordingly, on the basis of Res judicata the respondent having shown nothing new in the second round proceeding, the Administrative Law Judge rejected his claim.

The respondent then appealed to the Appeals Council, and the Appeals Council affirmed the rejection on the second round.

This is the reopening round.

Following that rejection, the respondent moved in to the Federal Courts, now for the first time advised by Council.

In the Federal Courts, he claimed that under Section 205(g) of the Social Security Act, he was entitled to get the court review of the refusal of the Administrative Proceedings of the Secretary to reopen his claim.

The District Judge in the Northern District of Indiana dismissed his claim on the ground that Section 205(g) of the Social Security Act is not a proper jurisdictional footing for a request to review a claim to reopen.

He appealed, the Seventh Circuit dividing decided that although it was correct that Section 205(g) and the Social Security Act are not a proper jurisdictional footing for reviewing in the Federal Courts a denied reopening claim nevertheless under the Administrative Procedure Act there would be jurisdiction.

It was in that posture of the case that this Court granted the Government’s petition for certiorari.

There are several points to notice about this brief historical narrative.

One is that although without counsel throughout the Administrative Proceedings, the respondent exercised a number of options pursuing vigorously as he was entitled to do and should have done, the opportunities which the law afforded him to get consideration, reconsideration, and review again and again.

He came back to the Administrative Process after a lapse of more than seven years.

The Administrative Process has rules about such matters.

It allows a rejected claimant to come back within a year on virtually no new showing, and ask for reopening.

Within four years, after the final decision denying his claim, he can come back, and if he shows good cause, he can get a reopening.

Good cause usually goes to the evidence, new material evidence.

After four years, he may still go back, at any time, the regulations say, but in that event, he is limited in his return to the administrative process for reopening.

He is limited to showing that there was error of a clerical sort or an error on the face of the evidence.

It was the latter, sort of, evidence which the respondent in this case set up as the error involved, but the record does not say and we do not know to this date what the nature of that error in the evidence is.

The Government’s case here is simple, in two points.

It is that there is no jurisdiction bestowed on the Federal Courts by the Social Security Act to review a reopening denial and that there is no jurisdiction --

Unknown Speaker: The Government prevailed on that, the Court of Appeal did not.

Mr. Maurice Rosenberg: Yes Your Honor.

Unknown Speaker: Why do you raise it if you want it below.

Mr. Maurice Rosenberg: Your Honor, it is raised very strenuously by a respondent who argues that here, and we believe --

Unknown Speaker: Well, your petition -- I do not understand why your petition raised them when you want it below.

You were really -- what you lost on was Section 10 of the Administrative Procedure Act, didn’t you?

Mr. Maurice Rosenberg: Yes.

Unknown Speaker: And now you argue with a new statute so that disappears in the case too?

Mr. Maurice Rosenberg: Yes Your Honor.

Unknown Speaker: Well then, how much -- it is your case.

Mr. Maurice Rosenberg: No, Your Honor there is an explanation, intervening --

Unknown Speaker: (Inaudible) of the meaning of lost, you lost anyway, did you not?

Mr. Maurice Rosenberg: We lost below.

We have managed to lose on whatever ground.

The explanation --

Unknown Speaker: Well the obvious ground on which you lost was the Administrative Procedure Act.

You won that 205(g) was not a jurisdictional predicate.

Mr. Maurice Rosenberg: Yes Your Honor.

We won below on that and all of the Courts of Appeals have agreed on that.

However, my colleague says that this Court and its decisions in Weinberger v. Salfi and Mathews v. Eldridge worked to change in the necessary interpretation of 205 (g), and it is to forestall, or if I may use the term, abort any wrong turn by the Court in that direction that I raised the point now of 205 (g).

Chief Justice Warren E. Burger: But he did not raise it by a cross petition or any other way, did he?

Mr. Maurice Rosenberg: He did not raise it by cross petition Mr. Chief Justice, but he does set forth alternative grounds for affirmance one of which is the liberalization of Section 205 (g) by the interpretations of this Court intervene.

Chief Justice Warren E. Burger: And you take the position that he is entitled to defend the result on that ground, perhaps?

Mr. Maurice Rosenberg: Yes I concede to Your Honor that the respondent can raise a new point of such beyond (ph) appeal to defend his result.

First is to the Social Security Act and specifically Section 205 of the Act.

