Ganem v. Heckler

• Decision Date: 23 October 1984
• Docket Number: No. 83-1990,83-1990
• Citation: 746 F.2d 844
• Parties: , 7 Soc.Sec.Rep.Ser. 142, Unempl.Ins.Rep. CCH 15,565 Alam GANEM, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 844

746 F.2d 844

241 U.S.App.D.C. 111, 7 Soc.Sec.Rep.Ser. 142,

Unempl.Ins.Rep. CCH 15,565

Alam GANEM, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.

No. 83-1990.

United States Court of Appeals District of Columbia Circuit.

Argued May 8, 1984.

Decided Oct. 23, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-02880).

Michael V. Kowalski, Washington, D.C., with whom Mark Hanley Lipton, San Jose, Cal., was on the brief, for appellant.

John S. Koppel, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph diGenova, U.S. Atty., and Michael F. Hertz, Washington, D.C., were on the brief, for appellee. R. Craig Lawrence and Deborah A. Robinson, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellee.

Before MIKVA, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This appeal presents the recurring question of whether and under what circumstances a writ of mandamus is available to enforce the provisions of the Social Security Act. We hold that the Act does not preclude the exercise of mandamus jurisdiction and that the actions of the Secretary of Health and Human Services challenged in this case constitute such a complete abnegation of the Secretary's statutory responsibilities that issuance of the writ is warranted.

I.

This case centers around the right of nonresident aliens residing in Iran to benefits accrued under the Social Security Act. Until recent years, all nonresident aliens were precluded from receiving disability or survivor benefits under the Act. See 42 U.S.C. Sec. 402(t)(1). Amendments to the Act passed in 1969 created an exception to this general rule for certain classes of nonresident beneficiaries: if a wage earner has resided in the United States for more than ten years or has earned more than forty quarters of coverage, for example, the wage earner's nonresident beneficiaries retain their eligibility for benefits. Pub.L. No. 90-248, 42 U.S.C. Sec. 402(t)(4)(A) and Sec. 402(t)(4)(B). To receive these benefits, however, the beneficiary must reside in a country which does not have a social insurance scheme that discriminates against Americans:

[The exceptions created in Secs. 402(t)(4)(A) and 402(t)(4)(B) ] shall not apply in the case of any individual who is a citizen of a foreign country that has in effect a social insurance or pension system which is of general application in such country and which [refuses to offer payments to eligible United States' citizens outside the country without regard to the duration of their absence].

42 U.S.C. 402(t)(4) (the alien nonpayment provisions). Thus, eligible nonresidents are entitled to benefits if (1) they live in a country that does not have a social insurance system or (2) if the social insurance system in their country treats eligible Americans under that system in a fashion reciprocal to the treatment accorded nonresident aliens by our social insurance system.

Appellant Alam Ganem is an Iranian citizen who moved from this country to Iran in 1964 several years after the death of her husband. By virtue of her husband's employment record here, Ganem was eligible for widow's benefits under Title II of the Social Security Act. Because it was determined that no social insurance system existed under the Shah's rule, Ganem received benefit checks in Iran from 1964 until November, 1979. These benefit checks were sent to the United States Embassy in Tehran.

Following the Iranian revolution and the seizure of the Embassy, the transfer of all funds to Iran was temporarily halted by Executive Order. 45 Fed.Reg. 26685 (1980). In August of 1980, however, the Treasury Department issued a special license permitting agencies, if they chose, to resume sending government benefits checks to beneficiaries residing in Iran. Despite the Treasury Department's action, the Social Security Administration (SSA), the branch of the Department of Health and Human Services that administers the Act, declined to resume benefit payments to Iranian residents. SSA's refusal to resume payments at that time was premised on two conclusions: first, that SSA no longer had access to records and beneficiaries to allow it to verify continuing eligibility, and second, that the Iranian revolution necessitated a new determination as to whether and what sort of social insurance scheme Iran possessed to assure that benefit payments would not violate the alien nonpayment provisions.

