Opposition Brief — Bowen v. Polaski
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No.86-1617
MAY 23 8
In The Supreme Court of the Unites States ~~
October Term, 1986 =
-~'
OTIS R. BOWEN, SECRETARY OF HEALTH
AND HUMAN SERVICES,
Petitioner,
VS.
LORRAINE POLASKI, et al.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court Of Appeals
For the Eighth Circuit
RESPONDENT'S BRIEF IN OPPOSITION
SOUTHERN MINNESOTA REGIONAL
LEGAL SERVICES, INC.
Mark A. Bohnhorst
Litigation Coordinator
[Counsel of Record]
700 Minnesota Building
46 East Fourth Street
St. Paul, Minnesota 55101
(612) 228-9823
MID-MINNESOTA LEGAL ASSISTANCE
Laurie Davison
Litigation Director
222 Grain Exchange Building
323 Fourth Avenue South
Minneapolis, Minnesota 55415
(612) 332-1441
Attorney for Respondents
2...
1987-Executcam Companies, Inc., 93 W. Little Canada Rd , St. Paul, MN 55117-4612}483-8793/ 1-800-328-8322
_ —
QUESTION PRESENTED
This case is an Eighth Circuit-wide
class action brought under 42 U.S.C.
§$405(g) to challenge the Secretary's
former policy for evaluating pain in deter-
mining eligibility for disability benefits
under the Social Security Act. On appeal,
the Secretary agreed to follow the law of
the Circuit respecting the evaluation of
pain, and that agreement permitted resolu-
tion of the case as to most members of the
shatekse? class.
The only question presented to the
Court at this stage in the litigation is
whether the court of appeals erred in waiv-
ing the exhaustion requirement for a small
subclass (some ©00-900) of claimants for
i.
disability benefits, when (a) in deter-
mining the eligibility of these (and
other) class members, the Secretary had
applied an unlawful policy which was at
variance with the procedures the Secretary
himself should apply and which irreparably
injured the members of the class, and (b)
all such persons afforded relief had live
claims pending at the time the class
claims were filed.
aa.
PARTIES TO THIS PROCEEDING
The scope of the class is much
narrower than that set forth in the
Petition. Pet. II-III. The portion of
the class which retains an interest in the
petition for certiorari excludes (1)
persons whose benefits were terminated,
App. lla (dismissing claims), (2) persons
who have been evaluated subsequently under
lawful standards, App. 25a (persons
decided since July 17, 1984 re-decided
under proper standard), and (3) residents
of Missouri, who are subject to a separate
Suit. App. 55a (excluding members of
other certified class actions). The
portion of the class affected by the
petition for certiorari includes only the
following, App. 54a-55a, 87a:
ose
A. Persons whose applications for
Title II and/or Title XVI disability bene-
fits were denied on medical or medical/
vocational grounds within the following
time periods:
1)
2)
in Minnesota, North Dakota,
South Dakota and NebraskKa,
those persons who received
an adverse decision between
January 30, 1984 and July
16,1/ 1984;
in Arkansas, those persons
who received an adverse
decision at the ALJ or
Appeals Council levels be-
tween February 20, 1984,
and July 160, 1984; and
1
_/the court of appeals limited the class
period to July 16, 1984.
iv.
3) in Iowa, those persons who
received an adverse deci-
sion between November 26,
19832/ and July 16,
1984; and
B. Who alleged they were unable to
work in whole or in part because of pain
or other subjective complaints; and
C. Whose claims were not readjudi-
cated subsequent to July 16, 1984.
2/tThe earlier date for Iowa is based on an
earlier-filed state-wide class action.
App. 53a. For those claimants, §$405(g)'s
60-day period extends back an additional
two months.
TABLE OF CONTENTS
Page
Opinions BelOw...cccccccccccccccs sense &
Statement of the Case......... iwevewes 2
A. The District Court Proceedings
as to the Pain I[88UC@..cccccsesss 3
B. The Court of Appeals Proceedings
as to the Pain Issue........... » bl
C. The Class Scope and the Relief... 19
Reasons for Denying Certiorari........ 22
I. Neither the Decision Below nor
the Record Raises the Question
the Petition PresentsS.......ccee+ 24
II. There is no Conflict Between
the Court of Appeals' Ruling
Below and this Court's Decision
in Bowen v. City of New York.... 29
A. This Court's Decision in City of
"4 PS PPETT Teer eT eee re ee.
B. The Court “£ Appeals' Inter-
pretation of §405(g) was Identical
to City Of Mew YOrRK. .ccccesesese IF
C. The Court of Appeals' Waiver of
Exhaustion was Entirely Consistent
With City of New York........... 39
vi.
Page
D. The Scope of Relief Ordered Below
Was Entirely Consistent With City
of New Re hppa ig oe ed eines ee ene 47
III. There is no "Trend" of Decisions
That is Undermining the Integrity
of the Exhaustion Requirement in
Social Security Cases........... 52
COMGLUBLORs ci ccccscccwctasccessicsssces
Respondents’ Appendix
Appendix A (court of appeals order
GeGOG BURT s a bc) 60-48 woe bcseasbsciavcia 220
Appendix B (affidavit of Jean Hall
Hinckley dated May 18, 1984, paragraphs
Rg BOp BRU WE SE oho 66 eee F646 EES 6ra
TABLE OF AUTHORITIES
Page
Cases:
Basinger v. Heckler, 735 F.2d 1116
(OE REG BOE P se edb ab beseesedeseecseon 41-42
Bowen v. City of New York, No. 84-
1923 (S. Ct. June 2, 1986)..........passim
City of New York v. Heckler, 742
F.2d /29 (2nd Cir. 1984)..... Seeseesconne 16
vii.
Doran v. Salem Inn, Inc., 422 U.S.
