APPENDIX A ~ ~ CrncurT. K o. 5±7 -September Term, (Argued January.l/, 1975 Decided April17, 1975.) Docket Ko

Transcription

1 APPENDX A ~ ~ UNTED ST~TES COURT OF APPE1.tLS~ ~ FoR THE S E co~o CrncurT K o. 5±7 -September Term, (Argued January./, 1975 Decded Apr17, 1975.) Docket Ko Cuu-nu FRosT, et a., v. Pantffs-Appeees, CASPAR WED.""BEP.GER, as Secretary of the Unted States Department of Heath, Educaton and Wefare, Defendant-Appeant. Before: WATER:.,~..~, FR E~DLY and GuRFEN, Crcut Judges. Appea from a judgment of the Dstrct Court fot t.he Eastern Dstrct of Xew York, Anthony J. Trava, Judge, 375 F. Supp (1974), decarng unconsttutona the procedures of the Soca Securty Admnstraton whereby ;c::::.:~::.: L:.::..; ~: " ;r to SrY\-ors c1drt:. gv hp. rp.dnced because of cams of egtmate chdren whch woud cause the tota benefts to exceed the statutory maxma wthout a pre-reducton ora evdentary hearng. Reversed, wth nstructons to dsmss the compant.. '' 2919 A-1

2 D.\Y1D )L GoHEx, Esq., Department of Justce, \\ asb21gton, D. C. (Cara A. Hs, Assstant..:\..ttorHey Genera, Davd G. Trager, "Cnted States Attorney, \Yam Kanter, E:;q., of Co~mse), for.appeant. ExE H. Rnx...\.CH, Esq., Rochester, Ne'v York O,onroe County Lega Assstance Corporaton, Kenneth Cohn, Esq., and Nassau County Law Servces Commttee, nc., of Counse), for Appeees. FRENDLY, Crcut Judge: Ths appea dspays a new facet n the deveopng aw of due process wth respect to admnstratve acton by the wefare state. \\J.Jereas such controverses bave typcay nvoved dsputes between the Government on the one hand and a ctzen or cass of ctzens on the other, here the utn:w.te confct s between two categores of c_zens and the Go\ernment's nterest s to pay tbe tght -..._ <E!_e. Before reacnng the probem of what due process requres n ths context, we must traverse a procedura thcket.. The Statutory Bac;.gr~und and the R_eguatons n Contr ove rsy. Pursuant to 42 U.S.C. 402(c1)(1), (d)(2), and (g) (1), the dependent chdren and the spouse, see Wenberger v. Vesenfe!d. 43.S.L.W. 1!393 (1975) of an ndvd.ua1 \\ ho ded as fuy nsured under the Soca Securty Act, 42 U.S.C. 41-±(a), are eacb entted to a monthy payment for a specfed perod equ>rent generay to tbree-quartcrs of the prmary nsurance amount of the decedent. n no case, howe, er, may the tota benefts to a famy e:s:ceed 2920 A-2 \.

3 \ ; a specfed maxmtm1, 42 U.S.C. 403(a), set out n the tabe accompanyng 42 U.S.C. 415(a). Pror to 1 :J6.5 the ony chdren egbe for benefts purswmt to ±2 L..S.C. H 402(d) (1) and (d) (2) were chdren who coud nhert from the decedent pursuant to app-. cabe state a'\\ or whose parents had partcpated n a ceremony ':hch \'.-odd have resuted n a vad marrage except for one of two specfed ega mpedments. 42 U.S.C. ~ 416(h)(2) (...--\.) & (B), 402(d) (3). n 1965 Congress amended tbe Act to ncude other egtmate chc1ren, Soca Securty Amendments of 1965, Pub. L; No , 339(a): 19 Stat. t109, where, nter aa, the decedent wage earner, before hs death, acknowedged paternty n wrtng_. was decreed by a court to have been the father, or ''as ordered by a court to contrbute support to the chd because o~ paternty. Ths was codfed as 42 U.S.C. 416(h) (3) (0) (). 1 Congress agan amended the Act n 1968, Soca Securty Amendments of 1961, Pub. L. No , 163(a) (1), 81 Stat. 872, 2 to dea wth the stuaton, apparenty not con- 1 A companon pronson, 42 U.S.C. 416(h) (3) (C) (), permtted e gtmate chdre! to rece>e benefts attrbutabe to a deceased wage earner e;en "here the requrements of 416 (h) (3) (C) () 1avc r..ot been met f "such :nsured :.nd>dua s shown by evdence satsfactory to the Secretary,to ha n~ bee! the father of tte appcant, and such nsured ndntua ;,a3 \ :.ng wth or contrbutng to the support of the appcant at the tme such nsured nd>dua ded." Ths provson was recenty strnck down by_ a "dstrct court on the ground that t voated the rghts of affected egtmate churt::n uter ~he ecj_ua protecton cause n that t mpo;;ed an addtona requrement to estabsh egbty-makng a showng of sppport f the!~ured v.:;.;,r. earuer wa~ not vng wth t!:je egtmate chdren-not faced by egtmate chdren. Ths was fo.!nd not to satsfy even a ratona bass test :n that dsfa>o.rbg "the offsprng of a c"asua ason" couc not sen e any egtmate go\ e=eat..' nterest. Lucas v. HEW, 43 U.S.L.W (D.. R.. Feb. 25, 1975). 2 Ths amend!::jent "as codfed as 42 U.S.C.. 403(a) (ast sentence): Whene;er a reducton s made under ths subsecton n the tota of monthy benefts to whch the ndvduas are entted for any month 2921 '

