Catherine Shisslak and Edward J. Shisslak, Etc. v. Elliot L. Richardson, Secretary of Health, Education and Welfare

This appeal is from the District Court’s order dismissing plaintiffs’ complaint which seeks to challenge the constitutionality and enjoin enforcement of section 204(a) and (b) of the Social Security Act, 42 U.S.C. § 404 (a) and (b). Under these provisions of the Act the Secretary of Health, Education and Welfare is authorized, without prior notice or hearing, to recoup from any beneficiary overpayments of insurance benefits paid to such beneficiary or to any beneficiary under the account of the same deceased wage earner. In this case plaintiffs’ deceased father was a wage earner under the Act.

Plaintiffs complained of recoupments of overpayments taken from their respective accounts. The District Court dismissed the complaint and denied plaintiffs’ motion to convene a three-judge panel under 28 U.S.C. §§ 2282 , 2284, because of plaintiffs’ failure to exhaust their administrative remedies under the Act and the regulations promulgated thereunder, which failure the District Court held demonstrated the absence of a substantial federal question.

Subsequent to the entry of the District Court’s order dismissing the complaint, the Secretary prescribed new and modified procedures to be…