Dr Chie cae 0 o6 66556808688 0060R 06060068 50
Hironymous v. Bowen, 800 F.2d 888
ROEM Cif. LFESJcccccvcccsccccccsecescases 54
Hyatt v. Heckler, 807 F.2d 376 (4th
CAG. LHS} ccccccccccscesccsesccsessces 21,54
Knight v. Bowen, No. 82-892(k)
(D.C. Mass. November 24, 1986).......... 54
Layton v. Heckler, 726 F.2d 440
PCM Cife BIOS} cccccccesccscesssceece 40,41
Lopez v. Heckler, Civ. No. 83-0698
ii GiLeDshn se 6-0.060 6560605204846 060000.8 21
Mathews v. Eldridge, 424 U.S. 319
TAP FOpaccscosssesrssese 16-17,31,34,36,38,39
Mental Health Association of Minnesota
v. Heckler, 720 F.2d 965 (8th Cir.
ee ia. ae take oa ebbe ee ee en 15,16,41,47
Mental Health Association of Minnesota
v. Heckler, 620 F.Supp. 261 (D.
i. oe ee es kk ee Cee ee ase boss 26
Nelson v. Heckler, 712 F.2d 346
Tan cit, BEE cobs te cmeeetoebo sda oe 42,45
Pratt v. Bowen, 642 F.Supp. 883
) ee 5 errr. TT ers Tr eee 54
nS Oe
Salyers v. Secretary, 798 F.2d 3897
COG CAE s Bees ccccsccnssnasee caeteceees 54
Tome v. Schweiker, 724 F.2d 71l
f Os Sr ER er re 41
United States v. Doe, 465 U.S. 605
ol. | 5 Prey eae kesh ee peak hoea we ae besae
Statutes, Regulations, and Rules:
Social Security Act, 42 U.S.C.
(& Supp. III) 301 et seq.:
TES. TE, SE BiG. Gu BOSC eh i nccccsscs passim
Social Security Disability Benefits
Reform Act of lys4, Pub. L. No.
98-460: $3, 98 Stat. 1799, 42 U.S.C.
ee pk | MP Pe rere ye Pree Tee rT ere 27,28
26° U.B.C. SA4LACE)( LIA) occ cccconseseses 2
a0 GiteRe 8
Ds 9 66.65006600660600 6 0 bn 0b Ob ee ESS 4
eS | PP ere ey ee ee eT TT eT TT eee 6
DERG sAGGE ss ccc ewcsadecccctvectaceesesen 4
Social Security Ruling 82-58............ 7
0.8. Gup. CO. Rule 17, 26 U.S.C. cecseocs 23
U.S. Sup. Ct. Rule 21.5, 26 U.S.C. seca 36
ix.
Miscellaneous:
Brief for the Petitioners, Heckler
v. City of New York, No.
84-1923 (S. Ct. June 2, 1986)...... 8,32-33
Newberg on Class Actions, 2nd ed.,
VOL « SZeceescegecseceessesessesesesecsoce 21
S. Stern, E. Gessman, S. Shapiro,
Supreme Court Practice (6th ed. 1986)
Be Pes Web AE CR HAS P ORES RECORD AA OOH A Oe Os 8s 29
H.R. Rep. 98-616, 98th Cong., 2nd
a ee | ee ee eee ee 43
50 Fed. Reg. 35038, 35051, August
a ee os ice 86 0606 6086 OE Ea OOK CK 37
OHA Fact Sheet for Fiscal Year 1984,
at vw, Social Security Administration,
Office of Hearings and Appeals, SSA
Pub. Ho. 10-039, May 1963. cccccccases eeeld
"Table 4.-Disability Determinations and
Appeals, Fiscal Year 1985" in Background
Materials and Data on Programs Within the
Jurisdiction of the Committee on Ways and
Means, Committee on Ways and Means, U.S.
House of Representatives, March 3,
VSO TT TELE Tree eer TT ee ee ree 20
i
|
'
N
No. 86-1617
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986
Otis R. Bowen, Secretary of Health
and Human Services, Petitioner,
v.
Lorraine Polaski, et al., Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
OPINIONS BELOW
Petitioner's statement omits the
March 1, 1985 order of the court of
appeals, finding that the position of the
Secretary with respect to the former pain
standard was not substantially justified
under 28 U.S.C. §24:12(da)(1)(A). Resp.
App. lra-5ra.
STATEMENT OF THE CASE
The petition seeks review of the
judgment of the court of appeals, which
partially affirmed a preliminary injunc-
tion directing the Secretary to provide
notice relief to class members whose
Claims of disabling pain had been decided
under an illegal policy. Both the
district court and the court of appeals
found that a systematic procedural irregu-
larity had inflicted irreparable harm on
the class. The illegal policy denied
claimants the individualized consideration
Which the law requires and precipitated a
constitutional confrontation between the
Secretary and the courts.
OY nee
The notice relief ordered by the
court of appeals requires neither time-
tables nor payment of benefits to persons
who are not disabled. The order will
result in the reopening of some 600 to 900
claims for re-evaluation and the mooting
of the constitutional conflict. The class
members whose claims will be reopened all
had live and non-time barred claims when
the class claims here, and in the prede-
cessor Iowa class action raising identical
issues, were filed.
A. The District Court Proceedings
as to the Pain Issue.
On April 3, 1984 respondent Polaski
moved the district court to amend her
complaint seeking reversal of the Secre-
tary's denial of disability benefits. The
amended complaint sought class-wide relief
|
in order to resolve and end the on-going
furor within the Eighth Circuit concerning
the Secretary's policy for evaluating pain.
App. 5a, 50a, 58a-59a.
Polaski sought relief on behalf of
a narrowly defined class which included
only those persons who fell within the |
short sixty-day statute of limitations
specified by 42 U.S.C. $405(g).3/ Class
respondents sought to resolve this on-
going controversy in the most expeditious
manner possible. They sought: (1) a tempo-
rary restraining order to preserve the
status quo, i.e., an order halting the -
continuing issuance of decisions under
assertedly illegal standards; and (2) a
3/tme sixty-day period has been extended by
five days pursuant to the Secretary's
regulation, allowing additional time for
mail. 20 C.F.R. §$§$404.901, 410.1401.
preliminary injunction to require adjudi-
cation of cases under lawful standards.
On April 17, 1984, the district
court granted respondents' request fora
temporary restraining order. App. 40a,
47a. The district court promptly set the
matter for hearing on the motion for a
preliminary injunction. In the nine (9)
days that elapsed from the court's order
allowing amendment of the complaint to the
hearing on the motion for a preliminary
injunction, the parties did not engage in
discovery. The preliminary injunction
motion was submitted to the district court
on affidavits and on the briefs and argu-
ments of counsel.
A central question the preliminary
injunction motion presented was whether
the Secretary had adopted a practice that
allegations of pain should be disregarded
unless they were fully corroborated by the
objective medical evidence, i.e., unless
the claimant could establish a cause and
effect relationship between the objective
evidence and the degree of symptomatology
which he eaperienced. App. 56a-57a. The
Secretary asserted that such a policy did
not exist and that he was following Eighth
Circuit law, which requires careful and
individualized evaluation of each clain.
The Secretary stressed that his regu-
cnksen, 20 C.F.R. §404.1529, required only
a "reasonable" relationship between objec-
tive findings and symptoms. App. 58a-60a.