4 1-1 ' tempatcd by the 1965 egsaton, 'vhere t1w ncuson of cg tma tc chdren woud rase tho tota above tho statutory m::n:mum. 3 Tb.c 19GS amendment provded that when the tota be11efts \\oud exceed the maxmum, any reducton shoud frst occur n the benefts payabe to chdren made egbe by the 19G5 amendments; the effec~1s was to excude these egtmate chr en atogether when th;bene.fts p~e to the wdow and other chdren reached the mnxmum. 4 Ths provson was hed unconsttutona n Grffn' Rchardson, 34:6 F. Snpp (D. 1d~) (threeon the bas.s of the wages and sef-empoyment ncome of an nsured ndvdua, eaeh s:1ch beneft other than the od-age or dsabty nsurance ;eneft sha be proportonatey decreased; except that f such tota of benefts for such month ncudes any beneft or benefts under secton 402(d) of ths tte whch are payabe soey by reason of sec ton 416(h) (3) of ths tte, the reducton sha be frst apped to reduce (proportonatey where there s more than one beneft so payabe). the beuefts so payabe (but not beow :zero).. ' 3 The ameut;ent to 42 U.S.C. 416(h) was added by the Senate Fnance Commttee to H.R. 6575, 89th Cong., J st Sess. (1965), as new 340. Nether the report of that commttee, S.Rep. No. 404, 89th Cong., 1st Sess. (1965), nor the Conference Report, H.R. Rep. No. 682, 89th Cong., Jst Sess. (1955), n whch the House acceded to the Senate amendment, contans any anguage whch su:;gests that the egsators were cognzant of ths possbty. See S.Rep. No. 404, s11pra, n u:.s. Code Cong. & Admn. News 1943, , 2206 (1965); H.R. Rep. No. 682, s1cpra, n 1 "C.S. Code _Con g. & Admn. News 2228, 2260 (1965). 4 The Senate >erson woud hr:ve..ted th, e(.:ct of th" umendmcnt to chdren who were egbe n August, 1965, and whose benefts were reduced because of the 1965 amendment; chdren who became egbe afte,. the 1965 a;endment woud be subject to the puv n'1s of that amendment,.e., the shares of a chdren, egtmate and 1egtmate, woud be recuced proportonatey to the same amount. See S.Rcp. No. 744, 90th Con g., 1st Se;s. (1967), n 2 U.S. Code Con g. & Admn. News 2834, 2345, 3108 (1967). Tbe Senate verson was thus ony a "savngs cause." Ths >erson was rejected n mportant part n conference and the amendment was made appcabe for any c1dren whose current or future enttements were reduced as a resut of the 1965 amendment. See H.R. Rep. :Xo. 1030, 90th Cong., 1st Scss. (1967), n 2 U.S. Code Con g. & Admn. :\ews 3179, (1967). ~ A-4

5 .. '-,. '.. ' - :, f 1 judge court), S!!Wry affn.!;_cd per c7.wam, 409 U.S (1972)," on the g-::ound that the dscrmnatory cassfcaton n t ;er...-cc no egtmate state nt.rest and was thus voatrve of the due process rf hts of the cass of egtmate chdrer'. who \\ere pantffs n that sut 'Ths decson made t necessary for the Soca Securty Ac1mnsb:aton (SS2. ) to revse ts procedures, uuder authorty of 42 "C'.S.C. ~ 205(a), for handng cases where the addton of cbcren camng to be ~ntted to benefts under the 1965 amendments woud resut n exceedng the statutory ma:s:m::u:n, the vadty of whch has not been questoned. Of. Dandrdge v. Tfams, 397 U.S. 471, (1970). The ren3ec1 procedures, ncorporated nto the SSA Cams.anua, \\ere desgned to permt the re,vorkng of a cams "as though the [1968] provson had never been enacted," Cams )1anua T305, and to provde a bene- ) fcares whose benefts were gong to be reduced wth "a detaed expanaton of the reason for the reducton.n d. T30S(b). Benefcares \\hose benefts were to be recnced. must be notfed pror to the recucton, d. T315, by an SSA Revewng Offce, ',\hd. \\Onc1 process the award for the newy entted egtmate chd but woud "dary" th.e case for 45 days and not effectuate a beneft check reducton unt the opetatng month after the processng of any protest fed wthn that perod. c. T310(c). The notce expj.aned tnat a "recent court decson" requred equaty of treatment for a chcren of a wage earner who ded fuy mmred and that, as a resue> ttc r.jonthy benefts of thebenefcares named n the notce had to be reduced to an amount specfed n order to pay benefts to other named chdren who qua:..+ec uncer 42. U.S.C. 416(h) (3). The notce was to specfy under w'c.ch subsecton of 42 U.S.C. 5 Three Justces woud ha>e set the Secretary's appea for ora argu ment. ; _-.--, ~~ :

6 \ ~. - ~ 416(h) (3) the::~ ch:drc n quafed and show the "exad bas~'' for that d~;t e rmna ton. The notce further nvted the bcne:5.c:ar; or hs r2yre.:;cntatve to submt ~ray evdence wthn 30 days to p : oh that the egtmate chdren do not q uaefy- o::- tk: ~, for some other reason, the benefts of the beu E: 2 :::~ary SDOt<:d not b~ reduced. Cams Manua T315. f, bas ~ J upon ths no~ c e, the benefcary vsted an SSA Dstrct Of'.6c:2, he ';\a:; g\-en a compete expanaton for the acton and had tb.<: rght to nspect the orgna evdence upon v.-hch the SS.A. determned that a chd was entted to partcpate n the benefts under 42 u.s.a. 416(h)(3). f that endence -was not mmedatey avaabe, the Dstrct Off.::e "as to send for t. f the benefcary ne\ertees3 ee-cted to protest and to offer evdence to dspute tbe vaedty of the determnaton of new enttement, the Dstrct Offce was to prepare a report descrbng the corrtact betv;-een the benefcary and Dstrct Offce personne and to forn ard that aong wth the evdence submtted to the Renewng Offce, whch woud detenne '~whether [the] e-.-dence casts doubt on the orgna detcrm.r!.aton." d. T30S(b). f a protest was rece...-ec1 by the Revewng Offce pror ~o actua do~mward adjustment n the beneft.checks of the current benefcares, that s, wthn 45 days of notce and such.addtona tme as effectuatng that adjrstment wthn SS~ woud b.ke, d. T310(c) (3) (A), a branch of the Renewng Offce was requred to revew the fe fc r -the case, requestng an;:- necessary addtona nformaton and carfc-aton. "f tb.e evc!cnce or argt:gp.pt sh1m,trc0 does not cast doubt on the orgna detennn.aton that the chd s entted under[-!~ U.S-C. 416(h)(3)] (a protest wthout snbstant\e proof does not cast doubt upon the orgna determnaton)," the benefts were a djusted and the benefcary w-as nfoted of the bass of that reducton '' ' ~... "':. ~~.~... ~ A-6

