Fusari v. Steinberg – Oral Argument – October 15, 1974

Media for Fusari v. Steinberg

Audio Transcription for Opinion Announcement – January 14, 1975 in Fusari v. Steinberg
Audio Transcription for Oral Argument – October 16, 1974 in Fusari v. Steinberg

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Warren E. Burger:

We’ll hear arguments next in 73-848, Fusari against Steinberg.

Mr. Wasik you may proceed whenever you’re ready.

Donald E. Wasik:

Mr. Chief Justice and may it please the Court.

This class action suit concerns the adequacy of Connecticut’s administrative procedures which I used to determine weekly claims for unemployment compensation.

A three-judge District Court had before it two issues.

One, do the Connecticut procedures violate the so-called when due provisions of the Social Security Act and two, do they violate the due process requirements of the Fourteenth Amendment.

The lower court found that there was no statutory violation but did rule that there was a constitutional violation.

Since the District Court found no statutory violation and because no appeal was taken from that decision by the claimants, this issue is not before this Court.

Therefore the only statement on the merits of this issue which has been raised in my opponent’s brief is that the lower court and the Court in the Torres, the decisions were correct in ruling that where a decision is made, that the claimant is not eligible for benefits, obviously then no benefits are due and therefore the when due provision cannot be violated.

The issues that are here are one, whether Connecticut’s administrative hearing which employs a seated interview system meets due process requirements.

And two, whether the District Court in determining this first issue erred in receiving in considering evidence which relates to the appeal period subsequent to the hearing in question.

Facts generally here concern individuals who have filed an initial application for benefits.

They have satisfied the department that they have registered for work with the employment service and that they have met the wage credits requirement of the statute.

In other words they have enough earned wages from a former employer prior to their unemployment.

These people then go on a bi-weekly basis to the local office where they submit a form showing where they have gone to seek work during the past two weeks.

Now although they go every two weeks, statutes require a determination each week as to eligibility.

When they go to this interviewer, the interviewer usually will ask some questions such as “did you earn any wages during this two-week period?

Were you able to work during this period?”

He will look at the form.

If it seems as though he has made reasonable efforts during that week, he will receive his check.

If a question is raised by what the claimant says or what is in that form, the claimant is then referred to another interviewer behind the counter.

This is the fact-finding examiner who will then go into greater detail in discussing with the claimant what efforts he has made to seek work during those two weeks just ended.

Now, that basically is the situation that is before us.

And as you can see, this situation is far different from that in Goldberg against Kelly.

The claimant here actually presents his case to the decision maker.

This was the “fatal flaw” which was found in the Goldberg case.

He is heard.

In the welfare cases, generally the recipient only has to establish need at the initial proceedings when he first applies.

He then proceeds to be paid unless and until his status changes.

In unemployment compensation cases, not only is there no needs test but the statutes providing for these benefits also require an affirmative duty on the part of each claimant to each week qualify for benefits.

Audio Transcription for Oral Argument – October 16, 1974 in Fusari v. Steinberg

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Donald E. Wasik:

Now, would our Connecticut’s procedures, which we submit meet due process requirements?

First, what do we mean by due process?

We submit the essence of due process is fairness, considering all the relevant factors, are Connecticut’s procedures fair?

Let us see.

William H. Rehnquist:

A moment ago Mr. Wasik, you said under Connecticut law, the claimant must each week qualify for the benefits.

Do you mean by that that each week he has to show that he has made some effort to obtain employment?

Donald E. Wasik:

Exactly that Your Honor.

In Connecticut the claimant has notice of the interview.

When he first applies, he is given a booklet that is entitled “your rights and responsibilities,” under the Connecticut Unemployment Compensation Law.

As the name implies, the claimant has responsibilities.

Not the first of which is to read this booklet which not only tells him what his obligations are but gives him helpful information as to how he can meet these obligations.

More importantly, these claimants are experienced.

All of the named claimants in this case receive benefits for varying periods of time.

Thurgood Marshall:

But this year, he is given no notice of what’s to be discussed, right?

Donald E. Wasik:

No Your Honor because the claimant — except in the booklet itself, he knows that he has to show where and when he went to seek work.

Thurgood Marshall:

But no, they don’t tell him that we know you didn’t do it or —

Donald E. Wasik:

No, we can’t, we don’t know ourselves until he appears.

Thurgood Marshall:

Oh I see.

Harry A. Blackmun:

But do you return, does the office each week give him referrals?

Donald E. Wasik:

No, only we try to, that that’s — well I won’t say it’s rare.

This is why he registers with the employment service.

The employment service tries to establish referrals and when we learn that this man might be suited for this job and there is an opening, he is referred.

