Berger v. Heckler, 924
| Decision Date | 26 August 1985 |
| Docket Number | D,No. 924,924 |
| Citation | 771 F.2d 1556 |
| Parties | Manny BERGER, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellee, v. Margaret HECKLER, Secretary of the Department of Health and Human Services of the United States, Defendant-Appellant. ocket 84-6360. |
| Court | U.S. Court of Appeals — Second Circuit |
John M. Rogers, Dept. of Justice, Appellate Staff, Civ. Div., Washington, D.C., Richard K. Willard, Acting Asst. Atty. Gen., Robert S. Greenspan, Dept. of Justice, Appellate Staff, Civ. Div., Washington, D.C., Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for defendant-appellant.
Arthur J. Fried, Legal Aid Soc., Administrative Law Unit, New York City, for plaintiff-appellee.
Before KAUFMAN and CARDAMONE, Circuit Judges, and TENNEY, Senior District Judge. *
Appellant Margaret Heckler, the Secretary ("Secretary") of Health and Human Services ("HHS"), 1 challenges several orders implementing a final judgment entered by consent ("consent decree" or "decree") regarding the eligibility of certain aliens for Supplemental Security Income ("SSI") pursuant to 42 U.S.C. Sec. 1382c(a)(1)(B)(ii) (1982) ("Section (B)(ii)"), which was enacted in 1972 as part of Title XVI of the Social Security Act ("Act"). In pertinent part, that provision ("the 'color of law' provision") confers SSI eligibility on aliens who are "permanently residing in the United States under color of law." Id.
At issue are orders of the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, which (1) granted in part plaintiffs' motion seeking to have the Secretary held in contempt and to have the decree otherwise enforced, (2) denied the Secretary's motion pursuant to Fed.R.Civ.P. ("Rule") 60(b)(5), in which she requested relief from the terms of the decree, (3) provided for an amendment ("Amendment") of the decree, and (4) denied the Secretary's motion pursuant to Rule 59(e), in which she challenged the Amendment. 2
In substance, the Secretary argues on this appeal that the Amendment is improper because it exceeds the scope of the underlying statute, and does not comport with the intent of the parties. The Secretary also argues that the district court exceeded its authority in ordering her to promulgate regulations to implement the consent decree. In addition, the Secretary contends that the court lacked jurisdiction to enforce the decree because the case is moot with respect to the two beneficiaries named in the decree, and, finally, that the court lacked jurisdiction to enforce the decree with respect to nonparties. The appellees--plaintiff Manny Berger ("Berger") and persons who intervened to enforce the decree--maintain that the district court's actions were proper, and that the orders should be affirmed in their entirety.
We agree with the appellees that the Secretary's arguments do not warrant reversal of the lower court's orders. Indeed, we find that the court's actions were, almost without exception, entirely justified in the face of the appellant's demonstrated noncompliance with the terms of the underlying decree. In connection, however, with
the Secretary's challenge to the district court's requirement that she promulgate regulations, we find that the Amendment should be modified to exclude the requirement that language specified by the court be contained in the regulations promulgated. As so modified, the Amendment, and the other orders of the district court are affirmed.
Berger instituted this action in 1976 to challenge the termination of his SSI benefits. He had come to the United States from Russia in 1948, on a temporary visa. He overstayed his visa, and in 1967 he voluntarily surrendered to the Immigration and Naturalization Service ("INS"). Although Berger was subsequently ordered deported, the travel documents required for his deportation to the Soviet Union could not be obtained by the agency. In 1975, therefore, the INS placed Berger under an "order of supervision" pursuant to section 242(d) of the Immigration and Naturalization Act ("INAct"). 8 U.S.C. Sec. 1252(d) (1982). In addition, HHS terminated Berger's SSI benefits. HHS asserted that, because of his alienage status, Berger did not meet the eligibility requirements for the SSI program as set out in section 1382c(a)(1)(B).
The SSI program is designed "to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level." 20 C.F.R. Sec. 416.110 (1984). The section of the Act at issue provides that in order to receive SSI benefits an individual must be either
(i) a citizen or (ii) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 1153(a)(7) or section 1182(d)(5) of Title 8).