7 ' and ts effect'e date n a notce whch advsed hm of hs rght to petton for reconsderaton of tho adjustment. f a protest was rece\'ed after the adjustment was _made, t was treated as a request for reconsderaton. Cams.anua T310(c). f the benefcary requested recons deraton, a rcvew~g offcer n t~e nc1epe:1dcmt Reconsderaton Branch reexamned the cam and produced a wrtten Reconsderaton Determnaton, smnmarzng the evdence and aw and deverng a reconsdered determnat.on. f ths was aso acverse to the benefcary, he coud request a fu evjccntary hearng before an Admnstratve L-aw,Judge of the Bureau of Hearngs and Appeas, wth attendant rghts of admnstrat"w appea to the Appeas Counc and of judca revew, 42 U.S.C. 405(g). T. The Facts and the Proceedngs n the Dstrct Co~wt... J t 1\ ' ( Pantffs, the mdow and two egtmate chdren of a fuy nsured, deceased wage-earner, Chares Frost, Jr., had been rece,ng mother's and,survvng chdren's nsurance durng 1973 of $ for Mrs. Frost and a ke amount for each chd. The wdow, Cauda Frost, had fed for these benefts on August 26, 1968, fve days ~fter the death of her husband, from whom she had bee:r. separated for some tme: On February 15, 1973, the SSA notfed these benefcares that ther benefts woud.be reduced to $95.70 for each camant as a. resut of the SSA's c, -~~::;.Jn~ton t:u.at Cnares Frost, Jr., was the fat er of two egtmate chdren, Chares E. and Tna L. Frost, whose mother, Loa Coodge, had apped for benefts on behaf of the former on August 26, 1968, the same day Cauca Frost fed her appcaton, and on behaf of both on.apr 8, 1969, a short tme after Tna was born. Xo benefts were a\varded at the tme ~ A-7.

8 because of the operaton of the 1968 amendment dsfavorng egtmate chdren, but the appcaton was granted effectve ::\r.rc:h, 1973, thereby reducng; the mnounts avaabe to Cauda Frost and her two chdren fnthered by Chares Fro ~ t 1 Jr. Seemngy the protest step n the SSA procedure was omtted, see 375 F. Supp. at 1315 n.5, but \rs. Frost cd request teconsc1eraton on February 22,C after \\ hch she recend wrtten notfcaton that the decson to grant benefts to Chares E. and Tna Frost and to reduce the benefts payabe to hersef and her chdren was deemed correct n a respects by the Reconsdera-. ton Branch. She thereupon caed for a fu evdentary!tearnj. Before the hearng coud be hed, Mrs. Jhost fed ths acton..... n the Dstrct Court for. the Eastern Dstrcf of New York on behaf of hersef, of her chdren fathered by Chares Frost, Jr., and "of a persons who now or may n the future be entted to survyors' benefts under the.a.ct -whose benefts have been or may be reduced wthout a pror hearng." The compant aeged that the ~ SSA procedures dened c~ne process ~eeause. they f~ed. to prot e f o" an ora ev1 en mry re-rec uc 1 1 heanng; t sought decaratory and temporary ~me permment njunctve reef as -we as restoraton of beneft~.. The dstrct ccn1rt dened a temporary restranng order and a premnary njunctron on November 12, 1973~ wthout prejudce br,t o.~. c1ered the Secretary to conduct a fu hearng \\thn a month; The hearng was hec N 6vem- ' 6 Chares Frost :1dmtte!y had been vng wth the mother of the two egtmate chdren and had been named as father on ther brth certfcates. The ony mportant bases for Mrs. Frost's dsagreement wth the nta determnaton were her statement that Mr. Frost became mpotent eary Lr 1966 and the absence of any wrtten consent on hs part to beng r.am,.d as father n the brth certfcates, see New York Pub. Heath L. 4135(2), somethng that was manfesty mpossbe n the case of the po.:~thcmous chd A-8

9 '. " J :., ' 1 1.' { ',,.. :. "[ ',.. :. ber 27, 1913, and the admnstratve aw judge, on March 4, 1974, rendered <: decson that the de termnaton of Chares' and Tna's status under 42 U.S.C. ~ 416(h) (3) and the consequent necessty to reduce benefts to :Mrs. Frost and her two chdren.':-~e correct. \Y e were nformed at argument that the mdter was before the Appeas Counc. On X o\ember 16, 1973, pan tffs moved for a decaraton that the acton couh be mantaned as a cass acton, F.R.C>.P. 23(h) (2), and, at ora argmen~ on the moton~ December 8,. 1973, for summary judg ment. The Secretary contested cass acton des-gnaton, camed that the dstrct cour~'s drecton and the hodng of a postreducton H.'?.r!ng had made the acton moot and that pantffs had faed to e~haust ther admnstratve remedes, and son;ht snm1nary judgment.both on these grounds and on the merts. Wth the agreement of the partes, 375 F. Supp. at 1316, a rung on the cass acton request was postponed pendng determn::tton of the summary judgment motons. On ~ay ±~ the court rued generay n p1entff's fa, or, 375 F. Snpp (E.D.N.Y. 1974). t concuced t'!j.a t phntffs had sa tsfec the requrements of R~1e 23 JQr the mantenance of a cass acton;:.that : sece p}a~ntffs co:.1d prqpery haye represented the cass when the <>.cton ; :as brought, the subsequent hoc~ng of a pos~-rcdu.cton hearng at the court's drecton dd not depr...-c them of f!ja t sta hs; that the acton w~s not moot: thn t t!.!e court :C.1c jnrsc1ctcn; that defendant's e:s:hanston ar5.1ment ncs:ec mert; ~me that faure to accord a prt>-rect.~cton or-d en::'!entary- hearng was unconsttuton. 'Whe d.:.!:ng an nj~mcton, the court granted decbratc:ry reef. ts order <;sncd Hay 28, Subsequent to the entry of judgment, the Secretary moved for an orde:::- to amend the judgment. He contended that the cass acton rung was erroneous because notce 2927.~~ ~-.. -~ A-9