The district court found against
the Secretary on this issue. It con-
cluded the Secretary did in fact require
claimants to establish not only the
ta aa CTR ANE A hy PTR RIES
presence of symptoms, but also the sever-
ity of the symptoms, through objective
medical evidence. This conclusion was
based in part upon a detailed analysis of
Social Security Ruling 82-58. App. ola.
The holdings of the district courts and
the court of appeals in case after case
provided further support. App. 56a-59a.
Those cases involved appeals from
decisions of the ALJs or Appeais Council,
the point at which the Secretary had
applied his expertise to assure that his
policies were uniformly and correctly
applied. 4 / The reported cases evi-
denced the Secretary's systematic require-
ment that subjective complaints be fully
corroborated by objective medical
evidence.
In addition, the affidavit evidence
included two cases which had been remanded
from district court. In each case the
Appeals Council, using apparently boiler-
plate language, required that the ALJ not
4/the Solicitor General has described the
function of the Appeals Council as
follows:
"The ALJ and Appeals Council stages
. . e-furnish the Secretary with her princi-
pal opportunity to apply her expertise and
correct errors by the state agency. ...
"Centralized review by the Appeals
Council in turn serves to ensure that the
complex statutory and regulatory provi-
sions are correctly and uniformly applied
by the approximately 800 ALJs." Brief for
the Petitioners, at 13-14, 31, Heckler v.
City of New York, No. 84-1923.
find a disability unless the medical signs
and findings supported both the symptoms
"and the degree of symptomatology alleged."
App. 6la-63a.
Based on the affidavit record, the
district court also found that the class
was suffering irreparable harm as a result
of the Secretary's policy. The district
court found:
It is hard to envision a more
urgent situation. Claimants who
lose or are denied benefits face
foreclosure proceedings on their
homes, suffer utility cutoffs and
find it difficult to purchase food.
They go without medication and
doctors’ care; they lose their
medical insurance. They become
increasingly anxious, depressed,
despairing - all of which aggra-
vates their medical conditions.
They begin to think of suicide.
They even die from the very dis-
abilities the agency denies they
have. App. 68a-69a.
Based on the evidence adduced, the
ongoing tide of reversals in the courts,
App. 50a, and the Secretary's avowed
policy of non-acquiescence, App. 63a-65a,
on April 27, 1984 the trial court entered
a preliminary injunction. Although it
criticized them, App. 59a-6la, the
district court didnot invalidate either
the regulation or the Social Security
Ruling. The agetrict court did make a
preliminary ¢inding that, notwithstanding
the Secretary's denials, a standard
contrary to the requirements of Eighth
Circuit law and of the Social Security Act
was being applied within the circuit.
App. 65a.
B. The Court of Appeals
Proceedings as to the Pain Issue.
On appeal and at the urging of the
court, App. 3la, the parties entered into
a settlement concerning the standard for
evaluating pain in the Eighth Circuit, a
standard which the Secretary concedes
reflects the proper method for evaluating
pain under the Act. App. l6a-lWa. Signif-
icantly, that standard, agreed to by the
parties, includes’ the following language
which is directly contrary to the dir-
ectives which the Appeals Council had been
issuing to ALJs within the circuit:
- »« edirect medical evidence
of the cause and effect relation-
ship between the impairment and
the degree of claimant's subjec-
tive complaints need not be
produced. The adjudicator may not
disregard a claimant's subjective
complaints solely because the
ll
objective medical evidence does
not fully support then.
App. l4a.
The Eighth Circuit initially
approved the settlement as a correct state-
ment of the law and directed the Secretary
to continue to adhere to those standards
in adjudicating cases within the Eighth
Circuit. App. 20a, 30a-34a.
Following the parties’ agreement on
the pain standard to be applied, the court
of appeals issued its decision on December
31, 1984. After disposing of both the
medical improvement issues and the prospec-
tive pain issues, App. 8a-2la, the court
turned to the matters which are now raised
in the petition for certiorari. This, the
most critical portion of the decision
12
below, App. 2la-27a, the Secretary largely
ignores. 2/
The district court's preliminary
injunction order had been based on
findings of irreparable harm and of an
unlawful standard. App. 52a, 5oa-65a,
68a-7la. The court of appeals addressed
these two findings in turn. First, the
court affirmed the trial court's finding
of potentially irreparable harm. App.
23a-24a.
Second, for various reasons the
court found no basis to overturn the
finding of an unlawful policy. Plaintiffs
alleged the systematic application of an
unlawful standard. Defendant himself
3/ The sole references in the entire Petition
are (1) a citation to the page numbers,
Pet. 10, and (2) a brief reference to the
finding of irreparable harm, Pet. 18.
*
; 13
admitted that his published ruling could
be "misinterpreted" as embodying that very
standard and that at least “some adjudi-
cators" had been systematically employing
the unlawful standard. App. 24a.
In addition, the court interpreted
its own pain cases as meaning exactly what
the district court had found them to mean:
the Secretary was failing ". . .to follow
the proper pain standard. . ." App. 24a;
58a-59a. The court also construed its own
14
100% reversal ratee/ as probative of
the existence of an unlawful standard, of
a "procedural irregularity" such as that
identified in Mental Health Association of
Minnesota v. Heckler, 720 F.2d 965, 970
(8th Cir. 1983). App. 24a-25a. The court
stated that class members whose cases had
been decided before July 17, 1984, and had
6/nx1 though not available at the time, dis-
trict court statistics confirm the extra-
ordinarily high reversal rates. Nation-
ally during this period district courts
were reversing or remanding 86% of cases
and affirming only 14%. OHA Fact Sheet
for Fiscal Year 1984, at 6, Social
Security Administration, Office of
Hearings and Appeals, SSA Pub. No. 70-039,
May 1985. Compare Mental Health
Association of Minnesota v. Heckler, 720
F.2d 905, 9/70 (8th Cir. 1983). (80%
reversal rate). In view of the raging
controversy which was well known to
judges, magistrates and counsel, it is
likely that the reversal rate for the
class at least equaled the national
statistics for the period.
io
not been re-decided, were not adjudicated
under the proper standard. App. 25a.
In addition to affirming the
factual foundationsl/ €or the prelim-
inary injunction, the court of appeals
analyzed the legal requirements of 42
U.S.C. 9405(g). The court interpreted the
statute on the basis of its prior decision
in the seminal Mental Health litigation
and on the basis of the Second Circuit's
analysis in City of New York v. Heckler,
442 7.26 729 (and Circ. 1964), att*4.,
Bowen v. City of New York, No. 84-1923
(June 2, 1986), both of which had applied
the principles enunciated in Mathews v.
7/The dissent felt the factual support for
the existence of an unlawful policy was
not so strong here as in Mental Health.
