As you'll recall from an earlier post, in a recent published opinion--In re Benjamin, 924 F.3d 180 (5th Cir. May 10, 2019)--the Fifth Circuit joined the Ninth Circuit on the less-popular side of an entrenched circuit split regarding the scope of 42 U.S.C. § 405(h). Here's a quick summary of the key holdings.
First, the panel held that 42 U.S.C. § 405(h) bars the exercise of bankruptcy jurisdiction over social security decisions, rejecting "the non-textual approach exemplified by the Eleventh Circuit and join[ing] the Ninth Circuit in applying [§ 405(h)'s] plain meaning.” The recodification canon didn't apply, the panel held, because the statute's plain language demonstrated that Congress intended a change. Second, offering “guidance for the remand," the panel read § 405(h) in conjunction with § 405(b)(1) to limit jurisdiction under § 405(g) to disability decisions: “where an individual is not challenging a decision on a disability determination and therefore not receiving the statutorily-prescribed hearing under subsection (b)(1), his claim never gets channeled under § 405(h)’s second sentence or reviewed by a court under § 405(g).”
The government sought an extension of time to file a petition for rehearing en banc to permit the Solicitor General to weigh in on the case. The Court granted the extension, and the government filed its petition on July 15, 2019. The government's petition presents two questions: 1) Whether the panel erred in determining that the judicial-review provisions of the Social Security Act are limited to disability decisions; and 2) Whether, if the Court were to reach the question, 42 U.S.C. § 405(h) bars the exercise of bankruptcy jurisdiction over social security decisions.
Yesterday, the Court requested a response to the petition and, at the same time, withdrew its prior panel opinion, replacing it with a new one that appears to address the first question presented in the government's petition. The change is dramatic: in contrast to the original panel opinion, which had held that § 405(g) only permits judicial review of disability decisions, the new opinion interprets that provision to sweep much more broadly, permitting review of all Social Security Administration decisions regarding benefits.
Here are the relevant portions of the original and new panel opinions in their full context. First, the original:
And now the new version:
Stay tuned . . . .