654 F2d 369 Peppers v. S Schweiker

654 F.2d 369

Wilson H. PEPPERS, Plaintiff-Appellant,
v.
Richard S. SCHWEIKER, Secretary of Health and Human
Services, Defendant-Appellee.

No. 80-7208.

United States Court of Appeals,
Fifth Circuit.

Unit B

Aug. 28, 1981.

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.

ORDER

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1

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.

2

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

3

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.

Fees for Representation

4

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.

5

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.

6

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.

7

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 having free counsel and of the limitations on the fee that counsel could charge as a part of her recovery if any was made.

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8

Benson v. Harris, 638 F.2d at 1356. Because Peppers' notice was identical to Benson's, and because the Benson panel held that notice adequate, we decided not to reconsider our denial of Peppers' claim.

9

Since then, the Clark and Benson decisions have been vacated. See Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981), Benson v. Schweiker, 652 F.2d 906 (5th Cir. 1981). Secretary Schweiker petitioned for rehearing in the Clark case and, ironically, it appeared that Clark actually received a notice that differed from the one quoted (or rather misquoted) in the original briefs of the parties and included in the Clark opinion. While considering the Clark petition for rehearing, the panel further analyzed the notice received by Benson and concluded that, while the notices actually received were not identical, there were no substantial differences between them. Consequently, the panel sua sponte vacated the Benson decision and held that notice inadequate too.

10

As we have demonstrated, the notices received by Benson and Peppers were identical. In the interest of maintaining a consistent jurisprudence, and because our mandate in Peppers has been stayed, we have decided to vacate our prior disposition of Peppers' claim and to rule that he was inadequately notified of his right to have representation by counsel.

11

Furthermore, we hold that Peppers did not waive his right to representation by counsel. It is clear from the record that Peppers agreed to proceed with his hearing even though he was not represented by an attorney. Record, Vol. II, at 31. Nevertheless, the record also reveals that Peppers decided not to retain counsel because he felt he could not afford one. Id. at 30-31. This, coupled with the inadequate notice, convinces us that Peppers was not properly apprised of his options concerning representation at the hearing and that he did not waive his statutory right to representation.

12

Thus we remand for further proceedings. If, after proper notice is given, Peppers opts to proceed without representation, then the hearing must be conducted in a manner consistent with the Clark and Benson opinions.

13

The judgment is VACATED and the claim REMANDED.