De Funis v. Odegaard Brief Amicus Curiae

    I N D E X

Pago

Opinions below_____________________________________  2
Jurisdiction_______________________________________   2
Question presented________________________________   2
St: tutes and regulations invo'ved__________________  2
St: tement___________________    3

1. Wheeler v. Montgomery________________   4
2 . Goldberg v. Kelly______________________   6
3. The federal requirements :q plicable to ter­

minating or reducing welfare payme its 7
a. The requirements prior to 190S__  8
b. The present requirements____ _______ 11

St nmary of argument ______________ ______ __  15
A ■ turner t_______________________________    IS

Neither the due process clause nor the s< itu- 
tory requirement of “ fair hearing” requites a 
trial-type hearing before welfare assist mce 
pay nents are terminated or reduced___________ 18

A. The Secretary’s present practi e—
under ’which the rec pient of pi blic 
assistance is given notice and op- 
jortunity for : conference prk r to 
termination ot reduction of a: sist- 
ance and can obtain a trial ype 
hearing before sucl terminate i or 
reduction bee ones final—-sat sfies 
the statutory and constitut onal 
requirejnents of a f ir hearing_____ 19

B. If the court were.t conclude that.
the present practii is inadeq ate, 
it should not lequi ; a prelimi lary 
trial-type heai ng i every cas< be­
fore payments can >e initially ter­
minated or red iced__________ ____  32

Conclusion______________________________________  30
(i)



II

CITATIONS
Cases:

Bi-Metallic Investment Co. v. State Board of PatP
Equalization of Colorado, 239 IT.S. T! 1___  35

Cafeteria Workers v. McElron, 307 U.S. 886 __ 20,
26, 30

C alley Electronics Coro. v. Federal Coi muni-
cations Commission, 394 F. 2d 620__ ____  35

F dcral Power Commission v. Texan >, 377
U.S. 33___________________________________  35

Flemming v. Xestor, 3(>3 U.S. 603______  22
Hannah v. Bar die, 368 U.S. 420 _____ 15, 20, 29
Morgan v. United Stal s, 298 U.S. 468 __ 34
Phillips v. Commissioner, 283 U.S. 5S9 ______ 29
Shapiro v. Thompson, ■ 94 U.S. 618_    20
Shcrbcrtv. Vernier, 374 U.S. 398 _____ __ __ 20
Sniadach v. Family Finance Carp., 3S5 U.S.

337____________      28
United States v. Store • Broadcasting ( >., 351

U.S. 192__________________________________  35
Constitution, and statutes:

United States Constit ition:
Fifth Amend men :

Due Process Clause__  ____  —  5,19,22
Fourteenth Amen Iment:

Due Process ( Clause_________  _. 4, 6, 19
Internal Revenue (Tide, 20 U.S.C. 0861-

6864______________   29
Social Security Act, as amended, 42 U.S.C.

301 et seq.__ .......  ........... —  —  2. 4
42 U.S.C. 302(a) ___ ____  ___  _ _ 3
42 U.S.C. 302(a) ( 1) ______________ _____ 3,4
42 U.S.C. 302(a)(5)____________    8,23
42 U.S.C. 302(a)(8)_______  ... __ 23
42 U.S.C. 403(h) 3)___________   29
42 U.S.C. 601 et ■ r/.____________________  6
42 U.S.C. 602(a) 1)___________    3



Til

C< institution and Statutes— Continued
Social Security Act, as amended— Continued

42 U.S.C. 602(a)(5)_____________________
42 U.S.C. 1202(a)(4)____________________
42 U.S.C. 1202(a)(4)____________________
42 U.S.C. 1252(a)(4)____________________
42 U.S.C. i:582(a) (4)_______________
42 U.S.C. 1396a(a)(3) (Supp. IV )._

Social Security Act, Public Law No. 27 , 49 
Slat. 620 et sea.:

Section 2(a)(4)_____________________
Section 402(a) (4) __ _____________
Section 1002(a)(4)_________________

Social Security Amendments of 1951 64
Stat. 477, Sec. 321________________________

5 U.S.C. (Supp. IV) 558(c)____________
28 U.S.C. 2281 . ______ _____________________
47 U.S.C. 312(c)____________________________

A! iscellaneous:
34 F.R, 13595_____ ___________________
Handbook of Public Assistance Adininisti ition 

of tin; Deparl metit ( f  Health, Hduntion
and Welfare, Part I V _______________

§ 2200(b)(4)___________________________~
§ 2200(d )________________ ______________
§ 2300(d)(5)_______________________
§ 5514, item 2a___ ________________ ____
§ 5514, item 2b___________________
§ 5514, item 2c____________________ _____
§ 5514, item 2d____________________
§ 6201 i__________________________________
§ 6200(b).. ___________ ________
§ 6200 ( j )_______________________________
§ 6200(k) ______________________________
§ 6300__________________________________
§ 6400(a)_________________________

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3

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8

8
29
5

29

3
10
11
12
11
11
13
13
9

34
13
14 
9
p



IV

Miscellaneous— Continued
Handbook of Public Assistance Administra­

tion o f the Department of Health, edu­
cation and Welfare, Part IV — Continued page

§ 6500(a)__________________________________ 14
§ 6500(b)_________________________________  14

Willcox, The Lawyer in the Administrate >i of 
Non regulatory Programs, Public Adm ns- 
tration Review, Vol. X III , No. 1, W iter 
1953_________________________________________  21



J i t  i te S u p rem e  dfmtrt oj the U n ite d  S ta te s

October T erm 1969

Xo. M

M at. W heeler, et at. , aitellants

r.

-John Montgomkey, D irector oe rnii-: State I )epart- 
men r oe Social W es.take, a > d R onald Horn, (Jen-
ERAI ]\ ANAiiLi; OE THE SAX FRANCISCO ClTY AND
Cot .;tv Department oe Social Services

No. 62

-J \C K v. (toLDRERO, COMMISSIONER OE SOCIAL S RVICEN
of 'i .ie C ity oe N ew Y ork, et al., viteli ants

v.

-J ohn K elly, et al .

OX API  BAT/,Sf FROM THE E X IT ED  STATE.S' D I S T R I C T  COURTS 
FOR HE X O R T I IE R X  DIS TR IC T  Oh' CAT IFOR XIA . 17 )  THE  
SORT ERX D IS T R IC T  OF X E W  YORE

BE 3F FOE ?HE UNITEI STATE AS AMICUS CUT :AE

Thi brief is submitted in r< spouse to the < Court's 
order >f Apr I 2 1 . 1969. inviting H e Solicitor Con-



9

cal. to express the views of the United States with 
respect to these cases.

OPINIONS BELOV/

The opinion of the three-judge district court in 
No. 14 (Wheeler App. (12') is reported at 299 F. 
Sup]). 138. The opinion of the three-judge district
< ourt in No. 82 ( ( loldberg A]>p. 895a) is reported at 
: 94 F. Supp. 893.

JURISDICTION

In No. 14, the district <■ uirt's judgment was entered
< u April 19. 1998, and the notice of appeal was filed 
n June 14, 11)98. In Xo. 92, the judgment was entered 
u December 13, 1998, and the notice of appeal was 
led on January 9, 1999. In both cases, this Court 
oted probable jurisdiction on April. 21, I960 (394 
r.S. 970-971). Tile jurist ietion of this Court rests on 
8 U.S.C. 1253.

QUESTION PRESENTED

Whether the Due Process Clause of the Fourteenth 
amendment to the Constitution requires he States to 
Ford recipients of welfare assistance a tidal-type 
earing before suspending, terminating or reducing 
heir benefit payments.

STATUTES AND REGULATIONS INVOLVED

The relevant provision of t ie Social Security Act, 
; s amen led, 42 U.S.C. 301 cl scq., are as follows: 1

1‘‘Wheeler App.” citations are t;> the appendix iiv Xo. 14. 
Goldber • App.” references a e to ihe appendix ia I to. 62.



3

§ 302(a). A. State plan for old-age assistance, 
or for medical assistance for the aged, or for 
old-age assistance and medical assi dance for 
the aged must—

(4) provide for granting an opportunity for 
a fair hearing before [lie State agency to any 
individual whose claim for assistance under the 
plan is denied or is not acted upon with reason­
able promptness * * *.