Harry A. Blackmun:

And of course if he doesn’t take it, then he has to come back on and justify his refusal to take, doesn’t he?

Donald E. Wasik:

Yes Your Honor but —

Harry A. Blackmun:

In addition to that, are you telling us that he has to — where he’s not had referrals or even if he has, he’s got to indicate whether he has tried and how he’s tried to find a job in the previous week.

Donald E. Wasik:

Yes.

Thurgood Marshall:

And he’s not allowed to go outside the record at all.

Is he allowed to bring anybody in as a witness?

Donald E. Wasik:

He can bring anybody he wants as a witness, Your Honor.

Thurgood Marshall:

How does he know whether he can bring the witness for?

Audio Transcription for Oral Argument – October 16, 1974 in Fusari v. Steinberg

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Donald E. Wasik:

Well Your Honor, if the claimant has been receiving benefits, he already by his experience, knows what he must do to collect those benefits, therefore, during that two-week period, if he knows that instead of going out looking for a job for three days, he was out fishing, he knows unless he gets off his button and looks those last two days, there’s going to be a question as to what efforts he made.

Thurgood Marshall:

There is, if he doesn’t get a job, he knows he’s going in there until somebody going to (Inaudible).

Donald E. Wasik:

Not necessarily but certainly he’s going to be questioned as to what efforts he’s made.

Thurgood Marshall:

But he doesn’t know what information is there.

Donald E. Wasik:

No, but we have no information.

Thurgood Marshall:

And was he charged with anything?

Donald E. Wasik:

There are no charges made.

Thurgood Marshall:

But why does he have to come in?

Donald E. Wasik:

He has the burden of establishing that he did —

Thurgood Marshall:

That’s right, he has the burden.

Donald E. Wasik:

That he did search for work and that he was not restricting his availability to work.

Thurgood Marshall:

So he’s guilty or not —

Donald E. Wasik:

No.

Thurgood Marshall:

Just a moment.

Donald E. Wasik:

Excuse me Your Honor, I’m sorry.

Thurgood Marshall:

He’s guilty of not having found work.

Warren E. Burger:

Perhaps maybe that it would be to say he is guilty if you can use that term of not establishing his eligibility.

Donald E. Wasik:

Yes, the word guilty has a connotation which is not applicable in this case, I submit Your Honor.

Thurgood Marshall:

Well give me a better word.

Donald E. Wasik:

He has failed to meet his responsibilities as outlined by the statutes and by the booklet he receives, Your Honor.

Thurgood Marshall:

And he failed to meet the eligibility requirements to obtain the relief?

Donald E. Wasik:

That’s right.

Thurgood Marshall:

He starts off with that.

Donald E. Wasik:

No, he starts off by showing that he’s registered for work.

Thurgood Marshall:

Why does he come in there, because he hadn’t found work?

Donald E. Wasik:

Yes but he also must show that he has looked for work.

Thurgood Marshall:

But he comes in there charged with not having found work.

Donald E. Wasik:

No, excuse me Your Honor, he’s not charged with not having found work.

He may be charged, if I may use that term and I don’t like it.

Thurgood Marshall:

Well give me a better word than charge.

Audio Transcription for Oral Argument – October 16, 1974 in Fusari v. Steinberg

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Donald E. Wasik:

It is pointed out to him that the efforts that he made to seek work are not reasonable, there’s quite a difference Your Honor.

Thurgood Marshall:

Where is that pointed out to?

Donald E. Wasik:

The booklet itself.

He must make reasonable efforts to find work.

Thurgood Marshall:

And he as an ordinary layman knows what reasonable is?

Donald E. Wasik:

Well it’s defined in the booklet Your Honor, for his benefit.

Thurgood Marshall:

Do you have any trouble with the word reasonable?

Don’t we have trouble with it about eight or 10 times a week?

Donald E. Wasik:

But this is a standard that’s applied throughout the law, Your Honor.

Thurgood Marshall:

Yes, I know but this man comes in, automatically, he has to explain why?

Donald E. Wasik:

No he doesn’t have to explain why, Your Honor.

If he has —

Thurgood Marshall:

He comes in, he says nothing, what happens?

Donald E. Wasik:

He has a form which shows where he went to seek work.

Thurgood Marshall:

He comes in and says nothing, what happens?

Donald E. Wasik:

They will ask him, where did you go to look for work?

Thurgood Marshall:

And he doesn’t answer, what happens?

Donald E. Wasik:

If he fails to answer, he will be denied benefits.

The statutes and the booklet tell him he must make efforts.

And if he doesn’t communicate those efforts to us, how can we pay him benefits?

This is a trust fund that the administrator as a fiduciary must administer with reasonable diligence.

