# Record and brief — Schweiker v. Chilicky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1230%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1988 - **Citation:** 487 U.S. 412 ## Text a’ Xb ) No. 86-1781-CFX Status: GRANTED Docketed: May 6, 1987 Entry Date Note Court: United States Court of Appeals Title: Richard Schweiker, et al., Petitioners Vv. James Chilicky, et al. for the Ninth Circuit Counsel for petitioner: Solicitor General Counsel for respondent: Morris,William E., Tribe,Laurence H. NOTE: Time to file ext by O’Connor, J. to & inc. 5/7/87 cited Proceedings and Orders 25 1987 1987 1987 1987 1987 1987 1987 1987 1987 1987 1987 1987 1988 1988 1988 i968 1988 1988 1988 Application for extension of time to file petition and order granting same until May 7, 1987 (O’Connor, February 27, 1987). Petition for writ of certiorari filed. Brief of respondents James Chilicky, et al. in opposition filed. DISTRIBUTED. June 25, 1987 REDISTRIBUTED. September 28, 1987 Petition GRANTED. SEAAAAAAAAAAAAAAAAAAAAAAEAAARAAAAAEAERAEARERERREAEREHRERAREEEEE Motion of the Solicitor General to dispense with printing the joint appendix filed. Motion of the Solicitor General to dispense with printing the joint appendix GRANTED. Order extending time to file brief of petitioner on the merits until December 3, 1987. Beief of petitioners Richard Schweiker, et al. filed. Record filed. Certified copy of original record and Cc. A. proceedings received, 3 volumes. Order extending time to file brief of respondent on the merits until January 22, 1988. SET FOR ARGUMENT. Tuesday, March 1, 1988. (4th case). (1 hour). CIRCULATED. Brief of respondents James Chilicky, et al. filed. X Brief amici curiae of National Mental Health Association, et al. filed. B..ief amici curiae of ACLU, et al. filed. Reply brief of petitioners Richard Schweiker, et al. filed. ARGUE PETITION FOR WRIT OF CERTIORARI Fea 86 1782) woo No. 7, ik JOSEPH F. Brae JR. In the Supreme Court of the Gnited States OcToOBER TERM, 1986 "EILED RICHARD SCHWEIKER, ET AL., PETITIONERS Vv. JAMES CHILICKY, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER CLEGG Assistant to the Solicitor General WILLIAM KANTER HOWARD S. SCHER Altorneys Deparimeni of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether a Bivens remedy should be implied for alleged due process violations in the denial of social security disability benefits. (1) PARTIES TO THE PROCEEDING Petitioners are Richard Schweiker, former Secretary of Health and Human Services; John Svahn, former Com- missioner of the Social Security Administration; and William R. Sims, Director of the Arizona Disability Deter- mination Service. Respondents are James Chilicky, Dora Adelerte, and Spencer Harris.' ' In the original complamt there were, besides respondents, seven other plaimtitfs. These seven, who did not pursue the appeal to the Ninth Cwrcun, were Atanacio Alamanza, Arthur Flynn, Donald Bond, Demutrio Higuera, Joseph Tellez, Bonnie Bircher, and Conme Diaz. TABLE OF CONTENTS , Page eee n aces sec seséesscccccescccces l Nee ce ce ccc esc tbesscoccccccecs l Statutory provisions involved ........5 0.0.0... 50 eee eewees 2 Statement: A. The statutory and regulatory framework for review ee os oc nccbedccecesceesces 2 B. The proceedings in this case ...............0000005: 4 Reasons for granting the petition ..................000005. 8 ee ee cs cco ceectoesesceccoces 17 eet eck wheseen eds ceesccsscecscees la i ee eee caceeseeeebeseccccecoccees 1Sa eT ec cccccet ect ececcsccves 19a ee ee ec ees cedccnstcccceccecece 2la i coc ceecdeccdcoveovecccccece 23a ee eee Cee cab ce ecccccesevescceccccess 24a TABLE OF AUTHORITIES Cases: Bivens v. Six Unknown Named Federal Narcotics Agents, ED eb cdccndececes 6, 8, 11, 12, 14, 15, 16 Bowen v. City of New York, No. 84-1923 (June 2, 1986) . 2 Bush v. Lucas, 462 U.S. 367 (1983) ......... 8, 9, 10, 11, 15, 16 Califano v. Boles, 443 U.S. 282 (1979) ................. 14 Califano v. Sanders, 430 U.S. 99 (1977) .... 2.20000. 0.. 12 Carlson v. Green, 446 U.S. 14(1980) .................. 11 Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981) ............... S Harlow v. Fitzgerald, 457 U.S. 800 (1982) .............. 6 Heckler v. Campbell, 461 U.S. 458 (1983) .............. 14 Heckler v. Day, 467 U.S. 104 (1984) ................. 9, 10, 15 Heckler v. Ringer, 466 U.S. 602 (1984) .............. 10, 13, 14 Hudson v. Palmer, 468 U.S. 517 (1984) ................ 11 Mathews v. Eldridge, 424 U.S. 319 (1976) .............. 11 Parratt v. Taylor, 451 U.S. $27 (1981) ...... 2.2.2.0... 11 Richardson v. Perales, 402 U.S. 389 (1971)... 2.2... 14 (111) IV Cases — Continued: Page United States v. Standard Oil Co., 332 U.S. 301 (1947)... 10 Weinberger v. Salfi, 422 U.S. 749 (1975) .. 2... 2... 13, 14, 15 Constitution, statutes and regulations: U.S. Const.: I sce cencuckubhdwuenesseene ital te emheia bale es 8 Amend. XIV (Due Process Clause) ................. I Social Security Act: Tit. Il, 42 U.S.C. (& Supp. IIL) 401 ef seg. ........... 2 42 U.S.C. Goa. GE GRBGEE) 2. cc ccccccccccecs 3 i Ss op ccdcecccntevadees -6neeseus 2 is ee kéeendnces 3, 6, 10, 11, 12, 14, 15, 24a 42 U.S.C. (Supp. Il) 405(h) ...... 6, 8, 11, 12, 13, 14, 25a es Se OID oo cccccccccevccess 2, 5 ic I EE 6.6.6 6 cceccccccseccscss 3 SEU Be. Gs CD 6c cnc ccs vacccccecess 2,4 Tit. XVI, 42 U.S.C. (& Supp. Ill) 1381 ef seg. ........ 2 ee ue eleuweheees 3 is SE o's cc ovecevdecdeseeeeeeecter 3 a ed Pou we eels 2 Pub. L. No. 96-265, § 311(a), 94 Stat. 460 (42 U.S.C. IEE 5 cong ones eseeenssetuuncacedes 5 Pub. L. No. 97-455, § 2, 96 Stat. 2498 (42 U.S.C. (Supp. I kde cteetewldadwectbeseecarensatedssens 4 Pub. L. No. 98-460, 98 Stat. 1794: § 6(d), 98 Stat. 1802 (42 U.S.C. 421 note) ............ 4 SD Eo sce tesbcccevescsDeasecetbencs 4 § 7(b), 98 Stat. 1803 (42 U.S.C. (& Supp. II) ths Jesteees cakes es hn edeeaneas cases 4 IR i ai lk i ek oe eae 12 eas wa oi a 05 ba SUA ee eR ee enel 11 20 C.F.R.: eee Se ew eekb ae 3 es gro 8 eae 3 oS) cee bed Saad deen ean eee he 3 | Vv uv a go . o Constitution, statutes and regulations — Continued: i a dee eee sib eee ees STE SE ee ss eee tea NeeeeNe en 6 cs in bud be bees eens eee i a a a eae ET ae os ce cece ebeeedenaeuees ete es ds i vecapeeeeeetes od a ec eteeueeebaee es coded bebe 5eebsooeee es i cece whe eewe de ene Ns cee kene we eeeeakess kid de beeevene bade ees ss civnek cd cues adaneteuwss i ee eeeeteenes i Bes ee keke eescdunhets ts. ots cca enbateeneeusé as ee need eneeeeenes Section 416.1433(b) .. 2.6... eee eee ee eee gn. ue ea seabeeeeswes as ee bebe ds du cdbneees a ee ees ee eu h ee en eanedab buabe ceeaunes www www ww ww ww BN N Ww Ww Ww Ww Ww Ww NWN Ww Miscellaneous: H.R. Rep. 728, 76th Cong., Ist Sess. (1939) ............ 12 S. Rep. 734, 76th Cong., Ist Sess. (1939) ............... 12 oo re ee mee a In the Supreme Court of the Gnited States OCTOBER TERM, 1986 No. RICHARD SCHWEIKER, ET AL., PETITIONERS v. JAMES CHILICKY, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Solicitor General — on behalf of Richard Schweiker, former Secretary of Health and Human Services; John Svahn, former Commissioner of the Social Security Ad- ministration; and William R. Sims, Director of the Arizona Disability Determination Service (Arizona’s com- ponent of the social security disability program) — peti- tions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, la-14a) is reported at 796 F.2d 1131. The opinion of the district court (App., infra, 1Sa-18a) is unreported. JURISDICTION The judgment of the court of appeals (App., in/ra, 19a-20a) was entered on August 12, 1986. A petition for rehearing with a suggestion for rehearing en banc was denied on December 8, 1986 (App., infra, 2la-22a). On (1) 2 February 27, 1987, Justice O’Connor extended the time for filing a petition for a writ of certiorari to and including May 7, 1987. The jurisdiction of this, Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent statutory provisions, 42 U.S.C. (& Supp. 111) 405(g) and (h), are set forth in App., infra, 24a-26a. STATEMENT A. The Statutory And Regulatory Framework For Review of Disability Claims 1. The disability programs under Title II (see 42 U.S.C. (& Supp. IIl) 401 er seg.) and Title XVI (see 42 U.S.C. (& Supp. II) 1381 ef seg.) of the Social Security Act are ad- ministered jointly by state agencies and the Secretary of Health and Human Services. Congress has directed that the determination whether an individual is under a disability shall be made in the first instance by a state agency (here, the Arizona Disability Determination Serv- ice), pursuant to regulations, guidelines, and performance standards established by the Secretary. 42 U.S.C. (& Supp. Ill) 421(a), 1383b(a); 20 C.F.R. 404.1503, 416.903; Bowen v. City of New York, No. 84-1923 (June 2, 1986), slip op. 3. If the state agency makes an initial determination that a new applicant is not disabled—or that the disability of a current recipient has ceased (see 42 U.S.C (& Supp. III) 421(i)) —the individual may request a de novo reconsidera- tion by the state agency. The claimant has the right to a face-to-face interview before the reconsideration (see 42 U.S.C. 405(b)(2); 20 C.F.R. 404.917) and he is personally notified that he must request reconsideration within 60 days of his receipt of the adverse initial determination. 20 3 C.F.R. 404.904, 404.909(a)(1), 416.1404, 416.1409(a). If he does not do so, the adverse initial determination becomes binding upon him. 20 C.F.R. 404.905, 416.1405. If an individual is dissatisfied with the agency’s decision on reconsideration, he “shall be entitled to a hearing thereon by the Secretary.” 42 U.S.C. (Supp. II1) 421(d); see also 42 U.S.C. 1383(c\1). The Act requires —and the claimant is personally notified — that he must request such a hearing, which will be conducted by an ALJ, within 60 days of his receipt of the state agency’s reconsideration decision. 42 U.S.C. (Supp. III) 405(b)(1); 42 U.S.C. 1383(c)(1). Absent such timely request, the state agency’s decision becomes binding upon the claimant. 20 C.F.R. 404.920, 404.921(a), 404.933(b), 416.1404(b)(3), 416.1405, 416.1420, 416.1421(a), 416.1433(b). If the ALJ’s decision is adverse to the claimant, he then may seek review by the Appeals Council of the Social Security Administration (SSA). The claimant is specifically informed that if he does not seek such review within 60 days, the adverse A‘ J decision is binding. 