10 to members of the ca::::::, as aegedy requred by Esen v. Carse cf J tj.r:g_a:::,!, -- U.S. --, 40 L. Ed. 2c1 782 (197±), had not been g:,en and that, the cass acton havng faed, the ca:::e was moot. The moton was dened on Juy 1, 1974:. Tb::: appea foowed. TL Jursdcton. Athough the Se:?retary has not contended that the acton was not wthn the stah1tory jursdcton of the dstrct court, we mu:;t consder the matter, as Judge Trava dd, 375 F. Snpp. at 1319-::0. The probem s the one encountered n most actons questonng the consttutonaty or nterpretaton o: s~atu~e3 or r'eguatons governng federa wefare or othe-r enttements, namey, the certanty that the cams of the na:ned pantffs do not satsfy the $10,000 jursdctona amo<mt requrement of 28 U.S.C. 133P and the doubt whether aggregaton of the cams of the cass woud be permssbe under Snyder v. Harrs, 394 U.S. 33:2 (1969). See Js >.Rchardson, 464 F.2d 995, 1001 (2 Cr. 1912). We fnd t unnecessary to determne \rhether these dffcutes precude jursdcton under 28 U.S.C snce we are w.jng to redcate federa ursccton on ~61, as other courts dd n Martnez v.!jcharcson, 472 F; 2d 1121, & n.2 (10 Cr. 1973) ; Eott 7 The ampn.].,..;_ compant dd not aege that the cb.m9 of Cauda Frost, James Frost, or Kr'..sten Frost satsfed ths requrement. 8 But cf. ][oqt:' an: Yerr.tont Wefare Rghts.Ass'n v. J:ett, No (2 Cr., Fe3. 10, 191."'), ~~:: "Jr.!773, v;h.:.rd &. paue of t~:; court remanded an ac=:o! brought by an nd.rdna1 we.fare recpent and a wefare rghts or;an.zatro for a determnaton of the proprety of a trn:;t fund apr road fo-: e=:tabshng the e::rst!nce of the jursdc tona amo:.:nt =~er B31. See Bass v. Rockefeer, 331 F. Supp. 945 (S.D.KY.), re= wth ::rt":-ncto3 to ;a~ate and dsmss, 464 F.2d 1300 (2 Cr. 1911) (fre pane cecnng to express any ju(1gment on the correctness of e d:str~t court s jur!sdctona1 hodng). Ths theory :as not been u:gec. be!o~e us and, snce we fnd jursdcton upon another bas:!, we need not e':press any opnon about t A-10

11 .. ' f f\. v. TVenberger, 371 F. Supp. 960, 967-GS (D. Hawa 1974); 1. and atter n Y. Tr eb erger, 377 '. Supp. 906, 914 (E.D. Pa. 1974). Granted that t may be t~oublfu whether Congress ntended 1361 to co\er stuatons of ts sort, see, e.g.,.1 ameson ' TY enberger, 379 J'. Supp. 28, 34 (E.D. Pa. 1974), the anguage: s suffcenty broad to do so, see Note, The J ursdctona1 Amount Requrement n Suts Chaengng- the Vadty of Federa Gon;rnmeut Acton, n Hart & Wechser, The Federa Courts and tbe. :F'edera System 1158, (2d ec ), at east n a case ke ths where the soe ssue s the type of hearng requred. Bengn C..t'v\Dv.,..-/ negect by the Supr en::.e Court of the jurscctona~ n such cases as Rchardson v. TVrght, 405 U.S. 208, 1 eh. dened, 405 U.S (1972), and Rchardson v. G1 fjn, supra, 409 U.S. 1069, must sgnfy at east some degree of acquescence n a federa court's proceedng to judgment n a matter so pecuary approp:ate for ts decson as whether the Federa Consttuto11 requres federa offcas admnsterng federae.;r::aton to grant a fu evdentary. hearng. ~ -< '!.,., < 1 ; : -..., '! V. jjj ootness and Cass Acton. Athough the dspute over the reducton of pantffs' survvors' be~e:fts c.oncededy remans ave, snce f s before the Appeas Comc, the Government urges that the controversy on1 the rght to a pre-reducton hearng s dead. ts argument runs as foows: The named pantffs!1.:-. c ::G\Y :Uac Uu; tn)e of tearng they so11ght and therefore nothng remans for the dstrct court to adjudcate wth respect to them. f the decson of t!w admnstratve aw judge shoud reman undsturbe':, they ought not to receve pre-decson 'reductons to whch they are not entted; f hs resut shoud be overturned, they w receve the amounts mpropery dedncted. \Vhat~ver njury may have A-. -:-- t

12 been suffered by an mproper ntermedate dcpr vaton, f such there were, s beyond the 1)ower of a court o remedy. A s ort nn:m-er to the Government's poston s that f pantffs' rocec1ura cam ncudes. 1c nght not onv to a fu hearng )~t to the admnstratve appea and judca r~,,- r~.-ded hy 42. '.. 405(g), pantffs, TCor~ rcct on the due process ssue, wou d be entted to a refund of the amounts deducted rght now, wthout awatng a decson by the Appeas Counc and a revewng court. HoweYer, "-e thn~ t11at the suggeston of mootncss shoud be rejected on broader grounds. n Godberg ' Key, 307 U.S. 254, 256 n.2 (1970), 9 the Court noted that "[d]nrng the course of ths. tgaton most, though not a, of the pantffs ether receyed a 'far b.errng'... or >rere restored to the ros wthout a hearn3'." Yet the Court dd not ntmate that the cases of these pantffs 11ad become moot. The stuaton was ev- denty thought to cor.1e wthn the prncpe whch protects aganst a cam of mootness those ssues "capabe of repetton, ye.lev-adng re\~e'w." Southern Pacfc Termna Co. v. CC, 219 U.S. 49S, 515 (1911). See Carro v. Commssoners of Prncess Anne, 393 U.S. 175, (1968); foore v. Ogve, 39:1: U.S. 814, 816 (1969). The So/thern Pacfc prncpe has been expanded n such recent. cases as Roe Y. n rade, 410 u.s. 113, 125 (1973), and Doe v. Boton, 410 U.S. 119, 187 (1973), where the pregnances of _ the pregnant pantffs must have ended ong before the cases reached the S:1preme Court, and n S ztper Tre Eng'r Co. V, McCor.-e, 416 u.s. 115, 122 (1974), especay as regards c1ec1ara tory (as opposed to njunctve) reef, d. at 121, w1ch was a tbat the Supreme Court suggested was proper n Super Tre and a that was granted here. As aganst ths, there s hardy the same J;:ehooc of the 1 \ - J,.., 9 Go!dberg was not a cass acton ~. -~. ~ ~-. A-12. \