Warren E. Burger:

If this is — are you telling us that this is in effect to burden of proof which he must meet periodically just as he must meet it the first time that he comes in?

Donald E. Wasik:

Yes, Your Honor, say burden of proof but certainly that’s what it amounts to.

The burden is on him to show eligibility, the statutes require this.

Warren E. Burger:

Well if he came on the first day and said I want some benefits, but refused to answer any questions, then he wouldn’t get any benefits, as I take it.

Donald E. Wasik:

No, he would not have satisfied the basic requirement of giving us information as to whether or not he is entitled to benefits.

Harry A. Blackmun:

Of course each and all of these people have qualified initially, haven’t they?

Donald E. Wasik:

Yes, in fact, the plaintiff Steinberg collected for 26 consecutive weeks and he was advised at this seated interview, more than one seated interview that he had better improved his efforts to find work.

Don’t restrict yourself to making contacts with the local union hawk, but he did and finally he was denied benefits.

Sure because he didn’t meet the — he didn’t heed the advice given to him that he has to make efforts, reasonable efforts.

Audio Transcription for Oral Argument – October 16, 1974 in Fusari v. Steinberg

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Potter Stewart:

Just as somewhere in here in the brief, there is some time ago and then I think suggested and then denied that there’s some sort of a rule of thumb that if a person is made to —

Donald E. Wasik:

Yes.

Potter Stewart:

Two or three or four?

Donald E. Wasik:

There is a rule of thumb, it’s not followed categorically.

Again, it prints, the lower court says, give them in advance a certain number of places to go.

Well this just wouldn’t work out.

If you required somebody who is looking for a waiter’s job to go to 10 places, this might be reasonable.

But a professor of some university was out of a job, there are just so many places he can go and you can’t require him to go to 10 places.

What is reasonable for the individual?

Each case has to be determined on its own merits.

Potter Stewart:

But there is a rule of thumb —

Donald E. Wasik:

Yes for the —

Potter Stewart:

For the ordinary case.

Donald E. Wasik:

For the ordinary case.

Potter Stewart:

And what is that, how many?

Donald E. Wasik:

If they — during this period when they’re using this form, the examiners at the counter, if they went through three places in one week, for a each week then they were given their check, there were no questions raised.

Potter Stewart:

And was that pretty well known?

Donald E. Wasik:

I think it was, Your Honor, I can’t say that everybody, that each examiner knew that.

Potter Stewart:

I mean among the beneficiaries, was it?

Donald E. Wasik:

I can’t speak for what’s in the mind of the beneficiaries but I would —

Potter Stewart:

Well I just wonder if there was —

Donald E. Wasik:

I think —

Potter Stewart:

Common knowledge.

Donald E. Wasik:

I think it was common knowledge that if they — the form had six places for the two week period and if they filled out.

Potter Stewart:

That’s a pretty good indicator.

Donald E. Wasik:

Yes, Your Honor.

We would like to see more lines actually.

Now the claimant does have notice of the issues.

The lower court either deliberately ignored or completely overlooked the fact that the issue is not known to the department employee until the claimant appears.

The claimant however knows what he’s done regarding his own efforts, whether or not he has restricted himself, his rest to hours or conditions of employment.

Audio Transcription for Oral Argument – October 16, 1974 in Fusari v. Steinberg

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Donald E. Wasik:

Thus he alone knows before the hearing takes place what issues might be raised?

The claimant has an opportunity to present witnesses.

Now in the majority of the cases certainly there simply are no witnesses.

The decision is based on the facts given by the claimant himself.

There were not witnesses in the Steinberg case nor were there any witnesses in any of the cases of the named claimants in this action.

William H. Rehnquist:

When you say witnesses, you mean on the appeal hearing or at the seated interview?

Donald E. Wasik:

At the seated interview, Your Honor.

If the claimant should need a witness, the record shows that he has given time to obtain one.

Potter Stewart:

In other words, if a person had been held for the two-week period, I assume that that under regulations and the statute would excuse him from actively seeking work, it’s true wouldn’t it?

Donald E. Wasik:

No Your Honor, no.

It might — if he were ill for one or two days, then the latter part of that week, he made sufficient efforts, reasonable efforts, he will probably be paid.

But if the man is sick for let’s say four days out of the week, the statute says that he must be physically and mentally able to work.

He would not meet that requirement.

Therefore he would not receive benefits for that week.

The philosophy behind this unemployment compensation —

Potter Stewart:

Is that you have to be ready when you go to work.

Donald E. Wasik:

He has to — right and to look for.

Potter Stewart:

I didn’t note that kind of temporary illness.

Warren E. Burger:

We will pick up at that point in the morning counsel.

Donald E. Wasik:

Thank you.