20 C.F.R. 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468. After the Appeals Council has either denied review of the ALJ's decision or granted review and rendered its own deci- sion, the claimant may seek judicial review pursuant to 42 U.S.C. 405(g). See 42 U.S.C. (Supp. II1) 421(d), 1383(c)(3); 20 C.F.R. 404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481, 422.210. 2. In addition to the multi-level framework for review just outlined, Congress has afforded other procedural pro- tections for individuals, like respondents here, who have been receiving disability benefits but whose eligibility to continue to receive such benefits is under review by the Secretary. With respect to recipients of Title II benefits, Congress in 1983 enacted temporary legislation (which has been extended through January 1, 1988), permitting claimants to continue to receive benefits following an 4 adverse initial decision until an ALJ had rendered a deci- sion on the claim. Pub. L. No. 97-455, § 2, 96 Stat. 2498, codified at 42 U.S.C. (Supp. Il) 423(g); Pub. L. No. 98-460, § 7(a)(2), 98 Stat. 1802. Congress has afforded the same protection to Tithe XVI (Supplemental Security In- come (SS1)) recipients, whose eligibility is based on need. See Pub. L. No. 98-460, § 7(b), 98 Stat. 1803, codified at 42 U.S.C. (& Supp. II1]) 1383(ax(7). This statutory action followed years of a similar regulatory practice with respect to SSI recipients. See 20 C.F.R. 416.1336(b). Finally, Congress has required the Secretary to establish demonstration projects in at least five states, pursuant to which the Secretary gives Title Il and Title XVI claimants the opportunity for a personal appearance prior to the in- itial determination of ineligibility under 42 U.S.C. (& Supp. Ill) 421(i), rather than afterwards. Pub. L. No. 98-460, § 6(d), 98 Stat. 1802, codified at 42 U.S.C. 421 note. Thus the recipient is enabled to argue his claim in ad- vance of the initial determination, where the state agency has reached a preliminary conclusion adverse to the claim- amt. Congress has directed the Secretary to file a report concerning these projects. /bid. B. The Proceedings in This Case 1. Respondents are three individuals’? who were ben- eficiaries of disability benefits under Title Il or Tithe XVI. They filed sum against Richard Schweiker, John Svahn, and William R. Sims in their official and individual capacities.’ Richard Schweiker is the former Secretary of > Respondents have withdrawn their earlier motion for class cer- tification (see App., infra, 4a, 1Sa). As stated at page II note |, supra, of the ten original plaintiffs only the three respondents pursued their claim through the court of appeals. ’ Respondents tailed to serve two additional defendants properly, and consequently the district court dismissed the claims against them im thew individual capacities (App., fra, 2a-3a n.1, 16a). By the time 5 Health and Human Services; John Svahn is the former Commissioner of the Social Security Administration; and William R. Sims is the present director of the Arizona Dis- ability Determination Service. App., infra, 2a, 1Sa-16a. Respondents were subject to “continuing disability review” (CDR), a process Congress enacted in 1980 to en- sure that only those individuals whose medical conditions still warranted disability status received payment. Pub. L. No. 96-265, § 311(a), 94 Stat. 460, codified at 42 U.S.C. (& Supp. II) 421(i); see also App., infra, 2a. Their benefits were terminated by the CDR process; the benefits were, however, ultimately reinstated through the ad- ministrative appeals process. See App., infra, 2a. In their complaint, respondents claimed that petitioners had violated their due process rights by, inter alia, ac- celerating the starting date of the CDR process; illegally nonacquiescing in the law of the circuit; failing to apply uniform written standards in implementing the CDR proc- ess; failing to render decisions consistent with allegedly dispositive evidence; and using an impermissible quota system under which state agencies were required to ter- minate a certain number of recipients. App., infra, 2a-3a; see also page 7 note 6, infra. Respondents sought injunc- tive and declaratory relief, and money damages for “emo- tional distress and for loss of food, shelter and other necessities proximately caused by [petitioners’] denial of benefits without due process” (App., infra, 3a n.2). 2. The district court dismissed the case in its entirety on qualified immunity grounds (App., infra, 1Sa-18a). lt discussed why the government’s policies of accelerated re- the case reached the court of appeals, only claims against officials in their individual capacities remained (id. at 4a), and consequently these two defendants are no longer in the case. * The Arizona DDS is authorized by statute and is an integral part of the federal disability determination process. See 42 U.S.C. (& Supp. Hl) 421(a). 6 view and non-acquiescence violated no clearly established statutory or constitutional rights, and thus concluded that Harlow vy. Fitzgerald, 457 U.S. 800 (1982), barred respondents’ damage claims with respect to these policies (App., infra, 16a-18a). The district court did not discuss respondents’ other claims, but apparently determined that they were barred by qualified immunity as well (see id. at 16a, 18a). 3. Respondents then appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed in part, reversed in part, and remanded the case to the district court for further proceedings (App., in/ra, la-14a). On appeal, the only issues raised by respondents pertained to their Bivens’ claims for money damages against petitioners in their individual capacities (see Resp. C.A. Br. ii). Petitioners contended that there was no subject matter jurisdiction to entertain respondents’ claims, since the pro- cedures set forth in 42 U.S.C. 405(g) are the exclusive means of redress for actions “arising under” the relevant provisions of the Social Security Act. See 42 U.S.C. (Supp. Ill) 405(h). They also pointed out that the existence of the Act’s elaborate procedures for resolving disability claims counsels strongly against judicial implication of a damages remedy, and that there could be no colorable claim of denial of due process when respondents were afforded the protections of Section 405(g). Petitioners also contended that the district court lacked personal jurisdiction as well as subject matter jurisdiction, and that in any event respondents’ claims were barred by qualified immunity. The court of appeals found that the district court had subject matter jurisdiction (App., infra, 4a-6a). lt rea- soned that the action was not for restoration of disability benefits, but rather for damages stemming from constitu- > See Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971). : tional violations committed in terminating those benefits, so that it did not arise under the Social Security Act and was not barred by Section 405(h) (App., infra, 6a). The court then ruled that the officials waived their personal jurisdiction defense by not raising it at the appropriate Stage in the district court proceedings (id. at 7a-9a). Finally, the court of appeals affirmed the district court's dismissal on qualified immunity grounds of respondents’ accelera- tion of review and nonacquiescence claims (id. at lla-13a), but reversed the district court’s dismissal on qualified immunity grounds of the balance of respondents’ claims® and remanded for futher proceedings (id. at 13a-14a). The court of appeals concluded that under the current record it could not determine that respondents could prove no state of facts estabiishing an actionable due process violation for the latter claims (id. at 14a). ~ The court of appeals denied petitioners’ petition for rehearing with a suggestion for rehearing en banc, which was limited to the subject matter jurisdiction issue (App., infra, 2\a-22a). * As described by the court of appeals (App., infra, 13a-14a), the remaining allegations are: 1. Knowing use of unpublished criteria and rules and stand- ards contrary to the Social Security Act. 2. intentional disregard of dispositive favorable evidence. 3. Purposeful selection of biased physicians and staff to review claims. 4. Imposition of quotas. 5. Failure to review impartially adverse decisions. 6. Arbitrary reversal of favorable decisions. 7. Denial of benefits based on the type of disabling impair- ment. 8. Unreasonable delays in receiving hearings after termination of benefits. REASONS FOR GRANTING THE PETITION The decision of the court of appeals can be squared with neither the plain language of Section 405(h) nor the deci- sion of this Court in Bush v. Lucas, 462 U.S. 367 (1983). Furthermore, the creation of a Bivens remedy for social security claims would threaten to overwhelm not only the Social Security Administration but also the federal courts with an avalanche of litigation. If respondents — who were ultimately denied not a penny of benefits and whose damage claims border on the frivolous —can maintain a Bivens action, then millions of social security claimants can do so as well. Accordingly, action by this Court is ap- propriate. At the same time, this is the first such ruling by a court of appeals since this Court's decision in Bush v. Lucas,’ and there is no conflict in the circuits. The United States will shortly (May 13, 1987) file a petition for cer- tiorari in Cooper v. Kotarski, posing the question of the application of Bush v. Lucas in the probationary employ- mem context, where a clear circuit conflict has developed. In order to conserve this Court's limited plenary review docket, we suggest that the Court hold this petition pend- ing resolution of Aotarski. 