App. 29a. The dissent did not suggest,
however, that the finding was an abuse
of discretion.
16
Eldridge, 424 U.S. 319 (1976). App. 2la-
23a, 2da-26a.
The court found that $405(g)
requires a pragmatic analysis consistent
with the underlying policies of exhaustion.
App. 23a. The court determined that,
Since class members were not seeking the
award of benefits but were challenging the
standards applied, their essentially proce-
dural claim was sufficiently collateral to
bring the case within the requirements of
Mathews v. Eldridge. App. 20a. The court
noted that the class was narrowly tailored
to conform to the sixty day requirement of
5405(g) and remanded to provide a notice
relief to class members who still claimed
to be disabled and had not been readjudi-
cated. App. 26a-28a.
17
The Secretary filed a petition for
a writ of certiorari, which this Court
held pending its decision in Bowen v. City
of New York. In City of New York, this
Court analyzed the requirements of §405(g)
in the same way as had the court of
appeals. The Court subsequently granted
certiorari in this case, vacated the judg-
ment and remanded for reconsideration in
light of City of New York.
In a subsequent order the court of
appeals, through a now unanimous
panel, 8/ held that there was no reason
to amend the majority's prior opinion.
App. la-2a.
8/prior to City of New York the panel had
been divided. App. 28a-29a. In addition,
three (3) judges had originally voted to
grant rehearing en banc. App. 10la.
After City of New York, however, the
petition for rehearing en banc was denied
unanimously. App. 3a.
18
C. The Class Scope and the Relief.
The relief below involves a notice
and an opportunity for readjudication for
class members who continue to claim they
are disabled. App. 27a-28a. The Secre-
tary says that this will require him to
reopen the claims of approximately 8,000
class members, Pet. at 12. That estimate,
however, is predicated on significant ana-
lytical errors. This figure (the same
estimate used below) erroneously assumes
(1) that no class members have been reeval-
uated, and (2) that all persons who
receive a notice will request reevaluation.
Yet the Secretary admits these assumptions
are incorrect. Resp. App. /ra-8ra.
The data show that from 43% to 71%
of persons denied benefits will have been
19
readjudicated on appeal. 2/ "Table
4.-Disability Determinations and Appeals,
Fiscal Year 1985", in Background Materials
and Data on Programs Within the Juris-
diction of the Committee on Ways and
Means, Committee on Ways and Means, U.S.
House of Representatives, March 3, 1986.
And in other disability class actions only
2/pursuant to counsel's request for summary
data under the Minnesota Data Practices
Act, the Minnesota Disability
Determination Service performed a computer
search which showed how many initial
application denials entered from January
30, 1984 through July 17, 1984 have been
readjudicated within the DDS since July
17, 1984. The computer run showed that
49-50% of such cases had been subsequently
readjudicated, whereas the national data
for appeals at that level show only a 43%
appeal rate. These data indicate that the
national data may understate the incidence
of readjudications. Thus the overall
readjudication rate, rather than being "a
bit" over 50% as the Secretary previously
admitted, Resp. App. 7ra is more likely in
the range of 55% to 60%.
20
2U% to 25% of class members have responded
to mailed notices. 10/
Reducing class size to account for
the 55% to 60% of cases which have been
readjudicated yields a universe of
possible class members of approximately
3,200 to 3,600. Since only those who
respond to a notice must be readjudicated,
the number of cases which are likely actu-
ally to be reopened under the order below
is in the range of 640 to 900, 11/ a far
cry from 8,000. Even for these 640 to 900
10/tmis information was provided by counsel
for claimants in Lopez v. Heckler, Civ.
No. 83-0698 (C.D. Cal.) (over 40,000
notices mailed to a circuit-wide class),
and in Hyatt v. Heckler, 807 F.2d 376 (4th
Cir. 1986} (over 10,000 notices). The 20%
to 25% figure itself is in the mid-range
of response rates typically experienced in
Class actions. See Newberg on Class
Actions, 2nd ed., Vol. 2, at 207-215.
11/Te low range is 3200 x .20; the high
range is 3600 x .25.
21
persons (distributed among the six (6)
states covered by the class), there are no
requirements as to time limits and no
awards of benefits. App. 27a-28a.
REASONS FOR DENYING CERTIORARI
The Secretary's principal argument in
support of his petition is that the court
of appeals’ ruling is in conflict with
City of New York. While acknowledging
that there is no conflict between the
ruling below and that of any other
Circuit, the Secretary also cites what he
refers to as a “trend of decisions”™ that,
like the decision of the court of appeals
below (as the Secretary reads it),
threatens the continuing integrity of the
22
exhaustion requirement in social security
cases, and he urges this court to act in
this case to stop that "trend."
The first contention (though only the
first contention) at least comes within
the considerations which U.S. Sup. Ct.Rule
17 indicates may motivate this court to
exercise its certiorari jurisdiction. In
seeking to advance that argument, however,
the Secretary is burdened by a record and
a court of appeals decision that can
hardly be hidden. He seeks to shed that
burden by describing to this court a dif-
ferent case - and offering for review a
different question - than the one actually
presented. See Section (I). When the
question actually presented is understood,
it is manifest that there is no conflict
between the court of appeals’ decision and
23
City of New York. See Section (II).
Finally, the "trend" the Secretary posits
is mythical; there is no need for the
Court to stem any tide away from the
exhaustion requirement, because there is
no such tide. See Section (III).
I.
NEITHER THE DECISION BELOW NOR
THE RECORD RAISES THE QUESTION
THE PETITION PRESENTS.
The petition repeatedly asserts
that the court of appeals waived exhaus-
tion for the claims of class members even
though it affirmed the policies that had
“"govern[ed] those claims. ..." Pet. ll,
on one. Ff. 2, 86, Ate If that had
happened, the court of appeals committed
palpable and grievous error; and this
court, rather than simply granting
24
certiorari, should grant certiorari and
summarily reverse. In truth, however, the
Secretary has blatantly misstated what the
court of appeals affirmed and ignored what
that court found.
The court of appeals affirmed that
its own prior decisions interpreting the
Social Security Act were correct and that
the Secretary's regulation and ruling,
when “clarified” in light of those
decisions, could be sustained. The court
found, however, that the Secretary had not
applied those lawful policies to the class
members for whom exhaustion was waived.
See discussion, pp. 13-lo6.
The Secretary's incredible asser-
tion that this case does not involve "a
finding of an unlawful circuit-wide
policy. . .", Pet. 17, rests largely ona
25
distortion of the settlement agreement.
