Benson v. Schweiker, 80-7040
| Decision Date | 17 July 1981 |
| Docket Number | No. 80-7040,80-7040 |
| Citation | 652 F.2d 406 |
| Parties | Juanita BENSON, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
William W. Campbell, Legal Services Corp. of Ala., Inc., Florence, for plaintiff-appellant.
Herbert J. Lewis, III, Asst. U. S. Atty., Birmingham, Ala., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Order for Modification of Opinion
Before TUTTLE, TJOFLAT and KRAVITCH, Circuit Judges.
We have carefully considered the petition for rehearing in the companion case, Clark v. Harris, 638 F.2d 1347. Upon further analysis of the notices given in the two cases, we conclude that there is no substantial difference between them. We, therefore, sua sponte withdraw the original opinion in this case, 638 F.2d 1355, and substitute the following in its place:
This appeal, like that of Doss v. Harris, 638 F.2d 1354 (5 Cir.), is a companion to Clark v. Harris, 638 F.2d 1347 (5 Cir.), argued before us at the same time.
Mrs. Benson's case suffers from the same defects as the other two, in that the notice given to her with respect to the right to have representation by counsel is not substantially different from that contained in the other two cases.
The notice here, contained on the face of the notice of hearing was as follows:
Representation
While it is not required you may be represented at the hearing by an attorney or other qualified person of your choice. If you wish to be represented by an attorney and cannot afford it, your local social security office will provide a list of offices where you may be able to obtain such representation. (Emphasis in original.)
Any fee which your representative wishes to charge is subject to approval by the Bureau of Hearings and Appeals, and your representative must furnish you with a copy of the fee petition. When you receive your copy of the fee petition, you will have 20 days to comment, if you wish, regarding the requested fee.
If you are found entitled to past-due Disability Insurance Benefits and your representative is an attorney, 25 percent of such past-due benefits will be withheld by the Social Security Administration pending approval of a fee for your attorney. If the approved fee is less than the 25 percent withheld, the amount of the fee will be paid to your attorney from the amount withheld and the difference will be sent to you. If the approved fee is more than 25 percent of your past-due benefits, the 25 percent will be paid to your attorney and the difference is a matter to be settled between you and your attorney. If you are found not entitled to past-due Disability Insurance Benefits, or if your representative is not an attorney, none of those benefits will be withheld by the Social Security Administration. Payment of any fee for representation is, therefore, a matter to be settled between you and your representative, after the amount of the fee has been approved by the Bureau of Hearings and Appeals.
If you are found entitled to any Supplemental Security Income Benefits, none of those benefits will be withheld by the Social Security Administration. Payment of any fee for representation is, therefore, a matter to be settled between you and your representative, after the amount of the fee has been approved by the Bureau of Hearings and Appeals. (Emphasis in original.)
We hold, as we did in Clark and Doss, that this was inadequate notice to the claimant both for the possibility of her having free counsel and of the limitations on the fee that counsel could charge as a part of the recovery if any was made.
Moreover, the claimant contends that she did not actually waive the right to counsel at the time of the hearing, because of the ambiguous nature of the statement made to her by the administrative law judge. That statement and her answer follow:
In your notice of hearing you were advised of your right to an attorney. It is not required. Since you are appearing alone I am assuming you do not wish to have a representative. Therefore I will ask the questions considered necessary in order to obtain a full record of the facts in this case. Is that agreeable with you?
MRS. BENSON: Yes, sir.
The claimant contends that by answering "Yes, sir" it may well be that Mrs. Benson was agreeing to the latter part of the ALJ's statement "therefore I will ask...
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Andrews v. Astrue
...this limitation. 12. The Fifth Circuit has recognized that prehearing written notice may not always be adequate. See Benson v. Schweiker, 652 F.2d 406, 408 (5th Cir.1981). However, the Benson notice was held inadequate because it did not inform the claimant of “the possibility of her having......
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