1. a. The court of appeals’ decision is inconsistent with this Court’s decision in Bush v. Lucas. In Bush, the plaintiff asked this Court to authorize a Bivens remedy for federal employees whose First Amendment rights are allegedly violated by their employers. In its analysis, the Court assumed that the “civil service remedies were not as effective as an individual damages remedy and did not fully compensate [plaintiff] for the harm he suffered” (462 U.S. at 372 (footnotes omitted))—that is, that “a federal right * In the pre-Bush v. Lucas decision of Ellis v. Blum, 643 F.2d 68 (1981), the Second Circuit upheld similar actions for damages based on allegations of emotional distress, on reasoning similar to that of the court of appeals here. 9 has been violated and Congress has provided a less than complete remedy for the wrong” (id. at 373). It concluded, however, that the proper focus for analysis was not on “what remedy the court should provide for a wrong that would otherwise go unredressed,” but rather on “whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue” (id. at 388). The Court held that, in light of the com- prehensive procedural and substantive provisions of the civil service laws governing the employment relationship between the government and its employees, which the Court emphasized had been carefully constructed by Con- gress over many years, it would be inappropriate to create a new Bivens remedy. /d. at 388-390; see also id. at 390-392 (Marshall, J., concurring). Like the civil service laws, the Social Security Act's special statutory procedures were the result of a carefully considered, step-by-step fine-tuning by Congress. See, e.g., Heckler v. Day, 467 U.S. 104, 111-118 (1984). This Court has noted that, “[t}o facilitate the orderly and sym- pathetic administration of the disability program of Title Il, the Secretary and Congress have established an unusually protective four-step process [discussed at pages 2-4, supra) for the review and adjudication of disputed claims” (id. at 106). The scheme has, for at least the last decade, “inspired almost annual congressional debate” (Heckler v. Day, 467 U.S. at 112). Indeed, as discussed at pages 3-4, supra, Congress in 1983 specifically refined the administrative review process to address the very concerns | at issue here — namely, that disability claimants might ex- perience undue financial or emotional harm by a cut-off of benefits while they pursued their administrative remedies. Accordingly, claimants like respondents may now continue to receive benefits through the ALJ hearing 10 stage while they challenge an adverse decision made at an earlier stage of the administrative process, and, in Statutorily mandated demonstration projects, are given an opportunity to appear and be heard prior to an initial determination, where the state agency has given preliminary indication of an adverse decision. The structure and history of the social security disability program thus plainly demonstrate that we are dealing with a “comprehensive scheme * * * providfing) meaningful remedies” (Bush, 462 U.S. at 386), and that Congress has long been attentive to fine-tuning those remedies as necessary. This is a “pervasively regulated area,” and the court of appeals decision is an “unwarranted judicial in- trusion” (Heckler v. Day, 467 U.S. at 119). As in Bush, Congress has provided “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations” (Bush, 462 U.S. at 388), which would only be impaired by recognition of sup- plementary, piece-meal remedies. See id. at 379-380, 388-389; United States v. Standard Oil Co., 332 U.S. 31, 314 (1947). In Bush, this Court “decline[d] ‘to create a new substan- tive legal liability without legislative aid and as at the com- mon law,’ * * * because we are convinced that Congress is in a better position to decide whether or not the public in- terest would be served by creating it” (462 U.S. at 390 (cation omitted)). And in connection with another sec- tion of the Social Security Act, this Court in Heckler v. Ringer, 466 U.S. 602, 627 (1984), observed that Congress must have understood that “hardship” could occur in the course of pursuing Section 405(g) remedies and, “[i}f the balance ts to be struck anew, the decision must come from Congress and not from this Court.” Precisely the same conclusion should be drawn here. Furthermore, there is no reason to assume that the ad- ministrative and judicial review process painstakingly con- structed and constantly adjusted by Congress is less than a fully adequate remedy for an erroneous denial of benefits at a preliminary stage of that process, even if the purported consequences are somehow removed from that denial per se and even if the challenge is cast in “due proc- ess” terms. Cf. Mathews v. Eldridge, 424 U.S. 319, 339-340 (1976).® b. A Bivens remedy is inappropriate in the present context for a reason which did not obtain in Bush. The Court began in Bush by stressing that “Congress ha[d] not expressly precluded the creation of such a [Bivens] remedy by declaring that existing statutes provide the exclusive mode of redress” (462 U.S. at 373). See also id. at 377-378; Carlson v. Green, 446 U.S. 14, 19 (1980). In this case, on the other hand, Congress has done just that. 42 U.S.C. (Supp. III) 405(h) provides: The findings and decision of the Secretary after a hearing shall be binding upon all individuals who ® See also Parratt v. Taylor, 451 U.S. 527, 537-544 (1981). In Par- rat, this Court declined to find that plaintiff had established a viola- tion of the Due Process Clause of the Fourteenth Amendment, where the claimed deprivation occurred as the result of the unauthorized failure of agents of the State to follow an established state procedure. The Court specifically noted (id. at 544) that the state remedies may not have provided plaintiff with all of the relief which he might have claimed in an action brought under 42 U.S.C. 1983. Nevertheless, the Court ruled that “[t}he remedies provided could have fully compen- sated the [plaintiff] for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process” (451 U.S. at 544). See also id. at 555 n.1 (citations omitted) (Marshall, J., concurring in part and dissenting in part) (“To be sure, the state remedies would not have afforded [plaintiff] all the relief that would have been available in a § 1983 action. | nonetheless agree with the majority that ‘they are sufficient to satisfy the requirements of due process.’ ”); Hudson v. Palmer, 468 U.S. 517, 530-536 (1984). Simi- larly, the remedies provided in Section 405(g) and the regulations issued pursuant to that section not only could have provided respondents with full relief from the denial of rights under the statute, but did so. 12 were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any per- son, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under Sections 1331 or 1346 of title 28 to recover On any claim arising under this subchapter. Section 405(h), therefore, has two provisions which bar Bivens actions. Its second sentence plainly precludes the review of any finding of fact or other decision by the Secretary except as provided in the Social Security Act. Section 405(g), in turn, is the on/y mechanism in the Act for the review of such decisions. Moreover, the full remedy available under Section 405(g) is the retroactive payment of disability benefits wrongfully ter- minated—which respondents have already received. Under these provisions, judicial review of administrative - decisions on claims for social security benefits is unavailable except where expressly authorized by the Social Security Act. See Califano v. Sanders, 430 U.S. 99, 110 (1977) (Stewart, J., concurring); S. Rep. 734, 76th Cong., Ist Sess. 52 (1939); H.R. Rep. 728, 76th Cong., Ist Sess. 43-44 (1939). Similarly, the third sentence of Section 405(h) precludes suits brought under 28 U.S.C. 1331 “to recover on any claim arising under” the social security disability program. Notwithstanding the contrary conclusion of the court of appeals (App., infra, 6a), it is plain that respondents’ Bivens action under Section 1331 “arises under” the disability benefits statute. This suit is exclusively concern- ed with the Secretary’s administration of that statute and with rights created under it. lronically, the court of ap- peals appears to rest its contrary decision on the fact that respondents’ benefits under the statute have already been 13 restored, thus leading it to the erroneous inference that any remaining action relating to the earlier denial of benefits does not arise under the Act (see App., infra, 6a). Nor will this Court’s decisions under the statute support the court of appeals’ decision. In Heckler v. Ringer, 466 U.S. at 615, 621-622, the Court held that plaintiffs’ claims that the Secretary had violated their due process and Statutory rights in denying medicare benefits “arose under” the Social Security Act. The Court stressed that the “arising under” language of Section 405(h) invokes a “broad test,” which includes “any claims in which ‘both the standing and the substantive basis for the presentation’ of the claims is the Social Security Act.” 466 U.S. at 615 (quoting Weinberger v. Salfi, 422 U.S. 749, 761 (1975)). The Court noted that plaintiffs had an “adequate remedy in Section 405(g)” (466 U.S. at 617), had not “raise[d] a claim wholly ‘collateral’ to their claim for benefits” (id. at 618), and had “no colorable claim that an erroneous denial of * * * benefits * * * cannot be remedied by the later pay- ment of benefits” (ibid.). The Court concluded that plain- tiffs’ claim “must be construed as a ‘claim arising under’ the Medicare Act because any other construction would allow claimants substantially to undercut Congress’ care- fully crafted scheme” (id. at 621). See also id. at 615; Weinberger v. Salfi, 422 U.S. at 756-762. Such reasoning is directly applicable to this case. Just as plaintiff Ringer’s request for declaratory relief “arose under” the statute even though his claim was to ensure future benefits, respondents claims here arise under the Statute even though their complaint is about the nonreceipt of past benefits. See 422 U.S. at 621. By holding otherwise, the court of appeals has “invit{ed] [respondents] to bypass the exhaustion requirements of the * * * Act” (ibid.). 