§(>02(a ). A  State plan for aid and services 
to needy families with children must * * * (4 ) 
provide for granting an opportunity for a fair 
bearing before the State agency to any individ­
ual whose claim for aid to families with depend­
ent children is denied >r is not acted upon with 
reasonable promptness * * *.2

Id rtinent excerpts from Pa t 1 Y of the Handbook of 
Puli'i< Assistance Administration o f the United States
Pep i nieni of 1b'altli Ifdlic; 1 ion, and Well are here-
aide Ilaudboolv” ) ai e set o d in \|>P<■ndi' ; 1 f to the
1 >ri< for A ipeil ants in No. 1 . Tin rele\•ant prov isions
of id • Calif. rnia Well' i re and 1 nsi tutions Code and of
Cab ornia. s ale regulations a re s( out in J ppen dices
1 1 I ml IV to 11 it1 I ii i • f for . p]>( ants in > o. 1 k The
appl cable .few York stale regu! itioi is set out in
App •II ant’s 1 »ri ■f iu Nro. 62, pp. 2-5.

ETATEMl NT

1? then tinm a tempi its ow i des •ripi ion o r the facts
of t e pendi ng t ases, the gov •mm nt s: is f nth below

- 1 to!lei pi ovisions :ij ) 1 y 1 < > he i tgrams of aid to the
blind it id to ito 1 crnuini illy an< tor: y <Ii ' title* aid to rte

iti ind, or distil led, an ' medic; 1 ass' ance. 12 r S.C. 1202
(a) ( ), 1352(a )(4) , 13S2( 0(4), aad 1 :6a (a) (8) Sup! r IV).



4

only a brief summary of the proceedings below. Like 
1 he brief amicus curiae which the government tiled in 
No. 62 below, the Statement is principally devoted to an 
explanation in outline form, based on information sup­
plied by the Department of Health, Education, and 
Volf are, of certain Federal policies and procedures 
pplicable to the Federal-State pro,a rams involved here.

1. WHEELER V. jMOXTCiOMERV

Jn No. 14, the appellant, Mae Ydheeler, brought an 
iction for individual ai d class declaratory and in- 
pmctive relief from C; lifornia welfare procedures 
m emitting the termination or suspension of assist­
ance— including assistance from Federal-State pro­
grams under the Social Security Act— before the giv­
ing of notice and an opportunity to he heard in a 
trial-type proceeding. The State assistance program 
specifically involved was Old Vge Security assistance, 
which is eligible for federal funding under dnle I 
of the Social Sec irity A %  42 U.S.C. 301 cf seq., sub­
ject, inter alia, to a requirement that the participating 
state agencies provide a “ la ir hearing, on request, 
to any claimant to whom assistance is denied. 42 
U.S.C. 302(a) (4 . Because the complaint sought to 
enjoin the operation of California statutes and regu­
lations of general appli -ation on grounds of conflict 
with the Fourtei nth Amendment, a three-judge dis-

3 To avoid any c< illusion between the statutory requirement 
of n. “fail- hearing" and a. hearing Hint is fair in the constitu­
tional sense of moi ring tin reqnireine its ot the Hue Process 
Clause, quotation n arks an used where the statutory hearing 
is referred to.



5

ti-iet court was convened.4 28 U.S.O. 2281: Wheeler 
App. 29-31.

California then amended its Public Social Services 
Manual to provide for the termination procedures, 
now in effect, which were ruled on by the district 
court, fhese procedures require that whenever a de­
cision is made to wit 1 hold welfai assistance from a 
presi nt recipient, a n< (ice of the imposed action and 
the M'asons for it must he given to him at least three 
mai delivery days before the withheld assistance ordi- 
nari / would he received. The recipient is then en­
title to an informal conference with his caseworker 
or a lotlier responsibh person in the county depart- 
men before the withdrawal t dees effect, to “ learn the 
natu e and extent of the information on which the 
with olding action is based,’ to “ provide any expla- 
nati< i or information”  to the officials concerned, and 
to “ < iscuss the entire matter informally for the pur­
pose of clarification and, whore possil le, resolution.”
1 >rif for Appellants in No. 14, pp. 19a -20a.

T 1 i district court concluded, that this pre-termina­
tion informal conference procedure, taken together 
with the trial-type “ fair hear ng”  required by statute 
and egulations to he held soon after tennin ition, met 
the . mauds of due pr< cess.

4 Ti convening I In tliroi' udge court, the ruling district judge 
noted diat the pleat ings also raiset! by inference a further con- 
stitut 'li il challengt—that if the California termination pro- 
cedur s were not repugnant to the. Social Security Act, that 
Act as repugnant to tin Due Process Clause ot the Fifth 
Amoi ment. Wheeler App. 30.

1-515— 6fl------ 2



6

2. GOLDBERG V. KELLY

The action in Xo. 62 was brought by a number of 
X"w York State wel fare recipients: some of‘ them were 
recipients of goner; 1 assistance mu.or slate aw awl 
the others wore recipients of Aid to Families with 
I )  'pendent Children ( ‘-A F IK D . a federally-funded 
program under Title 1\ o! ihe Social Security -Act, 
42 U.S.C. 601 et HCtf. Like Mrs. Wheeler, they sought, 
ii lividual and class declaratory and injunctive relief 
fi an the operation of Xew York statutes and regula- 
ti ns which permitted the termination or suspension 
o benefi s before tin; giving of notice and an oppor- 
ti nity to lie beard in a triad-type proceeding, on 
g ounds of conflict with the Due Process Clause of 
tb . Fourteenth Amendment. A three-judge district 
court was convened. Coldburg App. 131a-139a.

At the time the suit war brought. State regulations 
provided for neither notice nor bearing before termi­
nation of welfare assistance, but permitted recipients 
under st; te as well as Federal-State programs to obtain 
a trial-type bearing after termination. During the 
p eideney of the action, the state regulations were 
a aended— for both State a d  Federal-Stale programs— 
p require local program administrators to choose one
0 two mow procedures: ( >) an informal pre-termina­
tion hearing procedure . imilar to tba adopted by 
California; and (2 ) a review-on-tlm-m-ord procedure' 
in which recipien s would be permitted to submit 
written statements sliowii g why tl eir benefits should
1 ' conti nu'd. Doth option re([uire sevi'ii days ad\ance 
written notice of t le reasons for a proposed termina­
tion, and both continue C e provision for a post.-termi-



t

nation “ fair hearing.” Now York City chose to apply 
the second of those procedures to all its aid programs. 
Colt berg App. “ (18a “71a.

The district com! concl idod that this second pro- 
cedr re violated tlie Due Process Clause. Coldberg 
Api . 1180 38(>a. It held tint the first procedure— less
immediately involved since all the plaintiff-appellants 
resided i . New York City and accordingly would be 
processed under the second— would bo permissible if 
eoi trued to require both eonfrontalion of persons 
whose ert dihility was in qu *stion regarding the factual 
basis for terminating benefits and that the reviewing 
officer be a superior of the person proposing the ad­
verse action. Coldberg App. 386a-389a. The court 
noted that nothing in its opinion was “ meant to affect 
the right to a post-te rmina tion hearing in accordance 
witl the procedures already in existence,’ ’ Coldberg 
App. 391a— i.c., the* “ fair bearing" procedures re­
quired In federal law for programs under the Social 
Security \rt and carried o' er by State law into State - 
funded general welfare programs. Tims, as in 
T17 I'clcr, the court appear'd te> reach its conclusions 
in the context of an ass nr; nee th it a nil >ost.-termi- 
natiein trial-type1 bearing would be bad.

3. TUB FKDKI’AIj EE.QU1RBMEXTS APP I TO A RLE TO 
TERVI iNATIM i OR REIUJC1 \TG WET FART ’AYMF.NT T

D iring tlie past, few ye irs, eonsidei able attention 
lias been ‘ocused on ihe op ration of f  lerally funded 
I rograms under the, Social Securi y A . Much of this 
attention has beam directed to th que tien s of eligi­
bility ane level of welfare assist; nee, and the proe-e-



8

dures for determining these issues. As a result, those 
procedures have b-*en in considerable flux. V. e set out 
iu'low, first, the procedures that have been generally 
required until recent times of States participating in 
federal programs: and second, the current require- 
aents, the product of changes of which most became 

effective duly 1 , 1 ! 08.