13 ~ [ ' ~, - f f appearance on the scene of more egtmate chdren of f.r. Frost as tccre was of the nterstate Commerce Commsson's drectng- another short-term order aganst the Soathem Pacfc Termna Company, of New York's agan seekng to r cmn,-e the Godbe rg pantffs from the wefare ros, or of the R oe and Doe femae pantffs becomng pregnant agan. See Sosna v. owa, - - U.S. --, - - (1915), -±3 u.s.l.\y. 4125, (U.S., Jan. 14, 1975). Whether or not the case woud be moot f Mrs. Frost \ had sued ony on behaf of hersef and her chdren, we do ) - not thnk t has become so here. 10 n Sosna v. owa, supra,. the Court refused to dsmss as moot a cass acton chaengng owa's one-year resdence requrement for nsttutng a d~orce sut because the year had ong snce expred for the pantff and she had obtaned a dvorce esewhere. Atho-:1gh consderng that the case woud have become moot f 1frs. Sosna had snec soey on her own behaf, -- U.S. at --, 43 U.S.L.W. at 4127, the Court found that "the controversy... remans very much ave for the cass of persons she has been certfed to r epresent," at the appeate stage when her own cam was no onger so. - - U.S. at--, 43 U.S.L.W. at The Go\Ternment argues.that the nstant case dffers sgnfcanty. n that, athough pantff pac moved for desgnaton of the sut as a cass acton before the hearng before the SSA admnstrat~e aw judge was hed, the dstrct court, wth the agreement of the partes, had deferred rung on the moton unt he rendered hs opnon on the merts by 10 The Secretary's reance on DeF1ms v. Odeqaard, 416 U.S. 312 (1974), s thus mspaced, snce thare pantff sought ony njunctve reef for hmsef and : rud not cast hs sut as a cass acton." d. at 317. That beng the case, snce pantff woud never agan hmsef face the aw schoo admh.. <:on process, whch he chaenged, the queston '~>as moot, because "the queston s certany not 'capabe of repetton' so far as he [the p1a.:::tffj s concerned." d. at ' :._.. - ""~ ~ A-13...

14 whch tme the henrn6 tnd been hed anc t1w case decded. Our attcnto s c:1jeu to the statement n Sosna: There ::nust 110t on? be a nmncc pantff who 1as such a ease or controversy at the tme tbe compant s fed, anc nt the tme the cass acton s cert fed by tbe Dstrct Court pursuant to Rue 23, 11 bnt there must be a ve controversy at the tme ths Court renews the casey SEC v. v cdca Commttee for Humo;~ Rods, supm. The controversy may exst, ho11e;er, between a named defendant and a member of the cass represented by the named pantff, even though the cam of the named pantff has become moot. 11 Tbere oay be ca ~e s n whch the controversy nvovng the named pantfs.3 such that t becomea moot as to them before the Dstrct Court can r c::tsonaby b!' expected to rue on a certfcaton moton. n such. nstances, -;-;nether the certfcaton can be sad to "reate back" to the fng of the compant may depend upon the crcumstances of the partcuar c:~se and especay the reaty of the cam that otherwse the ssue wo!d e.-ade revew. 12 Whe:1 ths Court 1as entertaned doubt about the contnung nature of a case or contro crs:;, t has remaudec the case to the ower court for conscer:!tcc of.the possbty of mootness. n(1ana Empoyment Securty Dt:a!o~ \. B~trney, 409 U.S. 540 (1973). \. ~- U.S. at --, 4:3 U.S."L.\V. at But the apparent force of ~what was sad there n text s argey _chaned b_y footnote 11, wbc sepms to- re?..d drecty on th~ cmse. ' -. "Whe fooh~o te 11, whch was gven speedy effect n Gersten v. Pug!!, -- U.S. --, -- n.11 "<1975): 4- ~ TT.S. L '"(V ~o.-.~.~... ~ 1 (.,..U. S.,.., ' ) L. -vv, k ±~0~ n :1 eo., ::>, spea s 1n 11 n Gentr! t was not cear from the record whether any of the named rcsponde!:!ts, ~ bo chaengec1 Forda procedure whch permtted the ext ended p:e~:- :- 1 detenton of arrested persons, wthout a premnary hearng, s.,1~1y on the bass of the prosecutor's decson to fe an nformaton, were st n custo(y when the dstrct conrt certfed the cass. See Cron '1". Caforna Dep't of Human Reso11rces, -- U.S. --, 43 U.S.L.W. 3~51 (U.S. Feb. 14, 1975), yncatng and remandng 490 F.2d 58 (9. Cr. 1973). 2932,.. A-14

15 . '.. ' ' t ;.. : '! : \ ; ~.. ' f ~. f '' ' '... ' \ terms of "may'~, t.s harc ro thnk of a case more ceary quafyng fc:!cu;,;on tbm t.s one. Mrs. Frost hac1 rased an ssee 1\!c:b wa::; n to her and the cass she camed to represen:. t s ready apparent that the judge was prepared to grant cass acton status a aong.. Snce grantng t1t: ca~s acto1 request,, ouc1 have done nothng to assst ~rs. Frost n her mmedate and serous :fnanca pght, the judge as the frst order of busness compassonatey compeed the Secretary to grant wthn 30 days the po~ t-redu cto u hearng to whch she was admttedy entted. To hod that the competon of that bearng and the renr1ton of judgment by the admnstrat~ve aw judge rendered the case moot for the cass woud mean that the mportant queston here at ssue coud never be decded uness a pantff or the SSA engaged n foot-draggng v;th. respect to the post-reducton hearng suffcenty- ong to enabe a dstrct judge to make a cass acton determnaton.. Such a prncpe coud have tte to commend ts?f. The reason for generay requrng that the conh o;ersy be ''ve" as to the named pantff at the tme of c1ass aceon desgnaton s. that other '\\se the court '\\Ouc have no assurance that the n~mec pantff w 'gorousy represent the cass. Ths has tte appcat.on when, as here, the court has deferred cass acton determnato~, wth the ag:-eement of a partes, pendng a n11ng on the mert;;;. The Go7crnm'3nt has ~ po11tec to no resject n whch ths case woud have proceeded dfferenty f the ro11rt hor ccre.f.ec ths as a c8s'3 acton on :!.\ o 1emoer 16, 1973, rather than n ts decson of May 3, f as :Mr. Justce \Vbte sad wth some justfcaton n bs dssent n Sosna, --U.S. at -. -, 43 U.S.L.W. at (footnote omtted), "The ony specfc, dentfabe ndvdua wth an evdent contnung nterest n presentng an attack upon the resdency requrement s appeant's counse" and f the Court had 2933 J! -~--,,, w A-15