14 This Court warned in Weinberger v. Salfi that the “sweeping and direct” jurisdictional bar embodied in the “arising under” language of Section 405(h) cannot be avoided simply because plaintiffs cast their allegations in constitutional terms (422 U.S. at 757, 760-761). That, of course, is all that respondents here have done. Their “due process” claim can be made by any claimant unhappy with an adverse benefit decision at any level of the ad- ministrative process. “Emotional distress” can be claimed every time an adverse benefits decision is rendered, and of course the denial of benefits will always cause the denial of what could have been bought with them —respondents’ “loss of food, shelter and other necessities proximately caused by [petitioners’] denial of benefits” (see App., infra, 3a n.2). Cf. Heckler v. Ringer, 466 U.S. at 627. There is no other component to respondents’ claim. Surely a cogstruction of Section 405(h) that would allow any challenge to a benefits decision to be split into two parts—one governed by Section 405(g), the other im- mediately amenable to resolution as a Bivens claim in district court — would defeat any purpose of that statute. Thus, the purpose as well as the language of the statute would be defeated by the court of appeals’ counterintuitive reading. 2. The potential impact of the court of appeals’ deci- sion — both on the federal courts and on the Social Secur- ity Administration —is dramatic. The SSA hearing system is “‘probably the largest adjudicative agency in the western world.’ ” Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (citation omitted). See also Califano v. Boles, 443 U.S. 282, 283 (1979) (“As an exercise in governmental administration, the social security system is of un- precedented dimension.”); Richardson vy. Perales, 402 U.S. 389, 399 (1971) (“The system’s administrative struc- ture and procedures, with essential determinations numbering into the millions, are of a size and extent dif- 15 ficult to comprehend.”). SSA processes some two million disability claims each year. See Heckler v. Day, 467 U.S. at 106. We are advised by HHS that in excess of 100 million other claims, under the Medicare, AFDC and retirement programs, are also processed annually. Under the court of appeals’ decision, an adverse ruling at any stage of any one of these cases can give rise to a Bivens suit for delay in payment or emotional distress.? The burden of this litigation on the Social Security Administration and the courts would be staggering. The effects of this decision within the Ninth Circuit, where it has precedential effect, and anywhere else that it is found persuasive, may include a substantial drain on agency resources to defend these Bivens actions. In addi- tion, agency personnel who make disability (and pre- sumably other eligibility) determinations will be inhibited in the performance of their duties, because they will know that their actions can result in individual damage actions against them. Cf. Bush, 462 U.S. at 388-389. This is true for both factual and policy determinations, and thus will affect all levels of program administration. 3. While the court of appeals’ decision is clearly wrong and seriously disruptive, we suggest that this petition be held pending disposition of Cooper v. Kotarski (petition to be filed no later than May 13, 1987), which also raises issues regarding the proper application of Bush v. * The court of appeals’ decision here also produces the rather anomalous result that claimants may seek damages for emotional distress resulting from an alleged deprivation of due process by the Secretary (and other officials) for any adverse benefit decision — even when, as here, the decision challenged is not the Secretary’s final deci- sion and even when the final decision turns out to be fully favorable to the claimant. This result, of course, is entirely inconsistent with the ex- haustion requirements of Section 405(g). See Weinberger v. Salfi, 422 U.S. at 756-759. 16 Lucas.'* In Kotarski, a probationary federal employee brought a Bivens action to obtain review of an employ- ment action for which he was expressly denied any remedy under the civil service laws. We argue there that, pursuant to the principles established in Bush, a Bivens action can- not be used to secure rights that Congress expressly de- clined to extend to such probationary employees. As we explain in our petition in Kotarski, that case presents the Court with a clear conflict in the circuits on an issue of great and recurrent practical importance to the government. It clearly requires this Court’s review, and we believe that such review is likely to provide guidance in the application of Bush v. Lucas in the context of this case. The present case, by contrast, presents no intercircuit con- flict. While we believe that absent Kosarski this case would merit full review, in the interest of conserving the Court’s plenary docket, we recommend that this petition be held pending disposition of Kotarski. Should review be denied in that case, or if the Court’s opinion there is not dispositive of this case, we urge that this petition be granted. ‘ A copy of our petition in Aotarski will be sent to opposing counsel at the time it ts tiled. 17 CONCLUSION The petition for a writ of certiorari should be held pend- ing the Court’s disposition of Cooper v. Kotarski, petition for a writ of certiorari to be filed May 13, 1987. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER CLEGG Assistant to the Solicitor General WILLIAM KANTER HOWARD S. SCHER Attorneys MAy 1987 APPENDIX A. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 84-2828 DC No. CIV 82-528 GLO ACM James Cuiicky, Dora ADELERTE, AND SPENCER HARRIS, PLAINTIFFS-APPELLANTS, Vv. RICHARD SCHWEIKER, FORMER SECRETARY OF HEALTH AND HUMAN Services; JOHN SVAHN, FORMER COMMISSIONER OF THE SocIAL SECURITY ADMINISTRATION; AND WILLIAM R. Sims, DiRECTOR OF THE ARIZONA DISABILITY DETERMINATION SERVICE, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS-APPELLEES. Appeal from the United States District Court for the District of Arizona Alfredo C. Marquez, District Judge, Presiding Argued and Submitted December 2, 1985 Phoenix, Arizona [Filed Aug. 12, 1986} OPINION Before: BROWNING, SNEED, and HUG, Circuit Judges. HUG, Circuit Judge: This case concerns the personal liability of certain state and federal officials and their immunity from damages arising from their alleged violations of citizens’ constitu- (la) 2a tional rights. Appellants, whose Old Age, Survivors and Disability Insurance (“OASDI") and/or Supplemental Security Income (“SSI”) disability benefits had been ter- minated during disability reviews in 1981, appeal the dismissal of their claims that appellees, the Secretary of Health and Human Services, the Commissioner of the Social Security Administration, and the Arizona state of- ficial who administered these disability benefits programs, unconstitutionally violated their rights under the Fifth Amendment in terminating appellants’ benefits. Appellants received disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 ef seg. (1982), or under the Supplemental Security Income program, 42 U.S.C. § 1381 ef seg. (1982). In 1980, Congress estab- lished, effective January 1, 1982, a continuing disability review (“CDR”) process to insure that only those in- dividuals whose medical conditions still warranted disability status received payment; however, the Secretary of Health and Human Services (the “Secretary” and “HHS,” respectively) implemented the CDR process in March, 1981. Appellants’ disability benefits were ter- minated by the CDR process; however, they were ultimately reinstated, either through the administrative ap- peals process or under the provisions of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794. On August 20, 1982, appellants James Chilicky, Spencer Harris, and Doris Adelerte, together with seven other similarly situated persons, filed suit against Richard Schweiker, then HHS Secretary, John Svahn, Social Security Commissioner, and William R. Sims, Arizona Director of Disability Determinations.' The complaint ' Both Schweiker and Svahn have since resigned, and pursuant to Federal Rule of Civil Procedure 25(d), Margaret Heckler and Martha McSteen were substnuted for the named appellees. The district court found that the substnuted appellees were not personally served wih a \ 3a asserted that the appellees ordered, sanctioned, or im- plemented numerous practices, in violation of federal law and the Fifth Amendment in administering the CDR proc- ess, which culminated in the termination of appellants’ benefits. The appellants alleged, inter alia, that the ap- pellees: (1) improperly accelerated the starting date of the CDR process from the statutory effective date of January 1982 to the earlier date of March 1, 1981; (2) illegally nonacquiesced in the law of this circuit; (3) failed to apply any uniform written standards in implementing the CDR process; (4) failed to render decisions consistent with allegedly dispositive evidence; and (5) used an impermissi- ble “quota system” under which state agencies were re- quired to terminate a certain number of recipients.’ On November 15, 1982, prior to submission of an answer, appellees filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), asserting, inter alia, a lack of both subject matter jurisdiction and personal jurisdiction for insufficiency of service of process. copy of either the complaint or the amended complaint and, therefore, dismissed Heckler and McSteen in their individual capacity from the lawsuit. Appellants do not contest this ruling on appeal. We note, however, that the district court correctly ruled that, without per- sonal service in accordance with Fed. R. Civ. P. 4(d), the district court lacked jurisdiction to render a personal judgment against these ap- pellees. See Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982). . * The complaint sought: (1) certification of a class of disability benefit recipients whose benefits had been terminated through the CDR process; (2) a declaratory judgment that the CDR process, as then administered, violated federal law and the Fifth Amendment's due process clause, (3) preluminary and permanent injunctions enjoin- ing the CDR process, (4) writs of mandamus directing the appellees to perform duties owed plaintiffs under federal law and the Fifth Amendment, (5) restoration of benefits; and (6) monetary awards for damages for “emotional distress and for loss of food, shelter and other necessities proxmmately caused by defendants’ denial of benefits without due process - 4a On July 15, 1983, the district court stayed the pro- ceedings pending disposition of Lopez v. Heckler. See Lopez v. Heckler, 725 F.2d 1489, 1493-96 (9th Cir. 1984) (detailing procedural history), vacated and remanded __ U.S. __, 105 S. Ct. 583, 83 L.Ed.2d 694 (1984). The district court vacated the stay on April 6, 1984. Because of the Lopez decision and actions taken by HHS prior to, and as a result of, the 1984 Disability Benefits Reform Act, appellants withdrew their requests for class certification and for declaratory and injunctive relief. Thus, the only claim remaining was their claim for money damages against appellees in their individual capacities for due process violations in implementing the CDR process. Appellants’ surviving claim is predicated on the constitutional tort theory of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On October 16, 1984, the district court dismissed the claim, ruling as a matter of law that all appellees were insulated from liability under the doctrine of qualified immunity. The district court found that the acceleration of the CDR process, the prob- lems encountered at the state level, and the standards utilized in the review process, including the purported nonacquiescence policy of the Secretary in decisions of the Ninth Circuit, were not violations of clearly established Slatutory or constitutional rights of which a reasonable person should have known. DISCUSSION A. Jurivdiction 1. Subject Matier Appellees argue that the district court lacks subject mat- ter jurisdiction of appellants’ constitutional tort cause of action. Their argument is predicated on the assumption that appellants’ action “arises under” the Social Security Sa Disability Act; thus, appellees contend, section 405(h), 42 U.S.C. § 405(h) (1982), precludes appellants’ lawsuit. We disagree. Section 405(g), 42 U.S.C. § 405(g) (1982) provides that “[a}ny individual, after any final decision of the Secretary made after a hearing to which he was a party .. . may obtain a review of such decision by a civil action ... brought in the district court of the United States. . .” and that the “court shall have the power to enter, upon the pleadings and transcript of the record, a judgment af- firming, modifying, or reversing the decision of the Secretary... .” Section 405(h) states: The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any per- son, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under [Title Il of the Social Security Disability Act]. We agree with appellees that appellants’ claim for money damages may not be raised under section 405(g); that section does not expressly grant the district court the power to award money damages to remedy the emotional distress caused by erroneous administrative decisions or processes. Rather, the only remedy available under section 405(g) is the retroactive payment of disability benefits that were wrongfully terminated. Appellants have already had their benefits retroactively restored by the Secretary; they now seek further compensation by instituting a lawsuit for money damages. Section 405(g) affords no such relief. 6a We disagree, however, with appellees’ contention that section 405(h) prohibits any non-section 405(g) action against the appellees from being brought under the Fifth Amendment due process clause.’ Section 405(h) only precludes actions “arising under” Title Il of the Security Disability Act, a section 405(g)-type action for disability benefits, from being instituted prior to exhaus- tion of administrative remedies. Heckler v. Ringer, 466 U.S. 602, 104 S. Ct. 2013, 2021-22 (1984); Weinberger v. Salfi, 422 U.S. 749, 764-66 (1975). Appellants do not pur- sue their remaining claim in an effort to have their disabili- ty benefits restored; this has been done. Rather, they seck damages for constitutional violations purportedly com- mitted by appellees in terminating appellants’ disability benefits. Consequently, the action does not arise under Title Il of the Social Security Disability Act and is thus not barred by section 405(h). The district court has subject matter jurisdiction under 28 U.S.C. § 1331 over ap-~ pellants’ due process claim against all appellees. Ellis v. Blum, 643 F.2d 68, 75-76 (2d Cir. 1981). See also Kuehner v. Schweiker, 717 F.2d 813, 816-17, 819 (3d Cir. 1983), vacated and remanded on other grounds, _._ U.S. ___., 105 S. Ct. 376 (1984); Ostroff v. State of Florida Dept. of Health and Rehabilitation Services, $54 F . Supp. 347, 354 (M.D. Fla. 1983) (federal defendants). ' Arguably, section 405(hy's ban on actions “against the Unned States, the Secretary, or any officer of employer thereof” does not ap- ply to suits agaunst state officials, such as Sims. Because the state defendant Sums administers the federally-funded disatiiny program, « can be argued that Sums was acting under color of federal law as an agemt of the Secretary and, as such, is within the ambu of section 405(h) For jurmdictional purposes only, we conclude that Sims was acting under color of federal law. “To hold otherwise arguably would mvne appl rants for Tule Il benefits to crcumvent sections 405(g) and (h) by Bringing sun under section 1331 against the state officials m- stead of the Secretary " Eilts «. Blam, 643 F.2d 68, 76 (2d Cw 1981) 7a 2. Personal Jurisdiction Although not expressly decided by the district court, Schweiker and Svahn contend that venue in the District Court of Arizona was improper and that the district court lacked personal jurisdiction over them because (1) the is- suance of service of process was unauthorized and, thus, defective; and (2) there were not sufficient minimum con- tacts between the federal defendants and the State of Arizona necessary to satisfy the requirements of /nterna- tional Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), and the Arizona long-arm statute.‘ Appellants argue that the district court did have personal jurisdiction over Schweiker and Svahn in their individual capacities, but that even if service of process was insufficient, personal jurisdiction under the Arizona long-arm statute was lack- ing, and venue was improper, these appellees waived their objections under Fed. R. Civ. P. 12(g) and (h). Fed. R. Civ. P. 12, and specifically subdivisions (g) and (h), promote the early and simultaneous presentation and determination of preliminary defenses. Rule 12(g) requires that a party who raises a defense by motion prior to an * answer raise all such possible defenses in a single motion; omitted defenses cannot be raised in a second, pre-answer * Arizona’s long-arm statute, Ariz. R. Civ. P. 4(e)(2), provides: When the defendant is a resident of this state, or is a corpora- tion doing business in this state, or is a person, partnership, cor- poration or unincorporated association subject to suit in a com- mon name which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, serv- ice may be made as herein provided, and when so made shall be of the same effect as personal service within the state. In case of a corporation or partnership or unincorporated association, service under this Rule shall be made on one of the persons specified in Section 4(d)(6). 8a motion.> Rule 12(h) imposes a higher sanction with respect to the failure to raise the specific defenses of (1) lack of personal jurisdiction, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process.* If a party files a pre-answer motion, but does not raise one of the defenses enumerated above, the party waives the omit- ted defense and cannot subsequently raise it in his answer or otherwise. See Myers v. American Dental Association, 695 F.2d 716, 720-21 (3d Cir. 1982), cert. denied, 462 U.S. 1106 (1983); Rauch v. Day & Night Manufacturing Corp., 576 F.2d 697, 701 (6th Cir. 1978); 2A J. Lucas & J. Moore, § 12.23, at 2446-47 (2d ed. 1982). [A}ny time defendant makes a pre-answer Rule 12 motion, he must include, on penalty of waiver, the defenses set forth in subdivisions (2) through (5) of Rule 12(b). If one or more of these defenses are omit- ted from the initial motion but were “then available” to the movant, they are permanently lost. Not only is defendant prevented from making it the subject of a > Fed. R. Civ. P. 12(g) provides that: A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion bas- ed on the defense or objection so omitted, except a motion as pro- vided in subdivision (h)(2) hereof on any of the grounds there Stated. * Fed. R. Civ. P. 12(h) provides that: (1) A detense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the cir- cumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. 9a second preliminary motion but he may not even assert the defense in his answer. 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1391 at 852-53 (1969). Appellees maintain that their first responsive pleading, Motion to Dismiss filed on August 20, 1982, preserved their objection to lack of jurisdiction over the person. We disagree. The only ground stated in the motion to dismiss was the lack of service of process, or a Rule 12(b)(5) defense. The specific defenses —lack of jurisdiction of the person under the Arizona long-arm statute, a Rule 12(b)(2) defense, and improper venue, a Rule 12(b)(3) defense — were not raised, and are thus waived. Appellees have abandoned their Rule 12(b)(5) defense, absence of service of process, and now claim that service of process against these appellees for money damages is not author- ized by statute. This specific defense was not raised, however, in the motion to dismiss; this objection is also waived. We do not accept the argument that by objecting to the lack of service of process, appellees are deemed to have raised a Rule 12(b)(2) defense. Rules 12(b)(4) and (5) were not designed to challenge personal jurisdiction allegedly obtained pursuant to a long-arm statute; rather, they were designed to challenge irregularities in the contents of the summons (Rule 12(b)(4)) and irregularities in the manner of delivery of the summons and complaint (Rule 12(b)(5)). Appellees’ personal jurisdiction challenge was made pur- suant to Rule 12(b)(5); they now contest personal jurisdic- tion under Rule 12(b)(2). Appellees were required, but failed, to consolidate all their Rule 12 defenses in their mo- tion to dismiss. As such, they waived their Rule 12(b)(2) defense. 