A. TUF. REQUIREMENTS I ’RIOR TO 11ICR

As originally enacted in 11135, the Social Seem it\ 
\(-t provided tha each State plan for public assist­
ance must provide for granting to any individual, 
vhose claim for aid or assistance is denied, an oppor-
unity for ; ‘ ‘fail hearing”  before the State agency. 
Sections 2 (a )(4 ). 402 (a)(4 ) and 1002(a)(4) of the 
Social Security A -t, Public Law No. 271, 40 Stat. 020 
I set/. The Social Security Act Amendments of 1950, 
>4 Stat. 477. 549,; dded the requirement that such hear­
ings be afforded ii cases whore claims for benefits were 
not acted ui on wi h reasonable promptness; otherwise,
the provisions have continued without substantial 

change to the present.
On the basis of t hose “ fair hearing” requirements and 

the Secretary’s general authority to require that the 
states provide for such methods of administration as 
he finds necessary for proper and efficient operation, 
42 TT.IS.O. 302 (a)(5 ), 002 (a)(5 ), the Secretary (like 
his predecessors, the Federal Security Administrator 
and the Social Security Hoard) has prescribed de­
tailed procedure requirements for ‘ ‘ fair hearings. 
Any claimant wl o is aggrieved by any agency action 
affecti lg his rcc< ipt of assistance, including tormina-



9

tion, must be afforded a bearing i f  be requests one. 
T  ie claimant must be informed of bis right to a bear­
ing, how to obtain it, and that be may be rep -esented 
by counsel; and any clear express.•• n o f a desire to 
present bis cast' to higher authority must be treated 
a an effective request, lea rings m to be conducted 
by impartial officers, in accordant with published 
procedures, at a time and place < nvcnient to the 
elaima d and after reasonable noth.' to him. A t the 
It aria s. the claimant must have ; opportunity to 
c  amii o all documents and roc >rds tst'd at tin' hear- 
it g, re hte any testimony or evident present, bis own 
e idem o, witnesses, and testimony, dvance all perti- 
n nt arguments and secure conside tion o f any fac­
tual or legal issue important, to his r dm. The decision 
n ust be based exclusively on the e 'deuce and other 
muteri d introduced at tl e hearng. ] iandbook §§ (1200, 
ft 00; ilrie f for Appellants in \o. 14, pp. 3u-9a. In 
si ort, while “ |'t.]lie hearing is co iduc >d in an informal 
r: ther than formal court-type pro< lure in order to 
serve the best interests of Hit1 clai ant. [, it] * 
is to he subject to the requirement:- >f due process.”  
LI. at y 6400(a), p. 10a.

A 1th >m b tliest' j roced ices an ■ foi >wed at the “ fair 
la arin ,” until recent! \ the inly requirement for 
a; enee pioeedures ]>rim to termini ion or reduction 
ol pay in its 1o individi als already receiving aid or 
assistance was that the paymei ts m ist be continued 
until 1 lere bad been a formal agei y determination 
that, t (' individual was no h.ngei eligible or was 
ebgibb only for lesser amounts. ’ hat is, agencies 
ci uld iot terminate or reduce issis nice jam ling in-



10

vcstigations or the evaluation of information it had 
received. Handbook, § 2200( b) ( l). I Jut 1 hoy were not 
required to inform recipients that an investigation or 
evaluation was under way or to permit them to par­
ticipate in the process leading to this initial decision. 
Once the agency decided to terminate or reduce assist­
ance, it could do so without advance notice or any 
! wring procedures and then 1 otif'y the individual of 
his right to a “ fair hearing.”

The rules governing Federal funding operated in a 
way which probably encoorag l the Slates to make 
tl ere determinations promptly, and did not encourage 
i volvement of the recipient at this slagt. As a matter 
( overall policy, there is a st ng inter‘st in paying 
; sistance to all individuals w ho are eligible, and in
< nying assistance to ail indivi luah who are not eligi- 
1 e. There is also a need, in a Fedoral-Siaie program, 
:f r a fa ir sharing between the federal and State gov- 
t muents o f the costs of those case.- in which, despite 
tl e best efforts of the administrators to determine 
( igibility, payments are made to persons Inter found 
1 have been ineligible. Accordingly, Federal mateh- 
i g funds are paid in cases where a Stale follows the
< rrect procedures hut err meo isly determines that an 
i dividual is eligible. To inis extend, the Federal gov- 
( nnlent shares in the payment of ineligible cases, in 
tl e interests of orch rly aclministr iti >n.

As a condition of such p iym< nts l ndcr the previous 
i gulations, however, the 1 'edera! government insisted 
o speedy action, with r< ;pect to both the periodic 
r pilar reevalnation of all reci ienis and the special 
e ablations which tl e Stab s are - xp >cted to undertake



11

upon receipt of information suggesting the possible 
ineligibility of particular recipients. Thus, if rede- 
terminations of < iigibility were not made within pre­
scribed time periods and the recipient turned out to 
have become ineligible, Federal rinancial participation 
was not av; ifable for payments in periods beyond the 
dead'ine for Dial ing the re< eterminat: >n. Handbook 
§ 22<H(di ; § of) 14 , item 2a. i imilarly, the State must 
investigate within 30 d; vs any report of possible in­
eligibility received during tin interim Ir ween regular 
reiuwstig.i; ions. Handbook § of, 14, i 'in 2b. The
periods ■•wed did not ])m■mit i 01 lgtl : ]Vi .1 oeedures.

i a r('SI iif, wi ere assistauee \vas tm iiinated or ro­
(I I ICC :! a., 11. i ;a “ fa'r hear: ]} oy was tlien osted, the
usual st;: i o pract ice was to 11 .•» V”/ > 1 <1 > V the t mu illation or
redu.i •t iOT\ h i effe<-t ] lending lie learin -if;.( cn;ues
eouk' co: ■4 ;; .me th ■ paymcuts if thay wi died, but Fed-
oral :inamcial as dstanv ■ was no■ pro idee1, and in
ju'ac ice the Stati ■s did not oi■dinarily i: ■if'C such pay­
ment V,dthout .1'Vdora 1 m; i chi i:g. ! f the hearing
decis.l on vvas in favor iif ti: ■ im!i vidu 1, tiho. States
could •eins' ate t: ie pay item " P-'<iSTV'Ct i vely., or they
could pay for t! ie bad ]>e •iod. I f  ti ey i'•hose the
latte COIll'se, flu y  woi1 id n •eivi Fed. ral matching
fund

B. TUR PIlESRXT Ii ■’.Q Fill i HTCXTS

Tit * revent changes, i lost of w hich 1>ok effect on
•Inly I, 106S, considerably m< lifted the : xisting prac- 
tice by requiring advance n< ice that adverse action 
is pi ■ lined, and an opportuni y for an informal con- 
fere ee before that acti< n tal >s effect, ; ad providing 
an ilargei scope of fklera! funding participation



12

during the process of assistance reduction or termina- 

1 ion.
Thus, it is now required for participation in feder­

ally-funded programs that when a question arises 
concerning change in a recipient’s circumstances, the 
agency must give—-

advance notice of ques ions it h is about an 
individual’s eligibility s that a rcc picnt has an 
opportunity to discus his situ lion before 
receiving formal writ! n notice' >f reduction 
in payment or terminati n of assist mce. [Hand­
book' § 2200(d ) (5 ) . ]

This irocedure is designed tc serve so' ral purposes 
in the public' assistance prog 11ns. First it gives the 
individual a chance1 to bring lew or additional facts 
o the agency’s attention ; thus he may Ik able to show, 
arior te> anv more lormal a< ion, that ids situation 
ias not actually changed, or as cliany d to a lesser 
legre e than the agency belie es. I f  In can tliereby 
avoid termination of assistai -e, it ben fits both the 
individual, who does not h; e his usi al payments 
inter upted and need ne>t sen a “ fair tearing,” and 
the agency, which will be t Hired the expense and 
staff time involved in an unn -essary I anal hearing. 
More >ver, because this advan ■ notice ; ocedure must 
be followed in all cases, ev n those' r cipients who 
would not contest terminatioi of assist ice are given 
some time to prepare for 10 effect vhich it will 
have on their financial sit itions, e! minating the 
el cm* nt of surprise.

