Bartley v. Finch, 1264.

• Decision Date: 27 April 1970
• Docket Number: No. 1264.,1264.
• Parties: Russell BARTLEY et al., Plaintiffs, v. Robert H. FINCH, Secretary of Health, Education and Welfare, and the United States of America, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

311 F. Supp. 876

Russell BARTLEY et al., Plaintiffs, v. Robert H. FINCH, Secretary of Health, Education and Welfare, and the United States of America, Defendants.

No. 1264.

United States District Court, E. D. Kentucky, Pikeville Division.

April 27, 1970.

Ronald W. May, Pikeville, Ky., for plaintiffs.

Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., for defendants.

Before COMBS, Circuit Judge, and MOYNAHAN and SWINFORD, District Judges.

MEMORANDUM

SWINFORD, District Judge.

The plaintiffs bring this action under the provisions of Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). It is brought as a class action under the provisions of Rule 23(a), (b), Rules of Civil Procedure. The named defendants are Robert H. Finch, Secretary of Health, Education and Welfare, and the United States of America. The plaintiffs ask that a three-judge court be impaneled to pass on the question of the constitutionality of Section 224 of the Social Security Act (42 U.S.C. § 424a) and that the defendants be permanently enjoined from making off-sets required by that Section. They further demand that the court mandatorily direct the defendants to reimburse the plaintiffs and all members of the class for any amounts previously off-set and withheld from each of them as individuals.

The defendants raise the question that the complaint does not allege grounds on which a statutory three-judge court could be constituted. In the prayer of the complaint, a three-judge court is demanded on the authority of 28 U.S.C. § 2282. The question was passed upon by the presiding judge to whom the case was first presented and on his decision a three-judge court was duly selected and properly appointed by the Chief Judge of the Sixth Circuit. We conclude that this is a question under the statute for a three-judge court and proceed to determine the issues presented by the record.

The first question raised is the right to make the United States of America a party defendant to an action of this kind since it seeks a permanent injunction restraining the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution of the United States. It is our opinion that a three-judge court may proceed to pass upon all questions raised by the record including the question of jurisdiction. We are of the opinion that the United States is not a proper party to this action. Under its sovereignty, it is immune from any action except those to which it expressly consents. No such statutory authority is alleged by the plaintiffs. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; Honda v. Clark, 386 U.S. 484, 87 S.Ct. 1188, 18 L.Ed.2d 244.

The court is further of the opinion that this is not a proper action against the defendant Robert H. Finch, Secretary of Health, Education and Welfare. The manner and method of granting individuals relief under the Social Security Act are expressly provided by the terms of the Act. It is an administrative procedure and can only be brought into the federal district court by its expressly legislative procedural provisions. It does not appear that these steps have been taken by the plaintiffs or any of them.

Title 2 of the Social Security Act establishes the only method of bringing any decision with respect to the rights of the claimant to benefit payments into a court proceeding. Section 205(g) of the Act, 42 U.S.C. § 405(g) provides that when the administrative procedure before the Secretary of the Department of Health, Education and Welfare has been fully completed and the relief sought has been finally denied, the claimant within 60 days after the mailing to him of notice of such decision or in such further time as the Secretary may allow shall bring an action in the District Court of the United States for the judicial district in which the plaintiff resides. The court may then pass upon the correctness of the decision of the Secretary applying well defined rules of law and determine whether or not the claimant is entitled to a judgment against the Department notwithstanding the Department's denial of the claim administratively. An appeal may be taken by either the claimant or the Secretary from this ruling and judgment of the district court to the appellate court. Since there is no other prescribed statutory procedure, all questions including the one now before this court which seeks to test the constitutionality of a section of the Social Security law can be made by following the provisions of Section 223 of the Act, 42 U.S.C. § 423, and a final adjudication as to its validity can be ultimately determined. Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718. The only right of action which the plaintiffs have is that derived from the statute. Consequently, the express provisions of the statute must be strictly observed. These procedural rights were available to all the plaintiffs and all members of the class which they allege they represent. It must be borne in mind that whatever remedies are available must be timely exhausted administratively before this court can have jurisdiction.

Notwithstanding our conclusion that the court is without jurisdiction to entertain this action, we will proceed to discuss and express our judgment on the ultimate issue which the plaintiffs seek to have determined; that is, the constitutionality of Section 224 of the Social Security Act. This Section was added to the law as a part of the Social Security Amendments of 1965...