16 O\'crcome t!~ by a "ega fcton'' consstng of "the rencaton of an abstract entty, 'the cass', consttuted of faceess, nm1::1:1 t: c nc1':c.n:ts v. ho arc deemed to Htvo a ve case or conh o,-er::;y \\ th ppeecs," t scarcey can be consequc nta. a ca::e ke ts whether the named pantjf ktc obtaned a Learug n the perod \Yhkb, wth the agreement of the partes, tho court took to m.ako ts cass acton determnaton. t was, of course, essenta tbat tte dstrct court assure tsef "that the named representatve w adequatey protect the nterests of the cass/' Sosna v. owa, S1tpra, --U.S. at--, 43 U.S.L.\V. at See ~'.R.Cv.P: 23(a). But the judge had ampe ground for decdng that pantffs or, more reastcay, ther counse, woud do ths, ndeed had cone ths, for persons smary stuated even after Mrs. Frost hn.c1 re.ccvcd a hearng before an adrnnstrat'e aw judge. To be surcj the named pantffs coud not represent. the cass of egtmate chdren whose cams woud,,-ork a dmnuton of amounts prevousy aowed, a status they had not songht. 12 But despte some argument that they coud, 375 F. Snpp. at 1317, the dstrct judge came to rest on the sound proposton that "[p]antffs ony purport to represent those recpents of. s\uvvor's 12 The COJnp1:J.nt ''as framed on behaf of a persons entted.uow or n the future to.rere>e benefts under the Act "whose bccfts have been or m:>.y be rrdu~ea wtto(t t a pror hearng." Certany such a cass de~cr;>ton v;on not on ts face ncude newy Pntted rgtmato chdren or egtmate cbcren whuse enttements have been ncreased. Whe some such ch<r!'n mght n the future be faced wth the prospect of rernctn' '1 h<;>nefts, n S'Ch n~t~n~cs they r.onr he propp.r members of the ca ~ s..n any c>ent, a Repy Affdast n Support of Cass Acton :Moton 2-nJ. Renewa of Request for Temporary Reef fec by co~mse for pant!:?s woud ap('nr to acmo-wedge that, where the statutory ma..~m :tm was a1rcac1y beng pac1 (and presumaby wtere the statutory ma.."um;m '~a3 not beng pad but where the ac1dton of the egtmate ch!c or ch.ren v;ouj pmh the tota cams o~ er the statutory m:-~xmum), the nterest of new c1am:mts anc o1c cbmants woud be at v er~e; the _.\.ff.cant takes hsue wth the queston of how mn.ny sur.h case3 T"oud occur. 2D34, 1. A-16

17 ..... ' \_, benefts who ba\e b.ac a do\1.-;,v:;:nc adjustment n benefts wthout beng affcrced a pr r -r.:-c1t:cton oyccnary hg.:'- ng." Jd. 13 And,_,-e do not re,;<1n1 the:- sta.ten.1cnt wth respect to notce n Ese;! 1. C:use, 391.~d 5:JG, 56!h (2 C.r. 19GS ), as appy.n6 to cass actons EJce r F.R.Cv.P. 23(b) (2), see Sosa V. ou a, supra,--r.s. at , 3B ]\[oore, "ecera Practce T (197±). V. The Jerts. n recent years the Supreme Court has had ncreasng occason to con.sder to v:hat e::;:tent cue process requn~s a. fn tra-type hearng before admnstratve acton s taken when one s pronded p:om~ty thereafter. The eadng case n fayor of such a. requrement n the wefare.fcc s, of course, Godberg v. Kefy, supra, 397 U.S Recognzng "that some go,-ernm.:::nta benefts may be admnstrat,ey termnated wthoat affordng the recpent a pre-term:naton encentary bearng", 397' U.S. at 2G3 (footnote omt.tec1), the Court tho:r;ht n dfferent rue was requred for recpents of ad tuj.der t1e federay asssted. AFDC program, 42 U.S.C. ~~CO, et seq., and New York's Home Reef program, X.Y. Soc. Wef. L. 343, et.seq. The cruca factor \\as tbat sucb ad was g-ven to persons on the \ery ma-rgn Of subsstence ; n such nstances "'tcn: mnahon of ad pendng resouton of a _controversy OYCL ~!e,bty may deprh-e an e;gue-rccpent of the verymeans by whch to \e wb.~e he \\ats", 397 U.S. at 264.(emphass n or0nn ). 14 ' he oy opposng n 're:::b:: wore 13 Snce the jur1ge granted cass ~cton sbtus after proper procedures and wth r.ecessary cefut<>ne.s:,»e see no force n the Government's contenton b:uer on Bt;ard of Sch"Y.J Commssoners v. Jacobs,-- U.S. --, -- (1975), 43 U.S.L_)';'_ 4.23:3 (U.S. Feb. 18, 1975), decded after the argument 1-efore us. 14 :Mr. Justce B:e:1::2!1 con~'ued, d. (footnote omtted) : Snce be hcks n.!ependent re:;;:nuce:!, h.'!.stuaton becomes mmt>d _ r ~ A-17...