42 U.S.C. Sec. 1382c(a)(1)(B)(i), (ii) (emphasis added).
Plaintiff's amended complaint, filed in 1977, was in the nature of a class action. It raised claims on behalf of Berger and the class composed of those aliens permanently residing in the United States under color of law who have been denied SSI benefits solely because the Secretary has determined that they are not in this country under color of law. 3
The complaint asserted, inter alia, (1) that Section (B)(ii) "requires that SSI benefits be granted to all otherwise eligible aliens permanently residing in the United States under color of law, and not just to those who are in this country as a result of the application of 8 U.S.C. Secs. 1153(a)(7) or 1182(d)(5)," and (2) that the Secretary had erred in denying SSI benefits to Berger and the plaintiff class.
Later in 1977, Emma Mena ("Mena"), who is now deceased, moved to intervene in this action. Mena was diagnosed in 1963 as having cancer. She first received SSI benefits in 1975. In 1976, she was informed that her SSI benefits would be discontinued because her alienage status prevented her from meeting the eligibility requirements for the program. She then notified the agency that an immediate relative immigrant visa petition had been filed on her behalf, and pointed out that INS Operations Instruction 4 ("INSOI") 242.1(a)(24) prohibited her deportation during the pendency of the petition. When her benefits were not reinstated, she moved to intervene in the instant case.
In June 1978, the parties and the court signed a five-page consent decree stipulating to the following matters. First, plaintiff Berger, "an alien residing in the United States under an order of supervision issued pursuant to 8 U.S.C. Sec. 1252(d), is an alien Aliens who are permanently residing in the United States under color of law and who may be eligible for [SSI] benefits include, but are not limited to: (1) aliens admitted to the United States pursuant to 8 U.S.C. Sec. 1153(a)(7); (2) aliens paroled into the United States pursuant to 8 U.S.C. Sec. 1182(d)(5); and (3) aliens residing in the United States pursuant to an order of supervision, indefinite stay of deportation or indefinite voluntary departure. Any other alien residing in the United States with the knowledge and permission of the [INS] and whose departure from the United States the [INS] does not contemplate enforcing is also permanently residing in the United States under color of law and may be eligible for [SSI] benefits.
permanently residing in the United States under color of law pursuant to [Section (B)(ii) ]." Second, proposed intervenor Mena, "an alien who is the beneficiary of an immediate relative immigrant visa petition and thus has been afforded indefinite voluntary departure by the [INS] pursuant to [INSOI] 242.10(a)(b)(i), is an alien permanently residing in the United States under color of law pursuant to [Section (B)(ii) ] since at least December 1, 1976," the month in which Mena's SSI benefits ceased. Further, p 3 of the consent decree set forth the agreement of the parties regarding the interpretation accorded the "color of law" language of Section (B)(ii). Paragraph 3 provided in full that
(Emphasis added). Finally, p 5 of the consent decree provided that the Secretary would "take all steps necessary to ensure that this order is carried out by the employees of the Social Security Administration...." No appeal was taken from this decree.
Set forth below is a discussion of the motions made below and the district court's disposition of those motions.
In July 1982, Berger and several intervenors ("plaintiffs") moved for an order adjudging the Secretary in contempt for failure to comply with the decree. At issue on that motion was what action the Secretary was required to take under p 5 of the decree to ensure that the decree would be carried out by the agency's employees.
1. Disposition of the Plaintiff's Arguments. Plaintiffs asserted that the Secretary should be ordered to revise the agency's regulations and internal operating instructions to reflect the terms of p 3, which, as discussed above, interpreted the scope of the "color of law" language of Section (B)(ii). The court found that the Secretary had not adequately publicized the terms of p 3 of the consent decree, and ordered that the Secretary "take steps to effectuate the terms of the final judgment by promulgating amendments to the Secretary's regulations and operations manuals and agency guidelines stating the Secretary's position [as set forth in p 3]."
Plaintiffs also sought an order directing the Secretary to specify in the applicable regulations the twenty-two categories of aliens which plaintiff alleged were clearly residing in the United States with the knowledge and permission of the INS and whose departure from the...
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