BAILEY v. WEINBERGER 419 U.S. 953 (1974)

Rehearing Denied Dec. 9, 1974.

See 419 U.S. 1061 .

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice WHITE, joined by Mr. Justice DOUGLAS and Mr. Justice STEWART, dissenting.

The Ninth Circuit Court of Appeals, adhering to its previous decisions in Stuckey v. Weinberger, 488 F.2d 904 (CA9 1973), en banc, and Wallace v. Weinberger, 488 F.2d 606 (CA9 1973), en banc, cert. denied, 417 U.S. 913 , 41 L.ed.2d 217 (1974), held in this case that the decision of the Secretary of HEW on a request to reopen a previous denial on the merits of a claim for benefits is so far committed to agency discretion by the provisions of 205(h) of the Social Security Act, Title 42 U.S.C. 405(h), that review of that decision is not available pursuant to the Administrative Procedure Act. See Title 5 U.S.C. 701(a)(2). This holding is squarely in conflict with the holdings of three other Circuits in Cappadora v. Celebrezze, 356 F.2d 1 (CA2 1966); Davis v. Richardson, 460 F.2d 772 (CA3 1972); and Maddox v. Richardson, 464 F.2d 617 (CA6 1972). It is a prime function of this Court's certiorari jurisdiction to resolve precisely the kind of conflict here presented. Rule 19(1)(b), Rules of the Supreme Court. Perhaps the state of our docket will not permit us to resolve all disagreements between courts of appeals, or between federal and state courts, and perhaps we must tolerate the [419 U.S. 953 , 954]   fact that in some instances enforcement of federal law in one area of the country differs from its enforcement in another. Hopefully, these situations will be few and far between. I would grant certiorari in this case.

Mr. Justice DOUGLAS, dissenting.

While I have joined Mr. Justice WHITE's dissent, I should add that the number of cases we take to review on the merits is well below the tolerable limit and that this case presents one of the most pressing problems on the modern scene. For the extent to which the evergrowing federal bureaucracy uses 'discretion' to mask irresponsible action that evades review seems to me to be eroding basic rights of the citizen.