18 those of the. Go,ernment n preservng fsca anc admn::; trntve resources, and the majorty thought that "mportant goyernmcuta nterests are promoted by affordng recpents a pre-termnaton e vdentary hearng." c. n ts fna V'eghng of the baance, the Court sad, 397 u.s. at 2G6:. Thus, the nterest of.the egbe recpent n unnter rupted r ecept of pubc assstance, conr>ec wth the State's nterest that hs payments not be erroneousy termnated, ceary outweghs the State's competng concern to prevent any ncrease n ts fsca and acmn ~ strat.-e burdens. r As the Chef Justce ponted out, dssentng n a companon case, Trh eee-r v. JJJ ontgomery, 397 U.S. 280, (1970),_2.~ the Godberg opnon eft unanswered whether due process requred a fu-scae hearng n ad vanee of acrnnstrat\e acton n such matters as."wefare reductons or dena of ncreases as opposed to termnatons, or decsons concernng nta appcatons or requests for speca assstance." The Court has not yet answered these questons, except perhaps for a passng observaton n Rchardson v. TTTrght, 405 U.S. 208, 209, 1 eh. dened, 405 U.S (1972)/ 6 prmary because the fed has Jar.gcy been occuped by admnstratve reguaton. The Court has, ho~\ ever, gven extensve consc1cratou to the probem n other t?ontexts. The most ree\ ant s A1 nett v. K euner?y, 416- U.S.-134 (1974), sush~:cg -the atey des::erate. Hs!C e"!. t~.' on~ c n tra~e t.pvu fmu.ng t c n (!::.<:3 for day s:.rb s s ~eace, n turn, adyersey affects hs abty to seek redre ~ s from the wefare bmcaucracy. 15 The d s s e ::~t apped aso to Goc11Jerg, 397 U.S. at Mr. Ju s t ~ t: \\hte s opnon n Arne tt v. Kennec.1f, nfra, 416 U.S. at 202, treats these remarks as more authortatve than we shoud have suppo:<ed t2?l! to be. E that s correct, the Wrght decson woud consttute strong support for tho Government here A- 18..

19 :. '.. vadty of procedure-:: " heren a federa empoyee coud be d s m.s~ec for c:au~ c. 5.S.C. ~~ 7.JO(a), on the b:<ss of of notce of the acton sohg-ht anl any cmrgc~ prefrnec1 aganst hm, a copy of the charge, a 'C<1S011ahc tme for :fng a w tten ::ms'. :er wth nffda, ts, and a wrtten dec. so, 3 U.S.C. ~ 1501 (h)-a ptocccure cosey resemb1g SSA's )'e-rcducton procedure here at ssuc- wth a fu evdentary heareg t!ereaftery The empoyee receved no pay pendng the :.earng, and deays amounted to more than three months.n O\er 50% of the cases where the dsmssa >\ as appeaed, ±16 u.s. at 157 (puraty opnon of Mr. Justce Remqust). \Ye fnd parbcuar reevance n Mr. Justce Powe~s obser\aton 18 that the deprvaton of ncome pror to :fna resouton 1vas "consderaby ess severe than that n\oh ed n Godberg" snce ''a pubc empoyee- may "'e ha\e ndependent resources to overcome any temporary harcshp'' and, f unabe to secure a job n pr,ate empoyment, "': he egbe for wefare benefts", 416 U.S. at 169, and n ~r. Justce whte's dscusson, 416 U.S. at and The Court's decsons can be 17 By reguaton, the ~ e statutory protectons wero enarged. See 416 U.S. at :rr. Justce Po,e spoke aso for :Mr. Justce Backmun. 19 Speakng of' Godberg, ::r. Justce Whte snd, 416 U.S. at :, The decson to cut off A.PDC wefa ro p;tyments eaves the recpent ) ~ teray mthout any means to sur"ve or support a famy. Whe ~ ths eve of depr>aton ma)' no~ bq)nsstt>u upptt ns a!c ccssrrry- - ~,; conjton or req:.t~g so:ne knd of prctermnnton hearng, t may..,-.,jj b.- de.:'. >e n reqarng the Government to pro\ de specfc procedure3 at tje p: et;,r!t.aton sbge. The gre:th;r th'j!~1 " 1 of depr>aton whch may fow from a decson, the ess one may toerate the rsk of a mstaken decson, cf. Morrssey v. Brewer, supm, and thus the C.:mrt n Godberg, w1e mantanng that the pre termnaton :earng was n the nature of a probabe-cause dcterm;.aton, was e: s wng to aow a margn of error as to probabe co.~se. Rues of proce,ure are often s1mpel1 by the rsk of makng an erroneous c1~termnaton. See n re Wnshp, 397 U.S 358, 368 (1970) (Haran, J., concurrng). ndeed, a that was speccny 2937 ~! r , ~ A-19...

20 fary- smmnarzec as hodng that the requred ct:~gree of proc:cdnra s~fegtw.rds vares drecty wth the mportance of the prvate nterest ojfcctcd and tw need for and uscfu11ess of tb.~ fjart.cul:tr safeg nrd 11 t1c g vcr crcumstances anc1.m-er:::ey wth the burden and nuy other ad Yerse conseqw~ nces of affordug t. Enn apart from tb.e nterests of: the new camants there woud be strong grounds for hodng ths case to be attracted by Arnett v. Kennedy rather than by Godberg v. Key. 1-\..n eement cruca to Godberg was that the benefts at s~ue -were awar~ct on the bass of need and represented the ast source of ncome avaabe to the fames. Tb.e benefts here at ssue are not based upon need; a mother recen-ng benefts on behaf of hersef and he"..r..s.k~ earn :!.1P to a statutory maxmnm w:th~ ~~~~~--~~~~~----~ out a reducton of her benefts, 42 U.S.a. 403 (f) ( 3), and ~ - n no event do her earnngs affect the benefts to the chdren. See 4:2 -u.s.a. -±OS(d). Furthermore,,-hat s here at stake s not a compete termnaton of benefts, as n Godberg, but a reducton--n the case of Mrs. Frost and her chdren from $-.1:/7.90 to $ per month. we do not mean to underestmate the gravty of such a re_ducton; not req,:red n Godberg was a compete record and a ~omprehens>e op::uon. 397 U.S. at 267. n thh case, the empoyee s not_ totay wthout prospect for some form of support. durng.j.he parod becw~;eu. the prete1 mnatcn and :f.::a hearng on appea, though t may not be equvaent earnngs or tenure to hs pror compettve sernce poston. Athough the ernp<1yee3 m!y :not La cut!tcc. to unempoyment compensaton, - see Chrstan Y. Xew York:, 414 U.S. 614 (197-1), snce he 1as been termnated for cause[,] he may get some form of empoyment n the prh ate sector, anc, f necessary, may' draw on the wefare system n te nterm. G>cn the hasc foor of need, whch the system pro\<e~, we shouc not ho!< that procedura due process s so ufe:ube a3 to requ.re the Court to hod that the procedura protectons, of :t \utten statement and ora presentaton to au mparta hearng e:s:a.n:-t!r proydec by reguaton, are nsuffcent A-20

