LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER V. NELLEY LIDY, JR.

   No. 90-1344

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Reply Brief For Petitioner

   1. Respondent misperceives the nature of the decision below.  The
court of appeals did not hold, as respondent would now contend (Br. in
Opp. 7-8), that examination of the reporting physician in this case
was justified by the respondent's claimed "need" for such evidence.
To the contrary, the court of appeals agreed with petitioner and with
the district court (Pet. App. 7a-8a) that respondent had "failed to
make" (id. at 4a) a showing that additional examination of the
reporting physician was "reasonably necessary for the full
presentation of the case" (ibid. (quoting 20 C.F.R. 404.950(d)).  What
the court of appeals held was that, notwithstanding the absence of any
showing of a reasonable need for such evidence, respondent had an
"absolute right" to subpoena and examine the reporting physician under
the Due Process Clause (ibid.).  It is this holding of an "absolute
right" to subpoena witnesses at agency disability hearings that
creates the conflict among the courts of appeals and that imposes the
enormous administrative burden that is described in the petition (Pet.
11).

   2. Respondent fails in his attempt to show (Br. in Opp. 11-14) that
the decision in this case creates no conflict among the courts of
appeals.

   a. Respondent errs in contending (id. at 13) that Taylor v.
Weinberger, 528 F.2d 1153 (4th Cir. 1975), does not conflict with the
decision in this case.  /1/ The Fourth Circuit held in Taylor that the
denial of an administrative subpoena "may be reversed only for abuse
of discretion." Id. at 1156.  The court in Taylor further held that an
abuse of discretion would exist where the agency had denied the
subpoena after determining that the requested evidence would "affect
its decision" (ibid.).  In the present case, by contrast, the Fifth
Circuit held that respondent has an "absolute right" to a subpoena,
even though he had "failed to make" a showing that the evidence he
sought was "reasonably necessary for the full presentation of the
case" (Pet. App. 4a (quoting 20 C.F.R. 404.950(d)).

   b. Respondent also errs in claiming (Br. in Opp. 12) that Souch v.
Califano, 599 F.2d 577 (4th Cir. 1979), is not in conflict with the
decision in this case.  /2/ The Fourth Circuit held in Souch that a
claimant's "right to subpoena" reporting physicians under Richardson
v. Perales, 402 U.S. 389 (1971), is the "right to request issuance of
a subpoena -- not (the) absolute right to have a subpoena issued upon
request." 599 F.2d at 580 n.5.  Moreover, the "right to request
issuance of a subpoena" referred to in Souch is the right to request a
subpoena under the regulatory standard that requires a showing that
the evidence sought is "reasonably necessary for the full presentation
of a case." Ibid. (quoting 20 C.F.R. 404.926 (1970)).  The holding in
Souch that there is no "absolute right" to a subpoena plainly
conflicts with the holding of the Fifth Circuit in this case.

   c. Finally, respondent errs in contending (Br. in Opp. 11) that
Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1988), is not in conflict with
the decision in this case.  The Third Circuit held in Wallace that
cross-examination of a reporting physician in a Social Security Act
disability benefits case is to be allowed "when such cross-examination
is necessary to the full presentation of the case." Id. at 193.  This
holding of Wallace, which directly incorporates the regulatory
standards for the issuance of subpoenas, is obviously in conflict with
the holding of the Fifth Circuit in this case that respondent has an
"absolute right" to a subpoena even though he "failed to make" a
showing that the evidence he sought was "reasonably necessary for the
full presentation of the case" (Pet. App. 4a (quoting 20 C.F.R.
404.950(d)).

   For these reasons and the reasons stated in the petition, the
petition for a writ of certiorari should be granted.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   MAY 1991

   /1/ Respondent erroneously states that Taylor "is not a disability
case" (Br. in Opp. 13).  The Taylor court correctly stated that the
case involved the denial of a claim for "disability benefits." 528
F.2d at 1154.

   /2/ Souch involved the right to subpoena reporting physicians at a
black lung disease disability hearing under the Federal Coal Mine
Health and Safety Act.  599 F.2d at 577-579.  Respondent erroneously
seeks to distinguish Souch on the theory that, even though the
relevant agency rules governing the issuance of administrative
subpoenas are "almost identical" (Br. in Opp. 12), the underlying
statute in Souch was not the Social Security Act but the Federal Coal
Mine Health and Safety Act.  As the court of appeals concluded in
Souch, this is a distinction without a difference, for the decisions
involving subpoenas for disability benefits hearings under the Social
Security Act were directly applicable.  See 599 F.2d at 580.