MR. JUSTICE DOUGLAS, dissenting.
While I join MR. JUSTICE BRENNAN who reaches the merits, I add a word about the unwisdom of the policy pursued by the Court.
[p210] A three-judge district court held § 225 of the Social Security Act, 42 U.S.C. § 425, unconstitutional, insofar as it purported to authorize the Secretary of Health, Education, and Welfare to suspend the payment of social security disability benefits without giving prior notice and "an opportunity to participate" to the disability beneficiary. 321 F. Supp. 383, 386. The court remanded the cause to the Secretary for the formulation of new procedures consistent with its opinion. Judge Matthews, troubled by an implication in the majority's opinion that participation merely by way of written submissions might satisfy the majority's notions of due process, dissented "from so much of the opinion as seems to suggest that the procedural requirements of due process may be satisfied with something less than the 'opportunity' [to participate] specified in [Goldberg v. Kelly, 397 U.S. 254]." Id., at 388. We noted probable jurisdiction in these cross-appeals to evaluate the opinion below in light of Goldberg. 404 U.S. 819.
Now, however, it is suggested that the Secretary has so far complied with the instructions of the District Court to formulate new procedures that we should remand the cases to the District Court for further proceedings in light of these new requirements. Such a course, I submit, would be a perversion of the philosophy of due process that we expressed in Goldberg.
Judge Matthews, below, captured the essence of Goldberg in her brief partial dissent:
"In Goldberg the Supreme Court held that a welfare recipient, in addition to timely and adequate notice detailing the reasons for a proposed termination of benefits, must have 'an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.'" 321 F. Supp., at 387-388.
[p211] It cannot seriously be argued that the Secretary's "new rules" comport with Goldberg. They may cure the notice defect, but they make no provision whatsoever for the presentation of oral testimony or the confrontation of witnesses.[1] We noted probable jurisdiction, I thought, to determine if the difference between "welfare" payments and "disability" payments is sufficient to say that one's Fifth Amendment right to be hard may be satisfied by an opportunity to make written submissions in the latter case, although not in the former.[2] We heard oral argument on this basis. Because of the inadequacy of the new rules, in light of Goldberg, the question will remain regardless of the outcome of a remand.
I think it unseemly, needlessly to shuttle any litigant, especially an indigent, back and forth from court to court, hoping that his exhaustion of newly created remedies will somehow or other make his problem disappear and relieve us of an obligation. No concession promising justice to the claimants has been made. The issue of due process [p212] was properly raised and is here for decision; and all the requirements of case or controversy within the meaning of Art. III of the Constitution have been satisfied.
Notes
edit- ↑ The new provisions were issued as amendments to the Disability Insurance State Manual (DISM). DISM § 265.1D now requires state agencies to inform a beneficiary of a proposed suspension of benefits, and the reasons therefor, before it formally requests the Bureau of Disability Insurance to authorize the suspension. The beneficiary must be given an opportunity to submit rebuttal evidence. Ibid. But the "opportunity" contemplated by this section, and the similar provisions respecting cessation of benefits (DISM § 353.6A), encompass only written submissions.
- ↑ This cause, however, like Goldberg, "presents no question requiring our determination whether due process requires only an opportunity for written submission, or an opportunity both for written submission and oral argument, where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues. 397 U.S., at 268 n. 15. Disability cases, like welfare cases, invariably turn on difficult and complex resolutions of hotly disputed factual questions. See, e.g., Underwood v. Ribicoff, 298 F. 2d 850, 851 (CA4 1962).