21 ',. very key, as the dstrct court stated, 375 F. Snpp. at 1322, many famtcs do depend soey or prmary on SSA survvors' benefts. But, ns ndcated n Anwtt, su~jm, 416 U.S. at 169 (}r. Justce Po w e), (}Yr. Justce \Vhte), n ca.ses where a reducton n such benefts woud pace a famy beow the subsstence eve, other forms of government assstance woud become avaabe, ho wever unattract,-e resort to them may be. The "\Yeghts n favor of departng from the ordnary prncpe t11at somethng ess than a fu-scae evdentary hearng suffces befor-e admnstratve acton, when a fu hearng s provded pro~pty thereafter, are thus substantay ess t1wn n Godberg. Even more mportant, the weghts on the opposte sde of the scae are sgnfcanty greater thnn n_ Godbe.r.g and, for that matter, jn oter types of cases nvovng the :0ta or parta oss of soca benefts "\vhch have come before the courts. n a such cases the opposng weghts have been soey the Govermnent's nterests n protectng ts fsca and admnstrat,-e resources- the costs of contnued payment of nvad cams wth no kehood of recovery,. and te e::s:pense of conductng fu evdentary hearngs pror to acton (more accuratey, the ncrementa costs of sne.. henrngs..._ over what "\\roud be ncurred.. n any post-termnaton bearngs). \Vhe those nterests are present ere, there are mrort(nt prvat~ nterests _as we. 'J.1he ur..c1er5tancp.be ces1~ of the egtmate -c111: dten of Mr~ -Frost to avod a reducton of benefts unt there has been a determnat-:>n of the genuueues::; of tw egtmate camants after a fuu evdentary hearng (and, for that matter, admnstratve appea and judca revew) s counterbaancec. by the equay understandabe desres of the egtmate chdren to begn recevng payments to whch they cam to be entted wthout watng so ong. \\be, m ansv er to our nqury, Gov A-21

22 ernment counse has advsed tlat SSA now makes payments n excess of the famy maxmum durng the reatvey stort perod aowed for a protest and ts resouton, they aso state that the course mght -..ve be dfferent f the o-.. erpaymcnts had to contnue for a onger perod/ 0 whch can wrcy be sad to be consttutonay requred, snce, n contrast to Godberg, there woud be not merey a possbty but a certanty that t woud be payng to someone mones that were not egay due. A fu-scae e\ dcntary bearng wth respect to paternty s not key to he of the smpe sort characterstc of Godb e-rg and most of the cases that have foowed t, where the evdence s ready accessbe to the camant and the wefare admnstr~tor and a pre-termnaton hear ~---_...,.n6g.can ~ be prompty 1ed and- cmt be concuded usuay wthn a matter of hours. The egtmate and egtmate =----=- chdren may not enn be vng n the same vcnty, as js the case here wth the four chdren of Chares Frost, Jr.; yet a fu evdentary hearng woud requre that representatns of both sets of cjjdren be afforded an opporttnty to he pre<::cnt, as kew.se occurred here. 1\oreover, a- paternty hc2.rng may demand an nqury nto the habts of a father ong before marrage o~ ~mg after hs departure from the matrmona househod. _ whe ths comderr..ton cuts both ways, the deeper.c.u_t ::; n favor of ao-..nng the- SSA-to act premnary-on tha..has:s. of-somst-:-ng-jess than a fu-scae hearng, par-. tcuary ;:;-..:~.:e the fact t11at the SSA has no fnanca 20 t s tr'e that unc~er ts present procecures the SSA may st be nvoved n exceedng the ru::u.:mnm.n a case where a post-re!uct.on fu 1e11rng shorrs that the egtmate chdren camng entt~ment were not n fact snch and the reductons are requred to be restored. But at ::ast the SS_\ m.n ha>e cone a t can to a>od t1ts, and the amount s nece~sary ess than rrwt wo11d resut from payng both sets of chdren tbrou~hout the perod wthout regard to the ma:"tmum. See aso Cams :Manua T310(c), T ',..!! J A-22

23 ,. t ' f " t t ~take and s tole:.- c1sute:!. -tc>t1 rs bet-ween the h :o sets of cbrnants sho< U be1p to u:-:11 r., a correct pre-reducton dc c:=:on. Cf. C'r tj'c -;. Ca!fur!(' Dcj/t of Huma-n Resources Der., -±90 F.2c15SJ,.S S-4: (9 Cr. 1973),?- acatcd and 1"C11Wded for tosdcrato-oj ;noofzess, --U.S.--, 43 U.S.L.\V (U.S. Feb. 1±, 1975). \\'" c thus hod th:tt the SS.:.'s procedures for a premnary pre-recncto c:e-tcrr.1uaton m1 papers, to be foo wed by a fu post-recncton J1earng f 1 equested, conform to the requrements of due process. n so rung we make two as5ump1cns: One s that persons whose benefts are --to be reauced sbodd ha\e fu access to any SSA :fes reevant to ts re-reducton premnary consderaton f they so request. ':!e o.ner 1s n e u hearng shoud ; be schel1uec promp""y and decded \\ tb. a feasbe speed. The jr!ctgment s rewrsed -..nth nstructons to dsmss the compant. ~ ~ R '"" ~.~ ~f ;t -...J -~ ~ ' ---..= ~ H~ '! -~ ~ 29±1. "' ~-~ A-23