10a B. Immunity of the Appellees’ The appellees argued, and the district court agreed, that they are entitled to qualified immunity on at least two of appellants’ claims: acceleration of the CDR process and nonacquiescence in the law of this circuit. With qualified immunity, federal officials performing discretionary func- tions generally are shielded from liability for civil damages insofar as their conduct does not violate “clearly estab- lished” statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitz- gerald, 457 U.S. 800, 818-19 (1982); Guerra v. Sutton, 783 F.2d 1371, 1374 (9th Cir. 1986). Under Harlow, the stand- ard is the objective reasonableness of the federal official’s conduct. Harlow, 457 U.S. at 818. “Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages ‘unless it is further demonstrated that their conduct was unreasonable under the applicable standard.’ ”" Capoeman v. Reed, 754 F.2d 1512, 1513 (9th Cir. 1985) (quoting Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 3018 (1984)). In this case, the federal defendants are entitled to immunity if they can prove “that they acted under a reasonable (even if mistaken) belief that what they were doing was lawful.” Guerra, 783 F.2d at 1374 (emphasis in original) (citing Bilbrey v. Brown, 738 F.2d 1462, 1466-67 (9th Cir. 1984)). The issue, as properly framed by the district court, is ’ All defendants were sued in their individual as well as official capacity. The district court ruled that the appellants’ action against appellees in their individual capacit:.. was defeated by the application of the doctrine of qualified immunity to these appellees. Although the district court did not directly address appellants’ action against ap- pellees in their official capacities, the doctrine of sovereign immunity must be found to have been implicitly applied by the district court. To the extent that appellees were sued in their official capacities, these claims are barred by the doctrine of sovereign immunity. See Gi/beri v. DaGrossa, 756 F.2d 1455, 1458-59 (9h Cir. 1985). whether the law at the time of the appellees’ alleged unlawful and unconstitutional activity clearly prohibited such conduct.* We review de novo the district court’s order, dismissing the appellants’ Bivens claims on the ground that appellees as a matter of law are entitled to qualified immunity. Bilbrey v. Brown, 738 F.2d 1462, 1467 (9th Cir. 1984). The district court expressly found that (1) the accelera- tion of the CDR process, and (2) the nonacquiescence in the law of the Ninth Circuit were not violations of clear statutory or constitutional law so that a reasonable person would have acted otherwise, and granted to all appellees qualified immunity from appellants’ claims. The parties agree that Congress lawfully authorized the CDR process. Appellants object, however, to the Social Security Administration’s acceleration of the CDR proc- ess, complaining that the states were ill-equipped to handle this increase in caseload. As the district court noted, Con- gress elected to delay implementation of the CDR process to allow the states time to employ and train personnel to handle the projected increase in disability review termina- tions. This staffing problem at the state level, however, ex- tended beyond the congressionally-enacted effective date. Appellants’ complaint, therefore, cannot be with the ac- celeration itself, but with the quality of the decisions rendered. Appellants’ claimed erroneous disability ter- minations were redressable through the administrative review process; each appellant successfully utilized this mechanism. Neither the lawfully authorized CDR process, nor the acceleration of that program deprived appellants of any statutory or constitutional rights. * Neither the parties nor the district court address the merits of the appellants’ Bivens claims. As the merits of the Bivens claims are not before us on appeal, we do not pass on the legitimacy of appellants’ claimed constitutional deprivations. 12a Appellants also challenge the actual review procedures adopted and utilized by the appellees, contending that these procedures differ from court-established standards.’ Specifically, appellants argue that the Secretary lacks authority to nonacquiesce in decisions of the courts. We do not need to address this issue, however, because under Harlow and Capoeman we are concerned only with the question of whether appellees’ conduct, at the time it oc- curred, was clearly a violation of appellants’ statutory and constitutional rights. Harlow’s “clearly established” standard requires that, in the absence of binding precedent, the court look to all available decisonal law, including decision of state courts, other circuit courts, and district courts to determine whether the law is clearly established. Capoeman, 754 F.2d at 1514; see also Ward v. County of San Diego, 783 F.2d 1385, 1387 (%h Cir. 1986) (amended June 16, 1986). Absent binding precedent, the court should also evaluate the likelihood that the Supreme Court or this circuit would have reached the same result as courts that had already considered the issue. Capoeman, 754 F.2d at 1515; Ward, slip op. at 5. * The Secretary issued formal notice of nonacquiescence im Finnegan v. Matthews, 641 F.2d 1340, 1345 (9th Cir. 1981), and Parti v. Schweiker, 669 F.2d 582, 586-87 (9th Cir. 1982), which hold that under the applicable statutes, the Secretary was required, before ter- minating a recipient's Social Security benefits, to come forward with evidence that a recipient's medical condition had improved. The Secretary advised all administrative law judges that the Social Security Administration's policy, tyat termination of benefits is called for if evidence shows the reciprent is not disabled under current criteria, was to be followed in all Crcun Courts of Appeal, even the Ninth Circuit, without obeying the Ninth Circun’s requirement that proof of im- provement im the clammant’s medical condition must be made before termination of diabiluy benefits. SSR 82-10c; SSR 82-1459. — —— l3a Our examination of relevant statutory and decisional law at the time of the termination of benefits compels us to concur with the district court’s evaluation: the law was not sufficiently clear in 1981 so as to expose to civil liability under Bivens those public officials, who in effect ter- minated disability benefits. At that time, there were no reported cases that held nonacquiescence by the Executive Branch in judicial decisions to be clearly unlawful. The of- ficials charged with the responsibility of implementing and administering the CDR process were confronted with a congressionally mandated program designed to terminate benefits, a Presidential directive to implement that pro- gram some 10 months earlier than its effective date, and an administrative policy guideline instructing Social Security Administration officials to ignore certain case authority. In view of these factors, we find that appellees acted within the bounds of Harlow’s reasonable person standard. The constant tension between the Executive and Judicial Branches over the appropriate standard for ter- minating disability benefits, together with the Secretary's nonacquiescence policy, rendered assessment of the legal- ity of the CDR process by even a legal scholar extremely difficult. Most government officials are not charged with “the kind of legal scholarship normally associated with law professors and academicians. A reasonable person stand- ard adheres at all times.” Ward, slip op. at 6. The complaint alleges that some or all of the appellees violated the due process rights of the appellants in these other respects: 1. Knowing use of unpublished criteria and rules and standards contrary to the Social Security Act. 2. Intentional disregard of dispositive favorable evidence. 3. Purposeful selection of biased physicians and staff to review claims. i Denial of benefits based on the type of disabling impairment. 8. Unreasonable delays in receiving hearings after termination of benefits. It cannot be determined as a matter of law that the ap- pellants could prove no state of facts under the. allega- tions that resulted in violations of their due process rights and consequent damages. Nor does the present state of the record establish as a matter of law that these appellees would be shielded from liability by qualified immunity. Although we agree with the district court that qualified immunity precludes some of appellants claims, the case must be remanded for further proceedings on those claims above mentioned. The decision of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further pro- ceedings. Sa APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV 82-528 GLO ACM JAMES CHILICKY, ET AL, PLAINTIFFS, Vv. MarGaret HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL, DEFENDANTS. [Filed Oct. 16, 1984] ORDER The defendants have moved to dismiss this action. The suit Originally involved claims by a class of recipients of social security benefits against the Secretary of Health and Human Services, the Commissioner of the Social Security Administration and the director of the Arizona Disability Determination Service. The claims arose when the Ad- ministration under President Reagan ordered a large number of disability reviews for recipients of social secu- rity. The plaintiffs asserted various claims for relief claiming that the review procedure violated their Sth amendment due process rights. Plaintiffs originally sought declaratory and injunctive relief plus damages in the form or retroac- tive benefits and compensation for emotional distress. Through various legislative, judicial and administrative actions, the need to determine the declaratory and injunc- tive requests is no longer necessary. Each of the named plaintiffs had their benefits reinstated retroactively. Counsel for the plaintiffs has also withdrawn his motion to certify the class, leaving only a suit by ten named plain- tiffs for emotional distress. 