I t  soon became obvious the states w 1 information 
of possible ineligibility could ot com pi with this new 
requ rement within the 30 ay peri* allowed for



13

making a determination of ineligibility du ing which 
Federal matching continued. Accordingly, the States 
are now permitted an additional 30-day period of 
federal matching during which to give the advance 
notice, provide time for the recipient to obtain and 
appear at a conference, eonsidei any new evidence or 
oilier re levant matters he may raise, and determine 
whether he is still eligible. Ham book § 5b 1, item 2c. 
Tl e fact that the new period i this brie however, 
sh \vs tl at the conference is con rived as a, i informal 
an exj(editions proceeding bef -e local aft", not a 
tri . 1-type “ fair hearing’ ' at the date agem y level. It 
is nerely a method of providing lotice am screening 

on thoi-e cases which can he vsolved h\ informal 
pi 'Cedures.

iter the advance notice p ocedure, t le agency 
m; kes its determination on the basis of all the infor­
mal ion it then lias available. ssistance payments 
nn st 1h continued as before 1 > this point. I f  the 
ag ncy < <-ternlines that assistant will be ter >limited or 
re< need, it nur t communicate tl decision In writing 
to he in lividual and advise him ' his right to request; 
a • fair iearing”  before the Sta e agency. i f  a “ fair 
lie; ring”  is not requested, that the end < f the mat 
tei I f  a hearing is requested, t State must hold it 
an tak ‘ final administrative a lion withi i (it) days 
of the eqnesty' Handbook § (12 0 ( j ) ,  but is not ro-

s flic S'ate is allowed ail additional ( days of fe leral match­
ing to carry out the mechanics of disco I inning or r during pay- 
mo Is. Ifa ldboolc, §5514. item 2d..Tin a total of liree 30-dav 
pei ods— tor investigation of ineligibi y, for the idvance no- 
tic; and c inference, and for stopping • payment are allowed 
foi continuation of Federal matching u State pa\ lents to in­
ch; 'I>11‘ individuals and families.

302 09------ 3



14

quired to continue assistance pending tin> heaving and 
decisi >n. I f  the State does continue as istance, how­
ever, [federal matching- funds now will hr paid, Hand- 
hook § 6500(b), whether the lie a ring decision is in 
.favor of the recipient or the agency. Two or three of 
the S ales continue assistance pending liraring. In all 
of tin other States, if the hea ring decisii 11 is in favor 
of th recipient, the agency i repaired lo make cor­

rect!' payments retroactive!;, to the date of the in- 
corre t action terminating r reducing payments, 
ITani look § 6200(k), and Fe< ral matcl ng funds are 
•aid ir these corrected paynu its, TTandl ml; § 6500(a). 
(a ).

In  sum, under the cun- utly a]i]>1 icahle IIE W  
equi ements, assistance pay: 'ids unde federal pro- 
,'rani may not he terminated or redu -cd until the 
ecipi 'lit has been given a dvr ice notice and an oppor­

tunity for a conference, and lie agency lias made its 
( eteri iination. I f  the paymo ts are terminated, the 
iudivi Inal may obtain a “ f  r hearing" which com- 
orts with the customary reqi irements o ‘ due process 
efor< such termination bee< mes final. I f  the hearing

< ecision is in favor of the recipient, corrective pay­
ment must he made retroact; ely. Tho ; ate at its op­

tion ay continue payments aiding th hearing and, 
if it oes so, there will he fi ral shariu ;■ in the pay- 
i icuts regardless of whethei he d<'<-isi . i is in favor 
>>f t Ik recipient or the agency.'

“On August 20, 1 !)<>!), 11 ic Sec tary postp.. >d IVom O.to- 
5m 1, lie.), to July 1. 1070, the c 'Ctivo date ■ a new regula- 
i on r paring that, in cases in Iving <pu-- i >ns of fact or 
j ulgm it relating to the partici, ir individual involved (as
< isting lishetl from cases involvii the application of a gen-



15

SUMMARY OF A GUMENT

No question lias been raised that the trial-type hear­
ing t hat is held at the reqi est of tlie recipient of 
welfare assistance before the erminatioi or reduction 
<>f his benefits becomes final, satisfies 1 fill the statu­
tory requirement of “ fair hearing” and the constitu­
tional requirement of procedural due process. The 
issue here is the narrower o: ‘ of the liming of such 
bearing: whether it must be eld bcfop there is any 
preliminary termination or p  luction o benefits. We 
subnet that the present a< ninistrati e practice— 
under which the beneficiary p  eives ad nee notice of 
a proposed termination or r< luction o his benefits 
lias tb(' opportunity for infoi nil confc mce with the 
taff of tin' State welfare ag icy befoi • such action 

is taken, and can obtain a “ f; r bearin', ’ before such 
termination or reduction lie* ines final -satisfies the 
statutory and constitutional requirenwilts o f fair 
hearing.

A. Where questions of adm istrativc iroeeduve are 
-oncerned, “ the re<iui rements due pro ss frequently 
vary with the typo of proceei ng invol d ’ ’ {Ilannali 
• La d ie ,  3(13 l .S. -130, -110 ). n the co ext of public 
velfare programs, these reqi •ements , > I so may vary

•nil policy to individual cases, see ifra, pp. ,-85), assistance 
be continued until (here has been trial-type earing, 84 IMP 
3595 (19(59). A press release of lie Departi cut of Health, 
education, and Welfare explained taf the Si \s are slid pip­
ing into effect the federal require nits whirl became effective 
uly 1, 19(>S, and are working t attendai problems, and 
hat some States have taken the j it ion that i lie effect of the 
iew regulation will he to keep re pients on , u> rolls hevond 
lie point of reasonahle question ah it their el hilily.



16

"'it'll tin; nature of the programs adopted. We discuss 
oidy what procedures are required for tlx particular 
program here involved.

The determinatio i of the appropriate procedures 
here requires a balancing of competing social policy 
considerations invoicing, on the one hand, he govern­
ment’s interest in avoiding improper ex. uditure of 
v dfarc funds and unduly burd< nsome pro. (hires, and 
o i the other hand the interest of the -ipients of 
Public assistance in fair treatment and p >er receipt 
of the benefits Congi*ess intended them t( lave. Since 
"  are interpreting the statut try re<[uii incut that 
th >re be a “ fair hearing,” snbst; ntial wei: t should be 
gi' en to the expert judgment of the Secretary that, 
on the basis of present experience with the opera­
te n of public assist nice progr; ms, the p icedures he 
ha-i adopted constiti te the most approp ate method 
f« ’ accomplishing th > congressional direct ve. The cur- 
r< it procedures bee; me effective' only on ' dy I. 19(JS 
ai 1 it is still too soon to make an adeouate assess- 
nn nt of their effectiveness. The changes they have 
m de have required substantia! modifiewi ms bv the 
St ites of their prior practice, and these i i ditications 
ha Te not been completely achiev d. I f the . -esent pro- 
cedures should prove inadequaie properl \ to accom­
plish the Congressional purpose retlected n the fed- 
ei'.d program here i lvolved, th< Secretary can make 
fu flier changes. It is important, ho\ve\< ■, that his 
thr ibility to do so should be preserved, and that fixed 
procedures should no be required.

There is a strong public interest in av< iding con­
tinuation of payments to persom who arc i ot entitled



17

thereto, both to avoid improper disbursement ol' gov- 
ernment funds and to prevent prejuc ee to the inter­
ests of eligible persons who would suffer i f  substan­
tial sums were paid to ineligible ones, i f benefits were 
required to be continued whenever a trial-type bear­
ing was requested, the inevitable res It would be the 
disburse merit, of significant amounts to person ulti­
mately found not entitled thereto.

15. I f  contrary to our submission, the Court >re to 
conclud ■ that the present procedures - re inadeq ite, it 
should ot require a preliminary tri; type hea ng in 
every case before' payments can be in . ially term nated 
or rcdiK >d. Such a requirement, which he court below in 
No. 62 came close to adopting, would - mse sub antial 
and unnece'ssary delay in a large number of cases and 
would i npose needless expense upon the welfar pro­
grams. Moreover, the court below in Vo. 62 apn rent- 
ly woul 1 require a trial-type hearin even wh" e the 
only issue raised by the claimant is the validity of 
settled principles of general applicability— as, for 
exampli , a challenge to the general evel of In ictits. 
Rcquiri ig a trial-type hearing in ev ry such ca te be­
fore be; efits could be initially termii ited would mean 
that pe. sons who had no hope of ulti itely pre\ tiling 
becaust hey art'ineligible under the cl llenged) vctico 
neverth less could continue to receive enefits u il the 
hearing were held. A  trial-type heat ng ordin; rily is 
not ret, tired before a general prim pie is ro inely 
applied o a particular individual.