In the agreement the Secretary admitted
that “some adjudicators" were following an
unlawful policy. The Secretary now twists
the admission, re-casting it as if it were
the only allegation!2/ and the only
finding in the case. This false premise
pervades the Petition. 13/
12/the “allegation” that only some adjudic-
ators were confused was the Secretary's
allegation, not the plaintiffs’. Neither
plaintiffs nor the courts below were bound
by the Secretary's assertions of confusion.
Cf. Mental Health Association of Minnesota
v. Heckler, 620 F.Supp. 261, 26/7 (D. Minn.
1985).
13/The point highlighted in the Petition
actually reinforces the correctness of the
decision below. The record evidence and
district court findings showed that the
“some adjudicators” who were
systematically following an unlawful
policy included the members of the Appeals
Council. Given the function served by the
Appeals Council, see n. 3, a reasonable
inference is that “some adjudicators”
includes “all adjudicators”.
26
Such sophistry is not only essen-
tial to the Secretary's argument con-
cerning City of New York, it is central to
his ancillary arguments as well. Since
this case involves findings of an unlawful
system-wide policy, and not an individual
(or a class) claim for benefits, cases
requiring exhaustion where claimants seek
such awards, and Congress‘ incorporation
of general exhaustion principles into the
Act, are not apposite. Pet. 12-15. Inso-
far as petitioner suggests that the 1984
Social Security Disability Benefits Reform
Act of 1984 rendered the requirements of
§405(g) more stringent than they were
before, he continues to advance a
"perverse" position. City of New York,
Slip Op. at 18, n. 14. The Court, having
squarely decided that issue last Term,
27
should not grant certiorari to decide it
again.
Petitioner's misstatement of the
facts and holdings also leads him to the
erroneous assertion that the order below
conflicts with Section 3 of the 1984
Reform Act. 42 U.S.C. §$$423, 1382c. The
court of appeals correctly understood the
Act as implementing the policies con-
cerning evaluation of pain which were
embodied in the settlement agreement:
policies which require careful individual-
ized evaluations and a reasonable relation-
ship between pain and objective findings,
not full corroboration or a cause and
effect relationship. The court of appeals
waived exhaustion because those lawful
policies had not been extended to this
narrowly defined portion of the class.
28
Il.
THERE IS NO CONFLICT BETWEEN
THE COURT OF APPEALS' RULING
BELOW AND THIS COURT'S DECISION
IN BOWEN V, CITY OF NEW YORK.
While a conflict between a court of
appeals ruling and a decision of this
Court is, of course, a strong basis for
the issuance of a writ of certiorari, it
is only an "apparent" conflict that
ordinarily leads to issuance of the writ.
See United States v. Doe, 465 U.S. 605,
610 (1984), see generally, S. Stern, E.
Gressman, S. Shapiro, Supreme Court
Practice (6th Ed. 1986) at $4.5 (referring
to a "direct" and “readily apparent"
conflict). But here, there is not only no
"apparent" conflict between the court of
appeals ruling and City of New York, the
29
Secretary's contention notwithstanding,
there is no conflict at all.
A. This Court's Decision in City
of New York.
In Bowen v. City of New York, No.
84-1923 (June 2, 1986), this Court
analyzed the $405(g) exhaustion require-
ment for two groups of class members.
First, the vast majority of class members
had failed to exhaust their administrative
remedies long before the class action was
filea, 14/ The clandestine nature of the
Secretary's policy-was sufficient to
14/me class was comprised of persons whose
benefits were denied or terminated from
April 1, 1980 through May 15, 1983; suit
was not filed until February 8, 1983.
City of New York, Slip Op. 7 n. 6, 4.
Persons denied or terminated from April l,
1980 through December 5, 1982 (over 32
months), who did not appeal further, were
in the first group. The second group
covered a period of less than 5 1/2
months.
30
justify a summary waiver of exhaustion for
the first group. City of New York, Slip
Op. 14.
The Court analyzed the exhaustion
requirement for the second group (whose
claims were still alive when the class
litigation was filed) differently. Secre-
tiveness was clearly not an essential
element in the Court's analysis. 13/ Far
from being confined to the especially out-
rageous conduct of the Secretary in that
case, the Court's discussion of exhaustion
in City of New York sets forth the
essential parameters for adjudicating
cases under 93405(g).
The starting point for analysis was
Mathews v. Eldridge, which identified two
15/mme Court adverted to the unrevealed
nature of the policy only twice. Slip Op.
17.
31
factors that bear on the appropriateness
of a judicial waiver of exhaustion: (1)
that a claim be collateral to the claim
for benefits, and (2) that full relief
cannot be obtained through exhaustion.
Slip Op. 14-16. In City of New York the
Court squarely rejected the Secretary's
exceedingly restrictive interpretation of
each requirement.
First, the Court held that a claim
that the Secretary failed to follow the
governing rules is “collateral" to the
administrative claim for benefits where
claimants attack the rules themselves and
do not seek an actual award of benefits.
Slip Op. 15. The Court thus rejected the
' Secretary's assertion that only “entirely
collateral" claims justify a waiver of
exhaustion. Brief for the Petitioner at
32
35-39, Heckler v. City of New York, No.
84-1923.
Second, the Court addressed the
matter of iedupetstic harm as an essen-
tially factual issue. Slip Op. 15-16.
The findings of irreparable harm below
were accepted, contrary to the Secretary's
assertion that harms associated with
pursuing administrative appeals were
irrelevant as a matter of Congressional
intent. City of New York, Brief for Pet.
at 27-29. Indeed, the Court indicated it
should be “especially sensitive" to such
harms, where the government aasks to
require exhaustion as a prerequisite to
obtaining the procedure claimants were
lawfully entitled to obtain from the
outset. Slip Op. 16.
a2
More fundamentally, the Court
rejected the Secretary's extraordinarily
narrow and rigid overall approach to
$405(g) in favor of estabiianed and
familiar principles of exhaustion:
Finally, application of the
exhaustion doctrine is “intensely
practical." Eldridge, 424 U.S.,
at 331, nm. ll. . .. The ultimate
decision of whether to waive
exhaustion should not be made
solely by mechanical application
of the Eldridge factors, but
should also be guided by the
policies underlying the exhaustion
requirement.
Slip Op. at 16.
Having established the fundamental
principles underlying §405(g), the Court
applied those principles to the facts.
Those principles would rarely if ever
allow waiver of exhaustion to attack
ordinary irregularities in the processing
34
of an individual claim. Slip Op. 16-17.
Clearly exhaustion should be waived,
however, in the circumstances of City of
New York, which presented the Court with
an egregious injustice. Slip Op. 17.