16a Suit was originally filed against Richard Schweiker, John Svahn and Robert Sims in their official and in- dividual capacities. During the pendency of this action, Margaret Heckler succeeded Richard Schweiker as Secretary of Health and Human Services. Martha A. McSteen succeeded John Svahn as Commissioner of Social Security. Under Rule 25(d) of the Federal Rules of Civil Procedure these parties were substituted for the named plaintiffs. The complaint in this action was served on Schweiker, Svahn and Sims. At no time were the substituted defend- ants Heckler and McSteen served although substitution occurred more than a year and a half ago. Dismissal as to these two defendants in their individual capacities is therefore appropiate. See Rule 4(j), Federal Rules of Civil Procedure. The court finds that there is no just cause for failure to serve during that time period. One ofthe grounds asserted for dismissal of this action is immunity, both absolute and qualified. This court finds that plaintiffs’ emotional distress claims are barred by the application of qualified immunity and therefore the defendants’ motion to dismiss this action is granted. To find qualified immunity for these governmental of- ficials, it must be determined whether the conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 102 $.Ct. 2727, 2739 (1982). The issue then is whether the law at the time of the alleged violations clearly prohibited the conduct of the defendants. It must be con- cluded that the law did not so clearly provide. The parties agree that the action taken by the Depart- ment of Health and Human Services was authorized by Congress. See Pub. L. No. 96-265 (1980). However, the date of implementing such a program was accelerated by the Administration. As the pleadings indicate, Congress desired to delay implementation in order to allow the state a a nooo, ~a 17a agencies to hire and train sufficient personnel to handle the increased workload. See report entitled “Oversight of Social Security Disability Terminations” by the Senate Subcommittee on the oversight of Governmental Manage- ment at page |. The President ordered the implementation of the program on March 1, 1981 rather than the January 1982 effective date proposed in the legislation. The plaintiffs claim that it was knowingly improper to require the state review agencies to handle the increased case load. This court holds that it was not a violation of clear statutory or constitutional rights. The fact that the states were still ill equipped to handle the caseload well into 1982, as the plaintiffs state in their opposition papers, indicates that no relief is available. lt appears that it is the failure of the states to provide the necessary personnel even well after the Congressional authorization would have taken effect, that caused a large portion of the delay asserted by the plaintiffs. At that point, it was clearly within the statutory duty of the defendants to have the state agencies review the caseload that they did. Relief is not appropriate on this ground as the courts will not in- tervene in the administrative procedures. Heckler v. Day, - 104 S.Ct. 2249 (1984). The early implementation is then not sufficient to justify a Bivens type action for damages. Plaintiffs also contend that the review procedures adopted by the defendants differed from standards im- posed by the courts. The Secretary has in fact issued formal notice of non-acquiesence [sic] in decisions from the 9th Circuit. See Social Security Rulings 82-10c and 82-49c; Par- ti v. Schweiker, 669 F.2d 582 (9th Cir. 1982) and Finnegan v. Mathews, 641 F.2d 1340 (9th Cir. 1981). The plaintiffs challenge the Secretary's ability to “non- acquiesce” [sic] in case law. Neither party has cited any cases to this court indicating that such policy is per se in- valid. In fact, the courts have been reluctant to intervene in administrative procedures. See Heckler v. Day, supra, (courts will not issue mandatory injunction requiring Social Security appeals to be resolved in 90-day statutory period); Heckler v. Ringer, 104 S.Ct. 2013 (1984) (exhaus- tion of administrative remedies required prior to judicial review). Defendants’ implementation of the review in fact oc- curred prior to the 9th Circuit rulings cited above. Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984). Although the Constitution provides that the Courts shall be the inter- preters of Federal Law, no case has been cited holding that non-acquiesence [sic] by the Executive branch is clearly in- valid. This court notes that it is a common practice at other agencies such as the National Labor Relations Board and the Department of the Treasury in Internal Revenue matters. lt cannot be concluded therefore that defendants’ conduct, at the time it occurred initially, was clearly a violation of plaintiffs’ statutory and constitutional rights so that a reasonable person would have acted otherwise. All defendants must therefore be protected by qualified immunity from damages relief as provided in Harlow v. Fitzgerald, supra. Since there are no claims stated upon which any plain- tiff may obtain relief, the case must be dismissed. IT 1S ORDERED that the defendants’ Motion to Dismiss is granted. DATED this 16th day of October, 1984. /s/ A .. Zz Alfredo C. Marquez United States District Judge 19a APPENDIX © UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 84-2828 DC No. CIV 82-528 ACM James Cunicky, Dora ADELERTE, AND Spencer Hares. PLAINTIFFS-APPELLANTS, v. RICHARD SCHWEIKER, FORMER SECRETARY OF HEAT TH AND HUMAN Services, Jon SVAHN, FORMER COMMISSIONER OF THE SociaAL SECURITY ADMINISTRATION; AND Witiam R. Sims, Director OF THE Arizona Disasiity DETERMINATION SERVICE, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS. APPELLEES. [Filed Dec. 19, 1986) JUDGMENT Appeal from the United States District Court for the District of Arizona (Tucson). THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for the District of Arizona (Tucson) and was duly submited. ON CONSIDERATION WHEREOF, It is now here or- dered and adjudged by this Court, that the judgment of the said District Court in this Cause be, and hereby is af- firmed in part, reversed in part and remanded. A TRUE COPY ATTEST DEC 16 1986 CATHY A. CATTERSON Clerk of Court by: /s/ OSCAR LAGLE Oscar Lagle Deputy Clerk Filed and entered August 12, 1986 2la APPENDIX D UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 84-2828 DC No. CIV 82-528 GLO ACM James CHILICKY, SPENCER HARRIS AND Dora ADELERTE, PLAINTIFFS-APPELLANTS, v. MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES; JOHN SVAHN, COMMISSIONER, SOCIAL SECURITY ADM.; AND WILLIAM R. Sims, Director, ARIZONA DitsaBiLiTy DETERMINATION SERVICE, DEFENDANTS- APPELLEES. Appeal from the United States District Court for the District of Arizona [Filed Dec. 8, 1986] Before: BROWNING, SNEED, and HUG, Circuit Judges. The panel, as constituted in the above case, has voted unanimously to deny the petition for rehearing and to re- ject the suggestion for a rehearing en banc. 22a The full court has been advised of the en banc sug- gestion and no judge of the court has requested a vote on it. Fed. R. pp. P. 35(b). The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. 23a APPENDIX E UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV-82-528-TUC-ACM JAMES CHILICKY, ET AL, PLAINTIFFS, Vv. MARGARET HECKLER, DEFENDANTS. [Filed Oct. 16, 1984] JUDGMENT IN A CIVIL CASE Before: ALFREDO C. MARQUEZ X Decision by Court. This action came to hearing before the Court with the judge named above presiding. The issues have been heard and a decision has been rendered. IT iS ORDERED AND ADJUDGED Judgment is entered in favor of the defendants and against the plaintiffs. Clerk: W. J. Furstenau (By) Deputy Clerk /S/ RENEE LUDEKE Renee Ludeke Date 10/16/84 X 405(g), provides: 24a APPENDIX F STATUTORY PROVISIONS INVOLVED Section 205(g) of the Social Security Act, 42 U.S.C. Judicial review. Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action com- menced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment af- firming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the 25a court shall review only the question of conformity with such regulations and the validity of such regula- tions. The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modi- fying or affirming was based. Such additional or modified findings of fact and decision shall be re- viewable only to the extent provided for review of the orignial findings of fact and decision. The judgment of the court shall be final except that it shall be sub- ject to review in the same manner as a judgment in other civil actions. Any action instituted in accord- ance with this subsection shall survive notwithstanding any change in the person occupying the office of Sec- retary Or any vacancy in such office. 2. Section 205(h) of the Social Security Act, 42 U.S.C. (Supp. I11) 405(h), provides: finality of Secretary's decision. The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any pe: - son, tribunal, or governmental agency except as 26a herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section{s] 1331 or 1346 of title 28 to recover on any claim arising under this subchapter. US GOVERNMENT PRINTING OFFICE 1987 — 161 46340309 OPPOSITION BRIEF James Chilicky, ET AL. Wut E. Moras Attorney for Respondents Southern Arizona Legal Aid, Ine. 155 East Alameda Stree: Tucson, AZ 85701-1299 (602) 623-9461 coos Lae ee i Petitioners are Richard Schweiker, former Secretary of Health and Human Services; John Svahn, former Com- missioner of the Social Security Administration ; and Wil liam R. Sims, Director of the Arizona Disability Deter. mination Service. Respondents are James Chilicky, Dora Adelerte, and Spencer Harris. ‘i TABLE OF CONTENTS Statement Of The Case : This Court Should Not Grant The Petition _. Coodusion —— oes TABLE OF AUTHORITIES Page Cases: Bivens v. Siz Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971) a passim Bowen v. Michigan Academy my Family Physi- cians, — U.S. —, 106 S.Ct. 2133 (1986) 17 Bush v. Lucas, 462 U.S. 367 (1983) 0 passvm Carey v. Piphus, 435 U.S. 247 (1978) 6, 12,13 Carlson v. Green, 446 U.S. 14 (1980) —_ . 9 Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981)... 