18

ARGUMENT

NEITHER THE DUE PROCESS CLAUSE NOR THE STATUTORY 
REQUIREMENT 01*' “ FAIR HEARING”  REQUIRES A TRIAL- 

TYPE HEARING BEFORE WELFARE ASSISTANCE PAYMENTS 

ARE TERMINATED OR REDUCED

No question lias been raised in these eases that the 
trial-type hearing, ae< mled 01 request, to the recip­
ient of welfare assistance before the termination or 
reduction of his benefits becomes final, satisfies both 
the statutory requirement of “ lair bearing’7 and the 
constitutional standard of procedural due process. The 
issue, rather, involves the timing- of such hearing: 
whether, as the recipients coi fund, it must be held 
before there is any suspension, termination or reduc­
tion of benefits, or whether, as the Secretary believes, 
the constitutional and statutory requirements are sat­
isfied as long as the recipient can obtain such “ fair 
hearing” before there is a find determination as to 
whether bis benefits are to be ended or reduced.

To state the issue another way, in the context of 
public assistance programs involving millions of re­
cipients and thousands of possible hearings every year, 
do the essential elements of ir procedure require 
anything more than the present practice? Ihider that 
practice, ( 1 ) the beneficiary receives advance notice 
that bis payments are to be terminated or reduced ; ( 2 ) 
he has the opportunity for a cm Perenco with the staff 
of the wel fare agency before su< h termination or reduc­
tion, at which the reasons I'm* the action will be 
explained to him and he can present any facts or ex­
planations showing why his assistance should be con­
tinued at ts existing level; (3 ) if the state then termi­



19

nates or reduces assistance, he can obtain a “ fair hear­
ing”  lx*fore llie state action becomes final; and (4 ) if 
lie prevails at such hearing, lie receives back payments 
for the interim period during which his benefits were 
terminated or reduced.

Our submission is that the present procedures sat­
isfy both the statutory and conditutional equirements 
>f fair hearing, and that a t mil-type hearing is not 
required before public assistance is susp tided, termi­
nated or reduced. I t  also follows, we bel we, that wel­
fare recipients arc* not entitled to a continuation of 
their previous benefits during the period between pre­
liminary termination or reduction and tlie final deci­
sion of the state agency that i rendered after a “ fair 
hearing” in those relatively fe cases wl ere such more 
formal proceeding is requestet

A. THE SECRETARY^ PRESENT PRACTICE-— UNDER WHICH THE RECIP­

IENT OF PUBLIC ASSISTANCE IS CI\ V NOTICE 1) OPPORTUNITY 

FOR A CONFERENCE PRIOR TO TERM \TION OR R! RUCTION OF AS­

SISTANCE AN1) CAN OBTAIN A TRIAl 1'YPE HEAR! ,G BEFORE SUCH 

TERMINATION OR REDUCTION IiKO IBS FIN  AI -SATISFIES THE 

STATUTORY AND CONSTITUTIONAL REQUIREMENTS OF A FAIR 

HEARING

1 . Neither any of Hie partie. nor tin* Dinted Stales 
disputes that the Due Proee. Clause of the Four- 
teentl Amendment and, for 11 District if Columbia, 
the F ifth  Amendment to the tonstituth n, are appli- 
cabli* to public welfare progi mis. Alt! ugh there is 
no constitutional requiremei that sic li programs 
exist- so that access to benefi payment could be de­
scribed for some purpose's as a 'privileg ' rather than 
a “ right”—the fact of their < \istenee carries with it 
the guarantees against gove mental iprioiousness



20

and arbitrariness embodied in those clauses. /'>.//., 
Sherbcrt v. Vom er, 274 U.S. 208; Shapiro v. Thomp­
son, 394 U.S. 618, 627 n. 6. bidiis observation, however, 
serves only to frame the question of what procedures 
are to be followed in benefit termination cases, not to 
answer it. For where questions of administrative pro­
cedure are concerned, as dislinct from the issues of 
capriciousness and arbitrariness involved in the cited 
cases, “ the requirements of due process frequently 
vary with the type of proceeding involved.”  Hannah v. 
Larchc, 363 U.S. 420, 440. A r the Court, expl ained in 
Cafeteria. Workers v. McElroi/, 367 U.S. 886, 895:

[Consideration of what procedures due process 
may require under any given set, of c ircum ­
stances must begin with a determination of the 
precise nature of the government function in­
volved as well as of tin private interest that has 
been affected by governmental act ion. * * *

There would bo significant differences, for example, in 
the procedures necessary in a zoning case, a prosecu­
tion for a capital crime, a garnishment, a suspension 
of a government employee, or the termination or re ­
duction of public assistance.

2 . Tn the context of pubi e welfare programs, we 
believe those requirements might also vary with the 
nature and aims of the prog vms adopted. 1 f a State
wished to— and assuming it constitutionally could__
revert to programs for dispensing charitv to the 
“ worthy poor,”  it, might be permitted far different 
procedures than would have h attend programs whose 
purposes include promotion < f equity among all re­
cipients and their freedom fi >m the private charity



21

giver’s traditional control. In view of these possible 
variations, we address ourselves only to the question 
what (hie process requires for the federal!) funded 
programs lore at issue. For their purpose is <• ear.

When the Social Security Act was issed its 
: public assistance titles were designed to bring 
about, for the population groups to wi ieh they 
app ied, important changes in the i .oner of 
dis] ,nsing aid to the needy, flic pub!i almoner 
had been prone to assume he prero fives of 
the giver of private eliarih, to gran or with­
hold according to his judgment o f the deserts 
of 1 te applicant, and often to assunr a pater­
nalistic control over the live s o f those lie aided. 
Tin Social Security Act s night to itroduce 
int< this field a govern 1 lent of laws, a:; 1 to that 
end. among others, attached a series . f condi­
tions to it s proffer of fedei al grant n-aid to 
the states. One of the condh ions re' res that 
the state grant a fair lieari g to any pplicant 
who is denied assistance; otl rs look 1 uniform 
application of the plan throughout tk state, to 
equiiable treatment of pers< is in dil’i ing eco­
nomic situations, and to 1 e safegu ding of 
information about applicants, and r. -ipients; 
while tin' definition of assistance as “ n uey pay­
ments”  calls for the givin ; o f casl with no 
strings attached. [W illcox, he Lav r in the 
Adiuinistritiou of Nonrec laiory 'ograms, 
Public Administration Rev w, Yob t i l ,  No. 
1, W inter 1953,12, 15-1G.]

In  thus legislating to provide f >r the general wel­
fare, the Congress authorized the i e of Fed al funds 
to fi mis! part of the cost o f pa incuts m le under 
Stall pub c assistance plans. lIow< er one nr r charac-



0 9

/
/

/

terize the interest of the benefieiaries of such pro­
grams, it certainly is less tangible than that o f the 
beneficiaries of the federal old-age, survivors’ and dis­
ability insurance program. For under 1 he latter pro­
gram the potential beneficiaries pay taxes therefor 
that are placed in a trust fund so lhat, unlike the 
public assistance benefits here involved, payments are 
not dependent upon yearly Congress! ■ ial appropria­
tions. Yet even under that program ihe “ right” to 
bene its is not protected under the Fifth Amendment 
in t ie  manner of personal property ( Flcmminf/ v. 
Neat or, 36b U.S. 603), and benefits are terminated, 
redu jed or suspended without a prior t rial-type hear­
ing.7

The statutory mandate that there ' a “ fair hear­
ing” before public assistan-e payments are denied 
helps to define the kind of protect ion lhat Congress 
intended to give the be noth iaries of tch payments.
The statute does not distin uish bel\ en the initial 
denial of applications for bei 'fits and "ir subsequent- 
deni;'. I by termination. Whe t a State agency decides 
initially that a new applica t for hem tits is not en­
titled! thereto, it does so wit sout first >lding a < rial- 
type hearing; such a liearim is held o y if tlic appli­
cant requests it; and when uch a he. ing is sought,

7 While (.here are differences be> 
the old ag.' survivors’ and disab 
grams, a requirement that the S 
sistance payments pending the <l 
sistent with ‘lie practice aufhori 
Act for the 0ASD1 program, \ 
by t! e Federal government and 
whicl irdiv! buds have a stated

seen the pi 
ity insur.an 
;tes must < 
u r  hearing 
d under I 

aich is <I i • 
lvolvos ii 
■ “ right."

