Jose M. ANDUJAR, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee , 802 F.2d 404 ( 1986 )

802 F.2d 404

15 Soc.Sec.Rep.Ser. 167, Unempl.Ins.Rep. CCH 17,048
Jose M. ANDUJAR, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health and Human Services,
Defendant-Appellee.

No. 85-3933
Non-Argument Calendar.

United States Court of Appeals,
Eleventh Circuit.

Oct. 17, 1986.

Laura C. Jones, Department of Health & Human Services, Atlanta, Ga., Dorothea Beane, Asst. U.S. Atty., Jacksonville, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

1

Andujar's disability benefits were suspended because he was imprisoned after being convicted of two felonies and was not participating in an approved rehabilitation program. See 42 U.S.C. Sec. 402(x)(1) (Supp. II 1985). He challenges the constitutionality and the application of Sec. 402(x)(1), under which his disability benefits were suspended while he was incarcerated. Section 402(x)(1) suspends benefits to a prisoner

2

for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to his conviction of an offense which constituted a felony under applicable law, unless such individual is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for such individual by a court of law and, as determined by the Secretary, is expected to result in such individual being able to engage in substantial gainful activity upon release and within a reasonable time.

3

We hold that Sec. 402(x)(1) is constitutional--we find no violation of due process, no punishment without trial, and no bill of attainder or ex post facto law. Cf. Fleming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) (holding constitutional the termination of old-age benefits payable to an alien who is deported on certain grounds). Andujar's other claims are also without merit.

4

AFFIRMED.