SSA to this date still has not reinstated benefit payments to eligible Iranian residents. In March of 1984--after commencement of this litigation--Ganem notified SSA that she had returned to the United States. The agency has consequently resumed benefit payments to Ganem effective April of 1984, but it continues to withhold her benefits for the period lasting from November of 1979 to March of 1984. The ongoing nature of the controversy is therefore undisputed.

According to the government, the first basis for initially suspending payments to eligible Iranian residents no longer exists; The State Department in November of 1983 indicated to SSA that the American Interests Section of the Swiss Embassy in Tehran was willing to identify eligible social security beneficiaries residing in Iran. Even if that is not the case as a general matter, there seems to be no dispute in this case that appellant Ganem was eligible for benefits from 1979 to 1984 unless Iran was in violation of the alien nonpayment provisions. See Reply to Response to Plaintiff's Motion for Summary Judgment, Record Excerpts at Exh. 10. If Iran does not have a social insurance scheme or if the scheme it does have comports with Section 404(t)(4), Ganem should therefore receive benefits for that period. The Secretary of Health and Human Services (the Secretary) has in fact payed into an escrow account benefit payments to which Iranian residents are entitled should the Secretary conclude that any social insurance scheme now in place in Iran comports with the Act; if and when such a determination is made, beneficiaries will be made fully whole through receipt of past-due benefits. In the posture of the case as the government has presented it to us, then, the only obstacle between Ganem and her benefit checks is the government's need to determine the nature of any social insurance scheme that Iran may now have.

The government asserts that, in view of the strained diplomatic relations between this country and Iran, the Secretary remains unable to make this determination. Traditionally, the State Department provides SSA with the relevant information on a foreign country's social insurance system. In February of 1982, SSA sent a request for such information to Mr. Robert Tsukayama, a State Department official. Mr. Tsukayama responded that the situation in Iran made it impossible to comply. However, a careful examination of SSA's request makes clear that a significant factor in the State Department's inability to make this determination is the conditions which SSA imposes on the way such a determination must be made.

The letter sent by SSA incorporates what at oral argument was said to be the Secretary's long-standing and unequivocal position that the nature of a country's social insurance system can be determined only by direct contact with the relevant government officials of that country. As stated in the letter to the State Department:

In order to determine whether [Iran's social insurance system meets the conditions set out in the Act], the State Department is requested to have the American Interest Section of the Swiss Embassy in Tehran approach the appropriate official in the government of Iran to ascertain the social and welfare programs in effect in the country ... and to specify by name and title the official who was the source of information.

Similarly, an affidavit submitted for purposes of this litigation states that "contact with the current Iranian Government is necessary to determine whether the" payment of benefits to eligible Iranian beneficiaries would comport with the Act. (Emphasis added.) In light of this requirement of direct contact, it is little wonder that five years have passed since the Iranian revolution without SSA having determined whether Iran now has a social insurance system and, if so, whether that system discriminates against Americans. Indeed, the direct contact which the Secretary evidently believes is necessary to make that determination may not take place during the lifetime of Alam Ganem, who is presently 78 years old.

To overcome these difficulties and to remove the barriers to resumption of her benefit payments, Ganem sought a writ of mandamus in the district court. The district court held that the Secretary's refusal to resume payments at this time was a discretionary act not subject to judicial review and accordingly dismissed the request for the writ. We now reverse in part and order that, in the context of the current situation in Iran, it is a clear abnegation of the Secretary's statutory responsibilities to require that the nature of Iran's social insurance system be determined only through "contact with the current Iranian government." A writ of mandamus will therefore issue compelling the Secretary to make as expeditious a determination as possible regarding the nature of Iran's social insurance system.

II.

At the outset, we must deal with the difficult jurisdictional questions presented by this case and not passed upon by the district court. These questions center around the meaning of 42 U.S.C. Sec. 405(h), the much-litigated provision of the Social Security Act that precludes federal-question jurisdiction for review of social security benefit claims:

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No...