'ic assistance and 
■ fO A S D ! )  pro- 
itinuo public as- 
would be incon- 
Socia! Security 

11 v .administered 
ranee benefits to 
. 11. hlfr:'-.



23

benefits are not ]>aicl in the interim.8 I t  lias never been 
suggre ted that this procedure denies tlie applicant a 
"fa ir icaring.”

As we develop below, cogent policy considerations 
support the Secretary’s judgment that the same prac­
tice should be followed where following the informal 
conference procedure, the Shite initia ly decides to 
lermirate or reduce benefits, fids pra dice not only 
records with the statutory re< uirement that there be
ucha hearing before a claim f< rassistan -e is “ denied,”  

but is further supported by the statutory provisions 
autlioi izing the Secretary to adopt such methods of 
admin stration as he finds t< lie necessary for the 
grope • and efficient operation o public a> distance plans. 
-’2 U.S.C. 302 (a)(5 ), 602(a) ( f ) .

°. d o determination of wha procedu es and timing 
are appropriate in an administrative proceeding of 
inis h pe requires a balancing of competing social 
] obey considerations. On the one hand, there is the 
interest of the government in insuring that tiie pro- 
tedures do not become either so unnecessarily expen­
sive or so time-consuming and cumbers* me that their 
i ltimate effect is to hinder rather th; n aid in the 
( ffectu ition of the public policies the program re- 
f ects. )n the other hand, there is the i derest of the 
} ersons affected—-here the recipients of public assist­
ance— in being fa irly treated and in pro] >rlv recefving 
t le benefits they rightfully cai expect the program to

8I f  t ,0 applicant prevails at sue hearing. ! .'iiefits are paid 
ritroactively to the date of the in al (hut er oneous) denial.



accomplish. These two interests are complementary 
lather than antithetical. For welfare recipients would 
suffer in the long run if' the government were required 
to follow inefficient and unnecessarily burdensome re­
quirements, while the public interest would suffer if 
the recipients were not treated fairly.

Moreover, since we are dealing with the interpre­
tation o f the statutory command that there be a “ fa ir 
hearing,” it is appropriate to give considerable weight 
to the expert judgment of the Secretary that, on the 
basis of our present experience with the operation o f 
] ublic assistance programs, the procedures he has 
< dopted constitute the most appropriate method for 
accomplishing the congressional directive.

The current procedures have been in effect only 
since -July il, 1968, and ii is still too soon to make an 
adequate assessment of their effectiveness in properly 
accommodating the competing policy considerations. 
The introduction of the new informal conference pro­
cedure and the establishment of the 60-dav period for 
completing trial-type hearings wl eu requested came 
at a time when an increasing mi nber o f public as­
sistance recipients were challengir ? agency decisions, 
were represented by counsel and wore requesting “ fa ir 
hearings.”  In  order to handle this nereased workload, 
the .States had to hire and train more hearing exami­
ners and to appropriate funds for their employment. 
Although the States have made substantial progress in 
solving these problems, they have not been fully sur­
mounted. Moreover, in some States a large number of 
public assistance recipien s have r< quested “ fair hear- 
i lgs”  to challenge basic aspects of the particular wel­

24



I

fare program involved—contending, for example,: that 
the level of 1) 'nefits is inadequate.” Challenges of this 
type inevitably lead to extensive delay in the hearing 
and decision of all pending cases.

The nature of public assistance programs inevitably 
requires consi lerable room for experiment and change 
in determining, through trial and error, what are the 
most effective methods for carrying out the programs. 
It is therefor > important that flexibility in adjusting 
the procedures to changing circumstances remain 
available to tl e Secretary. Significant changes recently 
have been lira le in the procedures, and i f  they should 
prove i lappi >priate in the light of experience in 
working witl them, the way always is open for the 
Secretary to nodify them still further. A t this stage 
of their devei >pment, however, the procedures should

9 For examplt during the r  eek' of January 29, 1!>( >, there 
were approxim; ely 500 requests for hearings in the Miami, 
Florida, area < udlenging the amount of assistance and the 
method of its < imputation. In seven counties in Kentucky in 
July 1969 there vore 417 requests for hearings challengii g deter­
mination.- of ine gibility that had resulted from a change made by 
the State >f Ke tueky in its delinition of um mployment In De- 
cemher l! >8 and January I960 in Los Angeles County, California, 
there wer ■ 222 inquests for hearings on the contention hat the 
amount o'  bene !i is was inadequate; in Hinds County, IMf hssippi, 
in July )67 th re were 184 requests for hearings on the same 
question. In October 1968 in Philadelphia, I’ennsylven a, there 
were 275 requests for hearings on a claim that each child 
should re eive $50.00 to have an American Christmas.

In add ion, theme have recent! v been several instances in which a 
large nun her of requests have been made for a hearing on a single 
issue. Foi instance, in New York City in November 1968 l ! we were 
approxin ttely 1! >00 requests for hearings on whether the ■ upient 
needed a eleplx le.



2(1

not be frozen into the fixed molds in' 
]lc 'ssistanee recipients would push
( 4 Testf,(1 by these standards, we 

Secretary's present procedures for 
fa i“  Payments meet the statutory a 
requirements of a. fa ir hearing.

1,1 view o f Congress' choice to requ 
m - ' for aggrieved claimants of he 
Hoc al Security Act and the implicath 
for the nature o f the benefit progra 
we lo not argue that it is -possibli 
[the receipt of benefits under the Act | 
loge subject to the Executive’s plen 
that “ notice and iiearing are not co: 
finir -d.”  Cafeteria Workers, supra, : 
Xon 'fheless, the privilege aspect o f r, 
role s both the government unction 
interest involved in a way which be 
the 'prior hearing question.

Av a matter of government funetioi 

in th '\ ri.-ht of the federal and state 
p!a.c< budgetary limitations on the tot• 
they will undertake for the e progr; 
mati- ally than a simple desire for <: 
rost, such limitations make ; i aceure 
binds to eligible ])ersons imp. •ative; i 
of ineligible persons are abb to enf. 
receive benefits for substantia! period 
■“frect will be to reduce the amounts 
sharing by eligible recipient . ft  see: 
hut f payments are eontim d pend:- 
ug”  here will be more reqi -sts for

0 which the pub-
1 hem.
mb:.lit that the 
'rimnafing wel- 
I constitutional

' re a “  fa ir hear- 
1 "'fits under the 
os of t hat choice 
u, supra,  p. 22, 
to ‘Anraw: rize 

as a mere ju ivi- 
1 ry power, ’ ’ so 
<itutionallv re- 

E.S. at 8.fib. 
eipt of benefits 
oid the private 
ors directly on

. if. is reflected 
ovfunments to 
I expenditures 

ms. More dra- 
ieiency or low 
• a i Vocation of 
I urge nmnhcrs 
ree a right to 

of time, the 
available foi­

l s  predictable 
g “ fair hoar- 
uch hearings,



and mcm payments will be made to ineligible 
individual .

rl'be full effect of continuation o f payme its pend­
ing hearing would be experienced only ovc a ])eriod 
of years. \t present, information is scanty. Missis­
sippi, however, in August 1968 put into effc: ‘ a policy 
ef continr.ing assistance pending “ fa ir lie ring” in 
eases of t< -urination o f assistance. For the ; ar ended 
dune 30, il )69, the increase over ti e previoi s year in 
the numb r of liearings requested was sul -tantially 
greater in -ases involving terminat on o f ]> • fits than 
for all we fare cases; the latter inn-eased r -uglily 40 
pore; nt, fi an 773 to 1059, while th * former increased 
appr iximaiely 200 percent, from )7 to 28 . O f the 
288 inquests for hearings in 19(38- 9(i9 inv< sing tor­
mina ion < ’ benefits, 46 wore witbd awn pro • to hear­
ing, one e! limant died before lieai ing, 26 <• ises were 
pend ng o- July 1 , 1969, and 215 < ecisions cere ren­
dered. 50 < ecisions were in favor o the clai lant, and 
165 decisions uphold the agency’s d terminal on. Thus, 
on the basis of the “ fair hoari g ”  deci-ions, the 
claimant was ineligible in 77 pe cent of die cases 
wher - assistance was continued, n the p ior year, 
when benefits were not continued ] aiding h siring, 57 
hearings were held in termination ases; tin claimant 
prevailed n seven, and the State geney i 50.

