Lopez v. Heckler, 83-6126

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation725 F.2d 1489
Docket NumberNo. 83-6126,83-6126
Parties, Unempl.Ins.Rep. CCH 15,133 Mario LOPEZ, et al., Plaintiffs-Appellees, v. Margaret M. HECKLER, Secretary of Health and Human Services, et al., Defendants-Appellants.
Decision Date22 February 1984

Elena H. Ackel, Bruce Iwasaki, Los Angeles, Cal., for plaintiffs-appellees.

J. Paul McGrath, Stephen Trott, William Kanter, Eloise E. Davies, Dept. of Justice, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.


REINHARDT, Circuit Judge:

The Secretary of Health and Human Services ("Secretary") appeals a preliminary injunction ordering her to restore disability benefits to a large number of former recipients of Social Security benefits. Plaintiffs are a class consisting of disabled workers and poor and disabled persons who had earlier been found eligible for Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI) benefits respectively. See 42 U.S.C. Secs. 401-31 (1976 & Supp. V 1981) (SSDI); 42 U.S.C. Secs. 1381-83 (1976 & Supp. V 1981) (SSI). Plaintiffs challenged the Secretary's termination of their benefits on the ground that the Secretary unconstitutionally refused to give effect to two decisions of this court describing the procedures the statute requires the Secretary to follow in terminating benefits. The district court, 572 F.Supp. 26, found that plaintiffs were likely to succeed on the merits of their claims. It also found that many of the plaintiffs, deprived of the very means with which to live, have either died or suffered further illness as a result of the challenged conduct. Accordingly, the court issued a preliminary injunction which, among other things, enjoined the Secretary to reinstate the benefits of many of the plaintiffs pending litigation of this case.

The Secretary challenges the injunction on two main grounds. First, she argues that the district court lacked jurisdiction over many of the individuals to whom it gave preliminary relief. She claims that jurisdiction was lacking over those individuals who had not exhausted their administrative remedies before commencing this action and over those individuals who had failed to commence this action within sixty days of receiving a final decision from the Secretary. Second, she argues that the district court was barred by sovereign immunity from awarding interim benefits.


The preliminary injunction under review here was granted to a class of former disability benefits recipients who are challenging the constitutionality of the procedures used by the Secretary to terminate their benefits. Plaintiffs made two constitutional arguments in the district court--one based on the doctrine of separation of powers, the other based on the due process clause of the fifth amendment.

The separation of powers argument is a challenge to the Secretary's policy of "nonacquiescing" in two decisions of this court. In Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982), and Finnegan v. Matthews, 641 F.2d 1340 (9th Cir.1981), we held that, under the applicable statutes, the Secretary was required, before terminating a recipient's Social Security benefits, to come forward with evidence that a recipient's medical condition has improved. 1 Although the Secretary disagreed with the holdings in Patti and Finnegan, she did not seek Supreme

Court review of either case. Instead, she announced in published Social Security rulings that she "does not acquiesce" in and would not follow the holdings in either case. See Social Security Rulings 82-10c and 82-49c. Accordingly, she ordered that Social Security Disability benefits be terminated for lack of disability regardless of whether the recipient's medical condition has improved since the initial disability determination. Id. See also Social Security Ruling 81-6

Plaintiffs argue that the Secretary's policy of "nonacquiescing" in this court's decisions violates the constitutional doctrine of separation of powers. They note that "it is, emphatically, the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). They argue that, by "nonacquiescing," the Secretary is usurping the lawful authority of the judiciary and placing herself above the law. That, they claim, is a plain violation of the Constitution. See also U.S. Const. art. II, Sec. 3 (The President "shall take Care that the Laws be faithfully executed.").

Plaintiffs' second constitutional contention is based on the due process clause of the fifth amendment. The thrust of that argument is as follows: The due process clause entitles applicants and recipients of public benefits to have their claims fairly adjudicated by the agency. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The Secretary's policy of nonacquiescence, by foreordaining the outcome of the hearings claimants will receive, denies plaintiffs a meaningful opportunity to be heard. The availability of judicial review does not cure this flaw.