Finally, the Court addressed the
appropriate form of relief. Requiring
that the Secretary merely reopen claims
administratively and readjudicate cases
under proper standards was entirely
appropriate and did not constitute an
undue interference with the administrative
process. Slip Op. 17.
B. The Court of Appeals' Interpret-
ation of $§405(g) was Identical to City of
New 4 oe
Petitioner's suggestion of a
conflict studiously and inappropriately
omits citation to the critical portions of
35
the decision below. U.S. Sup. Ct. Rule
21.3. Contrary to the Secretary's
assertions, the court of appeals in this
case not only determined that the Secre-
tary had been applying an unlawful stan-
dard, it interpreted and applied the
requirements of §405(g) precisely as did
this Court in City of New York.
First, the Eighth Circuit under-
stood that the challenge to an unlawful
standard is substantially "collateral" to
an individual claim for benefits, App.
26a, under the first of the two Mathews v.
Eldridge factors. That is the very
holding of City of New York on that point,
Slip Op. 15, and only by misstating the
findings below can the Secretary suggest a
conflict. a oF
36
Second, the court of appeals
affirmed the findings of irreparable harm
caused both by the denial of benefits and
by pursuit of the administrative process.
App. 23a-24a. As in City of New York,
those findings are not challenged on
appeal. 16/
16/the courts below found, inter alia, that
claimants experienced an increase in
anxiety and depression and that their con-
ditions worsened. These findings are ap-
propriate, not only because they are
unchallenged, but also because the class
includes many mentally ill individuals.
The Secretary below interpreted the class
to include all mental illness denials. In
addition, there is likely to be a
substantial mental illness component in
many of the pain denials; indeed, the
Secretary deferred issuance of certain
revised mental illness listings because
that very matter was included in the pain
study mandated by Congress. 50 Fed. Reg.
35038, 35051, August 28, 1985.
37
Rather than challenge the findings,
the Secretary brazenly misstates them as
follows:
In this case, by contrast, neither
court below found that pursuit of
the administrative review process
would itself cause harm to the
instant plaintiffs. Pet. 18.
This is simply a falsehood, App. 23a-
24a; 68a-69a; the Secretary's entire argu-
ment as to irreparable harm founders on
the holdings below.
Third, the Eighth Circuit correctly
understood the proper perspective for
evaluating §$405(g) and the Eldridge
factors. The lower court's construction
of the statute as requiring a “rather
pragmatic" approach, App. 22a-23a, was
prescient of this Court's determination to
follow an “intensely practical” course.
38
Slip Op. 16. The Eighth Circuit
considered no one Eldridge factor to be
critical; this Court held the Eldridge
factors should not be mechanically applied.
Compare App. 23a with Slip Op. 16.
Clearly the essential and important
principles of law applied here and in City
of New York are the same.
C. The Court of Appeals' Waiver of
Exhaustion was Entirely Consistent with
City of New York.
Not only does this case involve an
unlawful policy inflicting irreparable
harm, but many of the additional factual
characteristics which this Court noted in
City of New York are also present here.
As in City of New York, it is clear
that the unlawful policy was inconsistent
“in critically important ways", Slip Op.
17, with the established law of the
circuit and with the Social Security Act.
This was not an insignificant, ancillary
or usually harmless policy; rather, it
went to the heart of the disability
decision-making process. Where the courts
determined that the unlawful policy had
been followed, they had been required to
reverse or remand cases to the Secretary
again and again. Layton v. Heckler, 726
F.2d 440, 442 (8th Cir. 1984).
As in City of New York, too, the
policy was illegal precisely because it
ignored the particular facts of the
individual cases.127/ the unlawful pain
standard provided adjudicators with a
simplified litmus test, a bottom line
rule, to decide pain issues; and adjudi-
cators repeatedly distorted, ignored or
failed to develop the facts. Layton, 726
F.2d at 442; Tome v. Schweiker, 724 F.2d
711, 713 (8th Cir. 1984); Basinger v.
17/tndeed, the presumption invalidated in
City of New York and Mental Health was
a particularized application of the
general rule involved here. The former
mental impairment listings focused solely
on the “objective” psychiatric "signs" and
"findings", and the unlawful presumption
required disability to be based solely on
that "objective" basis by determining that
anyone who did not meet the listings was
capable of substantial gainful employment.
The mental impairment presumption thus
sought to remove consideration of subjec-
tive symptomatology which could not be
Clearly proved from objective findings in
much the same way that the “full corrobora-
tion" rule sought to remove consideration
of pain or other complaints which could
not be entirely explained by objective
findings.
41
Heckiersc, -425 F.26 1366,. 1170 .t Stn. Cie.
1984); Nelson v. Heckler, 712 F.2d 346,
348 (8th Cir. 1983). The effect of the
unlawful rule was to deny claimants the
searching and individualized analysis
based on the full record to which they
were entitled.
This case also presents compelling
reasons for waiving exhaustion beyond
those which were present in City of New
York. Here the Secretary's refusal to
follow the law of the circuit precipitated
a genuine crisis 8/ which rendered
exhaustion both futile and unjust.
Because of the Secretary's non-
acquiescence, which had been openly
18/Por example, in response to the
Secretary's policies, the Governor of the
State of Arkansas, acting in defiance of
the Secretary's instructions, directed the
Arkansas DDS to follow Eighth Circuit law.
42
assailed by the court of appeals itself,
App. 58a-5¥a, the adjudicative system was
burdened with unprecedented levels of
appeals and reversals. This result was
extraordinarily wasteful and costly to the
administrative system. It imposed
unwarranted costs, delay and anxiety on
claimants and required an unnecessary
diversion of advocacy resources. It also
resulted in an undue imposition on the
scarce resources of the federal courts.
In addition to imposing costs in
terms of delay and money, the policy under-
mined the rule of law. Public confidence
in the federal government and in the fair-
ness of the adjudicative system was compro-
mised. Cf. H.R. Rep. 98-616, 98th Cong.,
2nd Sess. (1984) at 2, 24-25. In
addition, the Secretary's conduct resulted
43
in a dual system of laws, one system for
those with the resources or determination
to pursue appeals, anda different system
for the uneducated, the unrepresented or
the meek.
The implications of this crisis
with respect to the question of exhaustion
are three-fold. First, because many
individuals or advocates were aware of the
furor, large numbers of individuals did
appeal their cases. The scope of the
Class for whom the exhaustion issue is
Critical is correspondingly limited.
Second, those who did allege signif-
icant pain not fully corroborated by
objective tests, and who did not exhaust
their administrative remedies, are most
likely to be the uninformed, the
unrepresented and the emotionally or
44
mentally impaired.19/ since the Social
Security system was designed to be
unusually protective of the rights of such
claimants, City of New York, Slip Op.