Moreover, the cognizable priva ■ intorei- in con­
tinued rec-’ ipt of welfare benefits ending 1 earing is 
i lore tentai ive than a direct interest i proper .• as such. 
The issue ;s not whether a present sset is t< be taken 
away fron its owner, but whether he reel] nt shall 
continue t- share in a limited reso ree altlu ugh (un-



28

like others) his eligibility is in serious doubt. There 
could be no legitimate interest in a prior hearing 
simply as a means by which ineligible persons could 
proh ng the time during which they continue to receive 
benefits at the expense of the general public and, pos­
sibly. of eligible recipients. Tbe in teres arises because 
some individuals in fact are or have a sound claim 
that they are, eligible despil a prelii linary determi- 
nati< n to the contrary, and herefore should not be 
mad* to suffer such hardslii is as ar< set out in the 
com] laints. Thus, as would lot be true of property 
detei urinations, assessment o the indi\ idual’s stake in 
a p ro r  hearing depends on i nv often the individuals 
reqm sting such hearings pro ail.

Th i present case is then lore unlike Sniadacli v. 
Fam ly Finance Carp., 395 1 .S. 337, \ here the Court 
inva dated, under the Thu Process Clause o f the 
Poui eentli Amendment, a t ate pro<- dure by which 
wag( s could be garnished ay bout pr >r notice to or 
opp< 'tunity for hearing for le wage arner. The key 
to t at decision was that “ [w ]e deal here with 
wage — a specialized type of iroperty presenting dis­
tinct problems in our econom - system' (p. 340). Potli 
the i lajority opinion and tl - concuri ing opinion of 
Mr. rustice Harlan made pi in that t ie State proce­
dure was invalid because gar islnnent involves the im- 
med be taking of a AArage e -ner’s “ property” ; and 
the < ourt stated ( p. 339) th: althoug i “ [s]uch sum-
man procedure may well i -et the i -quirements of



29

due process in extraordinary sit tations,”  0 garnish­
ment 1>y a wage earner’s creditor vas not such a situ­
ation. In the present case, howe er— as in cases in­
volving government employment, licenses, and other 
benefits commonly dealt with thix ugh the ; dministra- 
tive proc >ss-—the recipients have 10 prope -ty (in the 
classic se ise) of which the gove unent is seeking to 
deprive them. In  cases involvin the question what 
procedui 1 due process required in this • property 
h'ss com *xt, this Court has sev ral time indicated 
tliai the mswer permissibly vari s with tl e proceed­
ing and private interests concert d.11 E.g., Hannah v.

10 The cl iss of “extraordinary situat ns-’ is large enough to 
include sui unary actions to protect goc 'rrunent r< enues. Phil­
lips v. Commissioner, 28“ TT.S. 589, 591 597. Thus even should 
this Court conclude that this case does all within the teaching 
of hniadach, it does not follow that h< rings prio to termina­
tion or reduction are constitutionally required, ft would be 
nece ssary to assess whether in the we are conic" t any threat 
to gtvernn cut revenues posed by a requ cement cl >rior hearing 
is so great. s to justify summary procedu e.

11 Statute ty solutions to the problem 1 ive not bet > uniform. A  
licet se to use part, of the limited broa cast sped um may not 
usu; lly be suspended before notice am hearing, ' TJ.S.C. 312 
(c) and see, 5 U.S.C. (Supp. IV ) 1 -8(c) : but there is ex- 
plic t statutory authority to suspend b< .efits unde the Federal 
Old Age, Survivors, and Disability Ins ranee Ben tits Program 
bef< re. hea •ing, 42 U.S.C. 403(h )(3 ), f it appeti 'S that there 
is a dangei of overpayments being mac , and fede al employees 
are regularly suspended from their en, >loyment i advance of 
the hearings to which they are entitled under the Civil Service 
Act. As in Phillipy supra, n. 10, the <1 ect involv ment of gov­
ern! Lent revenues in the latter cases 5 iay justify a procedure 
more summary than would be appropri te where ; benefit with­
out cost t< the government, such as a roadcast I -ense, is con­
cern id. Si lilarly, in case of “jeopard; federal axes may be 
assessed a d collected without any op] ntunity f< r prior hear­
ing. Inten il Revenue Code, 26 U.S.C. >1-68(14.



30

Larc'ne, 363 U.S. 420, 440; Cafeteria \ 
I'Jlror. 307 U.S. 886, 894-895.

Th>* present statistics show that sub- 
ineligible tlian eligible individuals reqi 
ings’ V 1' Moreover, it p la in tiff prevail, 
her a id proportion of ineligible indO 
mg f; ir hearings might increase. Such 
retiec either a substantial degree of usi 
iiig”  requests as a means of proiongi; 
ments for individuals who clearly are 
hie, or, as the appellant in No. 62 suggv 
pp. 14-17, tl'.e efficient fuuct oning ot 
new | re-hearing notice-and-cu nferenee 
eithe. case, the argument for -fa ir lie; 
terrni nation or reduction of benefits 
less s rung than it is now.

12 While a substantial proportion of ‘‘ fan- 
lie past led to reversal or modi ieation <>j 
leterminations, only a small propo tion of U 
a reqi cst.s for such hearings. Tlui forms ■ i 
fornia to the National Center for Social St a 
nartmi nt of Health, Education an Welfare 
leriod July 1, 1908. to March .'ill, 1 09— durim 
‘‘or Appellants in No. 14 states tl; -re were 
■oncer; ing termination of assist an e, p. lU, 
i total of 163,035 terminations of r -sistance n 
•ity Act programs. O f these, 98,98- represent 
issistanca under the Aid for Famil -s with I )« 
irogram, and the remainder, the a rious adu

Statistics collected in the annual -eports of 
Nationwide Quality Control Svstei on Publi 
V f o r  t'w year April 1, 1907, > March
ocal a pencies in the nation as a w iole incorr 
ermin i-ted benefits in 5.6 percent >f AFFK 
if adi t program cases, and under] lid benefit 
VFTX and 9 percent of adult p igram cas 
hand, .0 percent of A F D C  cases i id 1.7 per-

o r k e r s  v. 31 c -

tantially more 
est " fa ir  hear- 
both the num- 
duals request- 
chaugo might 
of “ fair hear- 
g benefit pay-
0 longer eligi- 
is in bis brief, 
the relatively 
ieclmiques. fit 
ring”  prior to 
could be even

earing-s’’ have in 
adverse agency

1 niinal ions rc nit 
hm if ted by ( ali- 
istics of the De- 
how that in the 
which the- Uriel' 
"fair hearings”

. 12— there wore 
>der Social Secn- 
d termination of 
icndent Ohihlren 
jirograms. 

i he Department's 
Assistance Case 

. 1908, show that 
-ct 1 v withheld or 
and 4.0 percent 
in II percent of 

■s. On the other 
-nt of adult pro-



31

The ewrently applicable Federal 
strike the oalance fairly in the light of 
ently known. The individual lias adv; 
termination or reduction of: assistance 
nity for conference. Such con Terence p 
formal, expeditious procedure available 
ents with respect to whom the agency 
ing termination or reduction of paymei 
is thus inform; 1 of the proposed agency 
vance and can get an explanation; i f  lie 
the content plat d action is incorrect, it < 
The emphasis is on notice, communicate 
ing out those cases where the agency < 
shown it is making a mistake, or the r< 
given informal ion so that he understa 
ineligible. The risk of incorrect St; 
thereby reduced. I f  tire State agency tl 
that the term nation or reduction is 
claimant s afforded opportunity foi 
hearing, which is to be conducted exj 
the minority o f cast's where the agenc 
out to be incorrect, corrective payments- 

The proct-du,-e tlms provides an expo< 
for handling a large volume of cases 
gives all welfare recipients the opportui

gram. c;ises involved incorrect determinations 
were eligibh, and 10.4 percent of AFDO  and 
adult p.'ogr; m recipients were being overpaid 
These (ignn ■> are compiled by State quality 
the basis o! a controlled sampling of local 
and are en irelj7 independent of “ fair hear 
These latter figures, however, cover total tern 
do not know in bow many instances hearing

requiren mts
what is pres- 
ice noth of 
tnd opportu- 
ivides an in­
to all reoipi- 
contem >lat- 

ts. Ever one 
action i. ad- 
an show that 
n l)o ave fed. 
i, and screen- 
ii readil ' be 
i])ient c;i i be 
Is why i e is 
e action; is 
n dotern ines 
justified, the 
a trial- ype 
ditiously 111 
action 1 urns 
are mad . 
tious m< hod 
i a way hat 
ty to exi lain

that rocij ients 
10.1 percc I of 
iring this ime. 
•ntrol uni ■; on 
ency case files 
g” prorr ires, 
at ions, ;e: we
vere ra w  ;ted.



