Peppers v. Schweiker
| Decision Date | 28 August 1981 |
| Docket Number | No. 80-7208,80-7208 |
| Citation | 654 F.2d 369 |
| Parties | Wilson H. PEPPERS, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kathleen M. Allen, Conyers, Ga., David Arnold, Atlanta, Ga., for plaintiff-appellant.
Bernard Ervin Namie, III, Asst. U.S. Atty., Macon, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
On Petition for Rehearing
Before HILL, FAY and ANDERSON, Circuit Judges.
Wilson H. Peppers again asks this court to consider his claim for supplemental security income benefits. He maintains that our decision, see 633 F.2d 581 (5th Cir. 1980), in which we endorsed the denial of his claim, conflicts with three decisions rendered by another panel of this court: Clark v. Harris, 638 F.2d 1347 (5th Cir. 1981), Doss v. Harris, 638 F.2d 1354 (5th Cir. 1981), and Benson v. Harris, 638 F.2d 1355 (5th Cir. 1981). We grant his motion for leave to file a petition for rehearing en banc, treating it as a petition for rehearing by this panel, and vacate our earlier opinion. While doing so, we wish to address the issues Peppers raises in his brief supporting this motion for rehearing.
Peppers contends that he was inadequately notified of his right to have representation by counsel at his hearing. Claimants in Clark, Doss, and Benson raised the same contention. Contrary to the protestations of Peppers' lawyers, however, the respective notices differed. Peppers received the following notice:
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.
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 withheld 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.
Record, Vol. II, at 24. This notice is identical to the notice received by Benson. See Benson v. Harris, 638 F.2d at 1355-56. It is not identical to the notice received by Clark. See Clark v. Harris, 638 F.2d at 1348. Referring to the notice received by Benson, the Benson panel said:
We cannot hold, as we did in Clark and Doss, that this was inadequate notice to the claimant both for the possibility of her...
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Williams v. Saul
...the claimant is 'properlyapprised of his options concerning representation."' Schweiker, 677 F.2d at 828 (quoting Peppers v. Schweiker, 654 F.2d 369, 371 (5th Cir. 1981)). Here, Williams does not mention the multiple instances during the administrative process that he was properly informed ......
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Pippins v. Saul
...the waiver to be valid, the claimant must be "properly apprised of [her] options concerning representation[.]" Peppers v. Schweiker, 654 F.2d 369, 371 (5th Cir. Unit B Aug. 1981).4 "A claimant cannot knowingly and intelligently waive [her] statutory right to counsel when [she] is not adequa......
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Cowart v. Schweiker
...this circuit has concluded that the Secretary's notice to the claimant of the right to counsel was inadequate. See Peppers v. Schweiker, 654 F.2d 369 (5th Cir. 1981); Benson v. Schweiker, 652 F.2d 406 (5th Cir. 1981); Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981); Doss v. Harris, 638 F.2......
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Beyser v. Astrue
...apprised of his options concerning representation.'" Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982) (quoting Peppers v. Schweiker, 654 F.2d 369, 371 (5th Cir. 1981)). Where the notice of the right to representation fails to inform the claimant fully as to the possibility of free cou......