11-12, a waiver of exhaustion for a
limited group of such persons is entirely
consistent with the fundamental purposes
of the Act.
Third, since the Secretary was put
on notice of the unlawful policy by the
court of appeals itself over eight (8)
months before the class claims were filed,
Nelson, 71z F.2d at 346, every member of
the class could have been lawfully adjudi-
cated from the outset had the Secretary
19/me Secretary does not allege that he in-
formed such claimants of his unlawful
policy (which he denies ever existed), and
the assertion that such individuals "know-
ingly" abandoned their claims is partic-
ularly unwarranted.
45
Simply responded appropriately. Instead,
the Secretary waited to act until faced
with a circuit-wide class. Here waiver of
exhaustion requires only that the Secre-
tary take corrective measures which he
both could and should have initiated on
his own with respect to these very class
members. Compare City of New York, Slip
a ae oF
The Court has directed that
exhaustion principles be applied in an
“intensely practical" manner. City of New
York, Slip Op. 16. Considering the
finding of irreparable harm, the finding
of a system-wide policy, the critically
important impact of that policy on dis-
ability decisions, the circumvention of
the individualized review to which
individuals are entitled, and the extra-
46
ordinarily wasteful and unjust results of
the Secretary's conduct, the court of
appeals acted well within the range of its
broad discretion in waiving exhaustion for
a very narrow class.
D. The Scope of Relief Ordered
Below Was Entirely Consistent With City of
New York.
The relief ordered in this case is
far less intrusive than that awarded in
\
City of New York, for it involves no
interim benefits and only a notice/opt-in
procedure. 20/ App. 27a-28a.
This relief was particularly
appropriate because it effectively termi-
nated further litigation over a constitu-
20/city of New York (and Mental Health before
it) required not only interim benefits but
also the affirmative reopening of all
cases, regardless of whether class members
responded to a notice.
47
tional confrontation between the Secretary
and the courts and did so in the least
intrusive manner possible. Here, the
court of appeals not only took the unusual
step of urging the parties to settle and
avoid the constitutional conflict, its
Subsequent opinions leave no doubt that
the court was directing that the matter
should be considered resolved once notice
relief was extended to the limited portion
of the class which remained. App. 26a-
28a; Resp. App. lra-3ra. By thus allowing
the case to become moot without requiring
an ultimate confrontation over the issue
48
of non-acquiescence, 21/ the court of
appeals was acting in the highest tradi-
tion of judicial restraint.
The alternative to notice relief
would have been a remand for complete dis-
covery and a trial concerning weighty and
21/o¢ course, the Secretary remains free to
attempt to insist on a constitutional show-
down on remand, if he wishes to do so.
Numerous factors might induce the Secre-
tary to act with restraint, including (1)
the numbers of persons responding to
notice relief will be small, as the Secre-
tary well knows; (2) the cost of circuit-
wide discovery may be substantial; (3)
Chief Judge Alsop (to whom the case is now
assigned) will have broad authority over
the content and timing of discovery and
the timing of trial; (4) if the Secretary
insisted on trial, he might open up the
issue of tolling the 60-day statute of
limitations; and (5) the Secretary himself
may wish to avoid ultimate constitutional
issues. That the Secretary's choice is a
difficult one, however, does not argue for
a grant of certiorari. It goes without
saying the Court should not grant
certiorari in order to simplify a party's
tactical litigation decisions, especially
when that party has not sought certiorari
on that basis.
49
far-reaching constitutional questions. In
addition, the prospective settlement had
already rendered the dispute moot for the
great majority of the class, further
diminishing the appropriateness of such
proceedings.
This court rarely reviews questions
of the scope of preliminary injunctions,
and where it does so the question "is
Simply whether the issuance of the
injunction, in _ the light of the applicable
Standard, constituted an abuse of
discretion." Doran v. Salem Inn, Inc.,
422 U.S. 922, 932 (1975). The relief
Granted was as narrow as possible. 22/
22/More intrusive forms of relief not ordered
below but which have been awarded in some
Other actions include: (1) mandatory
reopening of all files; (2) judicial
imposition of time limits, (3) interim
benefits, and (4) tolling the 60 day
statute of limitations.
50
The court of appeals unquestionably
applied the correct legal standards; and
its handling of this case, and the relief
it allowed 23/,were nothing if not
intensely pragmatic. Every judge on the
court of appeals considers what little
remains of this case to be inappropriate
for further review. Respondents submit
that there is no basis whatsoever for
holding that the court of appeals abused
its broad discretion in ordering notice
relief. That court's wise and restrained
order should be left undisturbed.
23/the court of appeals significantly cur-
tailed the relief which had been ordered
by the district court. Compare App. 27a-
28a and App. 76a-84a.
51
Iil.
THERE IS NO "TREND" OF
DECISIONS THAT IS UNDERMINING
THE INTEGRITY OF THE EXHAUSTION
REQUIREMENT IN SOCIAL SECURITY
CASES.
This Court's decision in City of
New York grounded §$405(g) jurisprudence
upon the well-established principles
governing application of the exhaustion
doctrine in other contexts. The federal
courts are experienced and expert in
applying these principles, and there is
little or no reason to believe that a
substantial or erroneous “trend” of
decisions has developed or will develop
after City of New York.
Not only is there no conflict in
the circuits as to any exhaustion issue
this case presents, Pet. 23, there is not
92
even a conflict between any circuits and
any district courts. The Secretary's
suggestion that all the lower courts are
misinterpreting City of New York argues
against a grant of certiorari. It is one
thing to suggest that one or a few lower
courts are misconstruing a Supreme Court
decision; it is a different thing entirely
to claim that all the federal courts which
have decided the issue are wrong. It is
far more likely that it is the Secretary
who is mistaken, either about City of New
York or about the decisions below.
In fact, there has been a singular
paucity of litigation over §$405(g) issues
since City of New York. The few dis-
ability cases which have been decided
certainly do not evidence any wholesale
tendency of tne courts to depart from
53
settled rules of exhaustion. Hyatt v.
Heckler, 807 F.2d 376, 378 (4th Cir. I986)
(exhaustion will rarely be appropriate);
Salyers v. Secretary, 798 F.2d 897 (6th
Cir. 1986) (dismissing class claims as
moot); Hironymous v. Bowen, 800 F.2d 888,
893 (9th Cir. 1986)(refusing to waive
exhaustion); and Pratt v. Bowen, 642
F.Supp. 883, 887 (D.D.C. 1986)(affirming
prior decision to waive exhaustion). 24/
This is hardly the time to re-visit the
principles so clearly enunciated by a
unanimous Court last Term.