32

to tlie State agency in advance why their payments 
should not be termin; ted or curtailed, with the assur­
ance o f a trial-type bearing I efore such State action 
becomes final. I t  satisfies both the statutory and con­
stitutional command op fair hearing.

]’.. I P  T H E  COl'JtT WERE TO t ’ONOIAIDE I'll AT TH E  1’EENENT PRACTICE 

IS INADEQUATE, i t  s n o t  I) NOT r e q u ir e  A P R E L IM IN A R Y  T R IA L -  

T Y P E  HEARING  IN' EVERY \8E UEPOR PAYM EN TS (!A '  P,E IN IT IA L L Y  

TERM INATED  OR REDUCE

A principal inten t o f tin United States in this 
case is to avoid a pi -.liberation of hearings and pro- 
cedures which would substant ally burden the admin­
istration of the Soci il Security Act without confer­
ring material benefii on eligi >le recipients. The dis­
trict court in No. 62, owever, failed to adopt this per­
spective. I pon colic1 ding that due process requires 
more substantial pro< edings ] rior to termination, the 
court’s solution was o enlarge and expand the ad­
vance notice and info mal conference procedure which 
is required before tin agency edetermines eligibility. 
By adding the vaiio s procot ural elements which it 
concluded are requii 1 by du * process ai that early 
stage, the court mad two sig lificant changes in the 
overall procedure.

First, the conferen ; is no h ngor a conference; it is 
something close to a ull-dres hearing at which wit­
nesses must appear, ; id the it apient lias the right to 
question them, etc. ideed, t ie court stated: “ W e 
realize that these req rement- will duplicate the ‘fair 
hearing’ post-termina ion ]iroc ‘dure to some extent.”  
Goldberg App. 385a. ! bus, the e may be two bearings 
in each case, the pre- erminat >n and the post-termi­



nation hearing. This seems unnecessary and potential­
ly expensive. Most likely, the 30-day time period now 
provided for the advance notice and conference pro­
cedure will be inadequate in many cases, so that addi­
tional time will be needed before the agency can 
determine whether the recipient has become im ligible. 
Moreover, the procedure may often rove inadequate 
to handle cases involving complex I dual sit ations. 
Finally, it might so burden the agen y staff a; to add 
further del; ys before these matters can be finally 
resolved—a result; as detrimental to welfare re ipients 
as to the agency. Such a procedure es not a] pear to 
be conducive to the proper and effi< *nt oper; tion o f 
the welfare program.

The second, and closely related, difficult;, arises 
from the requirement that assistance be conti iued in 
all cases until the agency’s initia determ nation, 
which is made after the first confer nee hear ng and 
which, because of the new procedure required for all 
cases, necessarily will further dele; the adn nistra- 
tive process at a point where it is ; ready o\ 'rburd- 
ened and dilatory. The added expen e to the federal 
am; State agencies could be consider; le.

The seriously adverse effect o f tin leeision ; clow in 
No. 62 is compounded by ils applic; on even o cases 
where ihe claimant challenges only le provisions of 
law or settled agency policy. A t leas; me of th appel­
lees in that case, Mrs. Altagraeia G man, ap tears to 
present only' such an issue in her con daint. M \s. Guz­
man's VFDG payments are alleged i be in it minent 
danger of t rmuiation because she 'fuses t< assign 
to New Yoi k welfare authorities In right o action



34

!

against her husband for non-support 
once with an established policy, 
threaten to terminate her benefits. She 
the tacts nor the policy’s applicabili 
simply asserts that the policy ‘ ‘has no 
and indeed is contrary to th • statutes 
State ” Goldberg App. 25a. ' lie court 
exclu !o her from the relief g anted.1:1

I f  ‘very individual subject d as am  
to tin adverse impact of a ge oral adn 
icy could require that his bet ‘fits be - 
ing ; trial-type hearing on the law I' 
policy, this could almost par lyzc the 
of t l i1 Act and would add immeasural 
The ( Ifect of requiring trial-1 vpe heari 
eases would be that persons a ho could 
no vindication from the pr cedures

33 Its failure to do so may luo ■ been ina 
]>oint in its opinion tlie court note ! that "W> 
with the issue whether procedural < ue process 
to ora argument on a matter of i\v. See. [' 
TT.S. 265, 276 * * *. ft. is true tin [ I forr/an 
‘198 TT.S. T68, 481] contained the c ‘turn that 
lie oral or written,’ * * * but w< do not fa 
t hat in this case there is no const it itional rig 
deuce, as opposed to argument, in ] Tson." Go 
Hie t. ct that one of the plaintiffs i fact did 
duce arguments, not evidence, appe: ‘S not to b 
to in t ie proceedings below.

14 U  der the existing H E W  regi at ions, an 
i ipienf of assistance can obtain a fair heari 
grieves by * * * agency action affe ting bis r 
lion oi assistance, or by agency pol y as it alii 
Hand! aik, § 6200(b). We are info- led that i 
this regulation is to provide “f; • hearing 
which, like Mrs. Guzman's, raise o !y issues <

uid, in accord- 
hey therefore 
denies neither 
y to her, but 
mpport at l;tw 
of New Y ork  

below did ,ot

tier o f course 
nistrative poi- 
utiimed peud- 
iluess o f that 
'.dministratioii 
!y to its costs, 
igs in all such 
dope to obtain 
bus invoked 14

ivertent. At. one 
do not. deal hero 
' •quires the right, 

v. W JR , .-‘17
. I ’nlt-rd States,

| ajrgmnent may 
ke that to mean 
1 to present, evi- 
i'eerg App. 98La. 
visli only to p-o- 
ve been adverted

claimant or re- 
ig” if lie is “ag- 
eipt or termina­
ls his s'ituat io.i."
.' practice under 

on complaints 
f general policy.



35

because they are ineligible under the policy el 
could continue to receive benefits until the 
was held. The cost of this delay would have to i 
by the community as a whole and, i f  total tun­
able for benefit purposes were limited, by othe 
cuts under the program in the form of redue< 
levels. Indeed, i f  prior “ fair hearings” were 
for each individual adversely affected by a 
P(fiicy change, they would be requh >d wher- 
ciency of funds required across-the )oard re­
in benefit levels.

V trial-type hearing is not requii d befor< 
general rule is applied to a part -ular ind 
unless there are demonstrable sp< -ial reas 
different action in the individual ca e. Unite- 
v. Stover Broadcasting Co., 3f>l T S. 192; 
Power Commission v. Texaco, 377 LT.S. 33: 
Electronics Corp. v. Fcdt a! Conn, /(nicotic, 
mission, 39-! F. 2d (120, (!2(i (C.A. I( . “ When 
of conduct applies to more than a few pe-n 
impracticable that every one should 1 ve a di 
in its adoption. * * * There1 must 1 a limit 
vidual argument in such matters ' govern 
to go on,” Bi-Metallic Investment ( . v. Sfai 
of  Equalization of Colorado, 239 U h 441, 4 
Guzman does not allege any special -ireumst: 
her case; she challenges only the neral rn

dlenged 
nearing 
;e borne 
:s avaii- 
' reel pi- 
benefit 
■quired 
general 
insuffi- 
uctions

such a 
i vidual, 
ns for 
States 

federal 
Conley 
; Com­
ix rule 

!e it is 
t voice 
o indi- 
lent is 
Board 

5. Mrs. 
nces in



36

CONCLUSION

Tlie judgment of the district court in No. 14 should 
be affirmed. The judgment of the district court in No. 
62 should be modified to eliminate the conditions im­
posed by the court as to the first procedure permitted 
by the New York statute and as thus modified, should 
be a firmed.

R ' 'spectfully subu fitted.

September 1969.

E rwin N Gris wo in,
Solii lor General. 

W illiam D. R uck eshaus,
As sis mt Attn I iey General. 

R obert A Zener,
Stephen l . F elso ,

A Homeys.

U.S. OOVERNMEN NTINS OFHCF :