The Secretary opposed the preliminary injunction on the ground that, except with regard to the parties to a particular action, she is not bound to give effect to court decisions. She also argued that plaintiffs in any event would not suffer irreparable injury as a result of the assertedly illegal action. Finally, she argued that the court lacked jurisdiction over many of the class members and that the court lacked statutory authority to award the type of relief prayed for.

The district court rejected the Secretary's arguments. It certified a class consisting of

all persons who live within this circuit, who (a) receive or received Supplemental Security Income disability benefits or Social Security disability insurance benefits and have been or will be considered for termination after August 30, 1981, or (b) receive or received Supplemental Security Income disability benefits under the "grandfather clause" of the Social Security Act, 42 U.S.C. Sec. 1382c(a)(3)(E), and have been or will be considered for termination after August 25, 1980, such consideration being or having been for the asserted reason that the claimant's disability had ceased.

The district court found that plaintiffs were likely to succeed on the merits. It believed the Secretary was violating the fundamental precept, first enunciated in Marbury v. Madison, that government agencies are required to follow and apply the law as interpreted by the courts--the "cornerstone of the doctrine of Separation of Powers that has served our country so well." It also found that the balance of hardships as between the litigants tips sharply in favor of the plaintiffs, who have "already suffered deprivation of life's necessities, further illness, or even death from the very disabilities that the Secretary deemed them not to have," and for whom "[r]etroactive relief would be inadequate, and perhaps too late, to ensure that the purpose of the Social Security disability benefits, i.e., provision of a minimum standard of living for the poor and disabled, will be served." The court found that plaintiffs thus satisfied both of this circuit's alternative tests for granting a preliminary injunction. 2 It accordingly issued a preliminary

injunction restraining the Secretary from "failing to follow, implement or accord precedential effect to" Finnegan and Patti, and from implementing the nonacquiescence policy. In addition, paragraph 4(c) of the preliminary injunction required the Secretary to notify the class members that they may apply for reinstatement of benefits and provided that those recipients who assert their belief that they remain disabled would be entitled to reinstatement of their benefits until the Secretary terminates the benefits in compliance with Patti and Finnegan. 3

The Secretary sought a stay of part of the preliminary injunction pending appeal of that injunction to this court. She did not seek to stay the injunction's requirement that she give effect to the Patti and Finnegan decisions with regard to all future terminations. She only sought to stay paragraph 4(c).

The Secretary's request for a stay was denied by both the district court and this court, see Lopez v. Heckler, 713 F.2d 1432 (9th Cir.1983), but then granted by Justice Rehnquist, Heckler v. Lopez, --- U.S. ----, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983) (Rehnquist, J., in chambers). Justice Rehnquist recognized that stay applications to Circuit Justices on matters before courts of appeals should rarely be granted, but felt that this case was sufficiently unusual to warrant the requested relief. 104 S.Ct. at 12. Justice Rehnquist had serious doubt whether paragraph 4(c)'s requirement that the Secretary pay benefits to class members merely upon their statement that they believe their medical condition has not changed since the Secretary's earlier determination was "consistent with 42 U.S.C. Sec. 405(i) or with this Court's admonition in Schweiker v. Hansen, 450 U.S. 785 [101 S.Ct. 1468, 67 L.Ed.2d 685] (1981), that the courts have a duty 'to observe the conditions defined by Congress for charging the public treasury,' id., at 788 [101 S.Ct. at 1470] (quoting Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 385 [68 S.Ct. 1, 3, 92 L.Ed. 10] (1947))." 104 S.Ct. at 14. That problem, Justice Rehnquist thought, was exacerbated by the fact that the injunction gave relief to persons who, Justice Rehnquist believed, had not exhausted their administrative remedies or even presented their claims to the Secretary as required by section 205(g) of the Social Security Act, 42 U.S.C. Sec. 405(g) (Supp. V 1981). Those factors,

he felt, justified staying the preliminary injunction...

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