24/tn addition to the reported cases,
respondents are aware of one unreported
case touching these issues. Knight v.
Bowen, No. 82-892(K) (D.C. Mass. November
24, 1986)(Keeton, J.). That case turned
On the unique fact that the class was
comprised of the oldest of SSI
beneficiaries, many of whom would die
before they could exhaust, and
the issue was simply a question of law.
Slip Op. 7-9.
Finally, even if there were a trend
such as the Secretary claims, this is not
an appropriate vehicle for review of the
trend. This case arises from a prelimi-
nary injunction, and the factual issues
are necessarily less fully developed than
would be true of other cases. The scope
of relief in this case which would result
from the waiver of eahaustion (i.e. the
reevaluation of some 100 cases per state)
simply does not warrant Supreme Court
review, particularly where review can only
serve to unearth a constitutional confron-
tation that is best left buried.
55
CONCLUSION
For the foregoing reasons, the
petition for a writ of certiorari should
be denied.
Respectfully submitted,
Mark A. Bohnhorst
Litigation Coordinator
[Counsel of Record]
Southern Minnesota
Regional Legal
Services, Inc.
700 Minnesota Building
46 East Fourth Street
St. Paul, MN 55101
Telephone (612) 228-9823
Laurie Davison
Litigation Director
Mid-Minnesota Legal
Assistance
222 Grain Exchange Bldg.
323 Fourth Avenue South
Minneapolis, MN 55415
Telephone (612) 332-1441
May 1987 ATTORNEY FOR RESPONDENTS
56
RESPONDENTS' APPENDIX
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 84-5085
Lorraine Polaski, et al.,
Appellees,
Margaret M. Heckler, Secretary
of Health and Human Services,
Appellant.
On Appellees' Motion for Costs and
Attorneys' Fees.
Filed March l, 1985
Before HEANEY, JOHN R. GIBSON and FAGG,
Circuit Judges.
— — —_—_—
ee — ee — ee)
On December 31, 1984, this Court
issued its final opinion on this lengthy
lra
litigation concerning the construction of
the Social Security Act by the Secretary
of Health and Human Services (Secretary).
Polaski v. Heckler, 751 F.2d 943 (8th Cir.
1984). The plaintiffs now seek attorneys'
fees and costs under the Equal Access to
Justice Act, 28 U.S.C. §2412(b) & (d).
We find an award for attorneys'
fees and costs appropriate under section
2412(d), which provides that fees and
costs shall be payable to a prevailing
party
in any civil action * * *
brought by or against the
United States in any court
having jurisdiction of that
action, unless the court finds
that the position of the
United States was
substantially justified or
that special circumstances
made an award unjust.
28 U.S.C. 92412(d)(1)(A).
2ra
In this litigation, the plaintiffs
succeeded in gaining significant relief
for a large class of Social Security
disability benefits claimants. Their
lawsuit was the catalyst for resolution of
a controversy over the Secretary's
evaluation of pain and other subjective
complaints--a controversy in which the
Secretary had been reserved by our Court
time after time, and failed ever to appeal
our decisions to the United States Supreme
Court. |
To this degree, we find the
Secretary's position in this litigation
was not substantially justified, see
Cornella v. Schweiker, 728 F.2d 978,
981-85 (8th cir. 1984), and that
attorneys’ fees and costs should be
awarded to plaintiffs to reflect this
3ra
degree of success, see Hensley v.
Eckerhart, 103 S.Ct. 1933, 1939 (1983).
We limit the attorneys’ fee award to $75
per hour pursuant to section 2412(d)(2)(A).
We note further that a significant portion
of the time spent in this appeal by
plaintiffs' attorneys reflects work on the
medical improvement issue, for which it
cannot be said that the plaintiffs
prevailed or that the Secretary's position
was not substantially justified. We thus
reduce the attorneys' fees award by one
third to reflect the plaintiffs' overall
degree of success. Thus, the total
attorneys' fees award is $7,752. We also
grant an award of costs of $335.
FAGG, Circuit Judge, dissenting.
Because I believe the Secretary's
position in this litigation was
4ra
substantially justified, I dissent from
this order.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
5ra
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
LORRAINE POLASKI, et al.
Plaintiffs-Appellees,
*
*
vs. * NO. 85-5085
* (D. Minn. Civ.
* Action No. 4-
MARGARET M. HECKLER, *
Secretary of Health .
*
*
*
and Human Services,
84-64)
Defendant-Appellant.
AFFIDAVIT OF JEAN HALL HINCKLEY
STATE OF MARYLAND :
COUNTY OF BALTIMORE:
I, Jean Hall Hinckley, being duly
Sworn according to law, depose and say as
follows: |
1. I am the Acting Deputy Associate
Commissioner for Disability, Office of
Disability, Social Security
Administration, Baltimore, Maryland.
ora
2s: 2£ £ & 2 8 Bf
[PARAGRAPHS 2-15A HAVE NOT BEEN INCLUDED
IN THIS APPENDIX. ]
15B. In paragraph 8, Mr. Bohnhorst
states his belief that the appellate
filing rate averages 50% or a bit more.
We do not disagree with his belief. We do
disagree, however, with his assumption
that the total number of cases to be
reworked is equivalent to one-half of
those recently adjudicated. While we
agree that one-half of those would have to
be readjudicated anyway, there is an
additional body of cases (those who are
not pursuing their appeal rights) which
must be addressed. Thus, Mr. Bohnbhorst
has understated the total number of
potential claims requiring reworking.
2 & & & &
[PARAGRAPHS 15C AND 15D HAVE NOT BEEN
INCLUDED IN THIS APPENDIX. ]
Tra
i5E. In his paragraph 11B, Mr.
Bohnhorst is critical of SSA's
estimates based on 100% of cases.
Our estimates are done with the idea
of letting courts Know the maximum
impact of an order. We do not
disagree that it is reasonable to
expect less than 100% response to
our notices.
2 & @.2.6- & >
[PARAGRAPHS 15F-17 HAVE NOT BEEN INCLUDED
IN THIS APPENDIX. ]
18. The information contained in
this affidavit was secured by various
employees of the Social Security
Administration and is true and correct to
the best of my information and belief.
Sra
Jean Hall Hinckley
JEAN HALL HINCKLEY
Acting Deputy Associate
Commissioner for
Disability
Office of Disability
Social Security
Administration
Subscribed and sworn to be fore
me this 18th day of May , 1984.
/s/
Notary Public
My Commission Expires July 1, 1986.
Q9ra
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.