Our submission is that it precludes jurisdiction to review a denial of reopening of a disability claim.

The decision not to reopen does not come within the carefully drawn language of Section 205 (h) of the statute, and, if Your Honors please, I would like to call your attention to the specific language of Section 205 (h) since so much trends (ph) upon it, in this first argument.

On Page 2A of the Appendix to our brief, the Section 205 (a) appears in its three sentences.

It is to the second and third sentence, I call your attention.

The second sentence says, “No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or government agency except as herein provided.”

The third sentence says that, “No action against the United States, the Secretary, or any officer or employee thereon shall be brought under Section 41 of Title 28 to recover on any claim arising under this subchapter Title II of the Act.”

Section 205 (h) is a statute that precludes jurisdiction.

It talks in terms of non-reviewability of findings and decisions.

It talks in terms of no actions being brought.

So, it is preclusive with the narrow exception that is specified.

That is, the herein provided the exception, and that herein provided exception takes us a page ahead to Section 205 (g) which this Court has said, is the only way of reviewing a decision of the Administrator under the Social Security Act.

Section 205 (g) in its relevant phrase says that, “Any individual after any final decision of the Secretary made after a hearing, may go into court to bring an action in the District Court.

The rest of this section deals with the venue of the action, the time of the action within 60 days after a notice of the decision, the record which will be before the District Court, the Court's powers to remedy hereby the Administrator, the scope and standards of review that the Court will follow.

That is an integrated plan for a Court review of Social Security administrative decisions and it is precisely to that plan and that channel of court review that Section 205, by its preclusive language, points the Court in this case.

This Court had said that when the Administrator has made a decision, as said in Weinberger v. Salfi, whether a final decision or not a decision, when the Administrator or Secretary has made a decision, then 205 (g) gives the only avenue for access into the Court.

If the Court please, I do not find in the Salfi decision or in the Eldridge decision any indication that those decisions were calculated to change that carefully wrote (ph) statutory plan, which is very well balanced and which brings about a harmonious relationship so far as the law should require between the Court’s power to review and the Administrator’s power to decide in the first instance.

There is nothing certainly in the language of Section 205 (g) to suggest that a decision such as is before the Court in this case, a decision not to reopen, is a final decision made after a hearing.

Of course, it is made after a hearing in some chronological and temporal sense.

But, it is made after a hearing in the sense that, that phrase occurs in Section 205 (g).

Unknown Speaker: What if the Secretary were to grant a hearing in connection with the application to reopen, would that make his denial of reopening reviewable under 205 (g)?

Mr. Maurice Rosenberg: Your Honor I believe not.

I believe that it would not be a final decision after a hearing, in the sense in which a final decision is used in that statute.

It is my submission that the final decision after a hearing is intended to deal with the determination of the core and hard issues in the case, that is, a final decision made after a hearing on the merits when the merits of the case have been exposed and a decision finally made upon them.

There isn’t any liberalization of that language, if that is the term, in Salfi and Eldridge.

They did not rewrite Section 205 (g) which would be necessary to do.

Those cases dealt with extraordinary circumstances and issues, the issues had to deal with the constitutionality of standards or procedures under the Social Security Act.

This is an ordinary case, the application of standards by the Administrator to facts.

There is nothing extraordinary about this case and it would be absurd to suggest, I submit, that the respondent can carry an open-end statute of limitations, moved for a rehearing or reopening, and upon getting it, whether with or without a hearing, have a brand new period of time in which to go to court.

Justice William H. Rehnquist: Your contention and is of the phrase, final decision made after a hearing both limits the review on both sides, the person can not come in before that is handed down, but he can not come in a long time after it is handed down either.

Mr. Maurice Rosenberg: On this, Justice Rehnquist, my contention is substantially as you say, but I would point out that the language, a final decision made after a hearing, does refer to a hearing that is required by the statutes.

The hearing on reopening is not a hearing that is required by the statute.

That is the hearing and that is the matter of grace (ph) with the Administrator.

If the Administrator or if the Secretary chooses to give a hearing at that time that should not prolong the opportunity of the respondent to go in to court.

Otherwise, the whole idea of a 60-day limitation on entering into Court is defeated.

Chief Justice Warren E. Burger: We will resume later at 10 o’clock Mr. Rosenberg, Gentleman.