2 Flemming v. Nestor, 363 U.S. 603 (1960) 0 20 Heckler v. Day, 467 U.S. 104 (1984) ao YS Heckler v. Ringer, 466 U.S. 602 (1984) 17, 18, 19, 20 Mathews v. Eldridge, 424 U.S. 319 (1976) _____.6, 16, 18 19, 20, 22 Medical Fund-Philadelphia Geriatric Society v. Heckler, 804 F.2d 33 (3rd Cir. 1986) . — United States v. Gilman, 347 U.S. 507 (1954) 00 —si88 United States v. Standard Oil Co., 332 U.S. 301 (1947) 8,9 Weinberger v. Salfi, 422 U.S. 749 (1975) 15, 16, 17, 18, 19, 20 Constitution, Statutes and Regulations: US. Const.: Amend. I —_ au © Amend. V (Due Process Clause) 2, 3, 11, 17 iv TABLE OF AUTHORITIES—Continued Page Social Security Act: Tit. I, 42 U.S.C. (& Supp. II1) 4 401 et seq. 5 42 U.S.C. § 405(g) 4, 15, 16, 21 42 U.S.C. § 406(h) ci 42 U.S.C. (Supp. IIT) §423 00 Tit. XVI, 42 U.S.C. (& Supp. IIT) $1381 et seq. 5 28 U.S.C. § 1331 dG, 7, 18, 19 No. 86-1781 In The Supreme Court of the United States October Term, 1986 Richard Schweiker, ET AL., PETITIONERS v. James Chilicky, ET AL. RESPONSE TO THE PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ° Respondents James Chilicky, Dora Adelerte and Spen- cer Harris hereby oppose the Petition for a Writ of Cer- tiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. —o 1 STATEMENT OF THE CASE 1. Respondents are recipients of disability benefits paid under Title II or Title XVI of the Social Security Act of 1934, as amended.' All had regularly received benefits prior to 1980, when they underwent continuing disability. reviews (‘‘CDRs’’) conducted to determine whether they still met the disability requirements of federal law. As the petition for certiorari notes, the Arizona Disability Deter- mination Service (‘‘ADDS’’), headed by Petitioner Sims, had immediate responsibility for both the CDRs and an initial decision on Respondents’ continued medical eligibil- ity under Title II or Title XVI. Petitioner Sims and his staff acted, however, at the continuing direction of federal administrators. See Ellis v. Blum, 643 F.2d 68, 70, 72, 75- 76 (2d Cir. 1981). This threshold review culminated in termination of Respondents’ disability benefits. Respondents pursued available administrative remedies and won reinstatement of benefit payments. They also filed suit against Petitioners alleging, inter alia, that Petitioners had knowingly conducted, directed or authorized a CDR process which resulted in initial benefit terminations without due process of law. In part, the Com- plaint indicated that these violations of the Fifth Amend- ment inhered in decisions by Petitioners Schweiker and Svahn to accelerate the CDR process, thus forcing the ADDS to dispose of far more cases than its staff could re- ' The Petition adequately cites to all matters, also set forth herein, by referencing the accompanying appendices, which re- 3 view with minimal fairness to recipients. The Complaint also cited Petitioners’ willful refusal to acquiesce in the law of the circuit, when conducting CDRs, as a further denial of due process. The Court of Appeals correctly noted, however, that Respondents alleged additional violations of the Fifth Amendment in the course of CDRs, including: 1. Knowing use of unpublished criteria, rules and standards contrary to the Social Security Act. 2. Intentional disregard of dispositive evidence favorable to beneficiaries. 3. Purposeful selection of biased physicians and staff to review claims. 4. Imposition of quotas, requiring a minimum number of terminations regardless of the evidence in any given case. 5. Failure to review impartially adverse de- cisions. 6. Arbitrary reversal of favorable decisions. 7. Denial of benefits based on the type of dis- abling impairment. 8. Unreasonable delays in receiving hearings af- ter termination of benefits. The District Court dismissed all corresponding dam- age claims’ on the ground that they were barred by Peti- 2 Respondents had previously withdrawn claims for declara- tory and injunctive relief on behalf of a class of disability recip- (Continued on following page) 4 tioners’ qualified immunity from any such liability. In doing so, however, it expressly considered only the allega- tions of improper acceleration of the CDR process and non- acquiescence in the law of the circuit. and necessitated by allegedly unconstitutional benefit ter- minations afforded all the process due Respondents. The Court of Appeals denied Petitioners’ Motion for Rehearing and suggestion for a rehearing en banc, which raised the question of subject matter jurisdiction over Re- spondents’ damage claims. THIS COURT SHOULD NOT GRANT THE PETITION factors are not present here, nor does 4 405(h) compel the same result in this case. Petitioners warn of countless damage actions, disrupt- she can never obtain more thar. nominal damages in a Biv- ens action claiming an original deprivation without due process. Carey v. Piphus, 435 U.S. 247 (1978). This principle provides an adequate safeguard against an avalanche of litigation proceeding without regard for the normal operation of the administrative process. In- deed, it positively encourages pursuit of administrative remedies as an essential predicate to any Bivens action a recipient might plausibly choose to maintain. Furthermore, success in the administrative arena merely wins reinstatement of modest benefit payments. An inordinate number of severely-disabled persons, depen- dent on subsistence incomes regained only through a con- test with the SSA bureaucracy, will scarcely have the wherewithal to sue its representatives in an outpouring of subsequent Bivens actions. Petitioners characterizes the damage claims in this ease as bordering on the frivolous, apparently because Re- spondents eventually did regain benefits through the ad- ministrative process. The implication that they can no longer point to any uncompensated losses, entitling them to damages, is untenable. Mathews v. Eldridge, 424 US. 319, 331 (1976) (unconstitutional termination of bene- fits may ‘0! st losses that simply cannot be compensated through a »-*reactive award after an administrative hear- ing). This Court should decide the instant petition on its own merits, rather than postponing its consideration until it rules on the petition pending in Cooper v. Kotarski. The question presented in Kotarski deals with application of Bush to a Bivens claim based on disciplinary action against 7 a probationary fed. ral employee. 1: merely invites further consideration of the Bush doctrine in its traditional setting. Whatever the disposition, it cannot aid materially in de- termining whether Bush should control in the far different context of social welfare programs. la. The litigation in Bush implicated three compet- ing interests, each of considerable significance in itself. The Federal Government depends, for its very functioning, on a loyal, efficient and well-disciplined civil service. These underpinnings are inevitably weakened if civil -ervants can pursue a Bivens remedy against their superiors. The judicial process affords a limited, unsatisfactory means of determining the ultimate impact on the Government's own functioning. Bush, 462 U.S. at 388-59. Conversely, adequate protection for the constitutional rights of personnel forming a vast national workforce re- mains a paramount concern in a society dedicated to basic civil liberties for all citizens. Neither loyalty, morale nor efficiency thrives if civil servants are remediless in the face of adverse employment action flouting those guaran- tees. Bush, 462 U.S. at 382-86. Such considerations be- come especially significant where, as in Bush itself, their exercise of First Amendment rights animates personnel disputes. The public interest in learning the truth about governmental affairs peerliarly within the knowledge of civil servants may suffer real damage, if federal employees are silenced by untoward and unchecked sanctions. Id., 462 U.S. at 390-91 n. 37. Congress has recognized the necessity for delicate, but comprehensive, adjustments among these unusually im- portant national interests, which remain in constant ten- of damage remedies would invade a domain properly re- served for the legislature. /¢., 403 U.S, at 396, citing United States v. Gilman, 347 U.S. SOT (1954) and Uwited States v. Standard Oil Co., 332 U.S. 301 (1947). Resolu- tion of the claims in both Gilman and Standard Oi ulti- -— 6 —s— mately turned on the nature and significance of juridical relationships between the United States and its employees. Congress had the demonstrable, paramount interest as well as expertise in regulating them, and in determining whether a breach of their attendant legal duties should be answer- able in damage actions. Bush, 462 U.S. at 378-80, citing Bivens, supra and emphasizing that its references to u- man as well as Standard Oil foreshadowed the principles, if not the result, handed down in Buch itself. Bivens neither cited nor alluded to any sphere of fed- eral activity, outside Government employment, presenting special circumstances in which the damage remedy i broad: ly sanctioned might prove unavailable, as a matter of sound judicial deference to Congress. Id., 403 U.S. at 396-06. Bush represented the logical application of doctrines can’ vassed in Bivens. It did not inaugurate a retreat from the principle that Bivens remedies are the norm, rather than the exception, where federal officials commit constitutional torts. See, eg., Bush, 462 U.S, at 377-78, citing Carleon ©. Green, 446 U.S. 14 (1980) (Bivens remedy lies against fed. eral employees even if injured party may sue the Govern ment itself for damages caused by the same tortious com duet). In short, this Court has never yet precluded nor warned against a Bivens remedy outside the minutely reg ulated, peculiarly-sensitive context provided by the Gov. ernment's relations with its own employees. b. Petitioners’ attempts to draw a close analogy be- tween the considerations operative here and in Bush do not succeed in raising a substantial question of federal law. Their reliance on Heckler v. Day, 467 US. 104, 111-15 (1984) is misplaced because it ignores the narrow focus a of the decision. Dew originated as a challenge to delays in processing disability benefit claims through the admin istrative appellate process. /4., 467 U.S. at 110-11 That was the particular problem which had “inspired almost annual Congressional debate."’ J4., 467 U.S. at 112. Such continued legislative attention to it proved = nificant simply because it revealed Congressional intent with unusual clarity: Congress had repeatedly considered but expressly rejected measures establishing mandatory deadlines for claims adjudications, I4., 467 U.S. at 111, 117-18 and 2.30. Where Congress consistently focuses on deficiencies in one facet of agency operations it has ample power to address, but regularly withholds a particlar, pro- posed remedy, the judiciary should not act in its stead by ordering the very steps the legislature has explicitly re- jected. Jd. 467 U.S. at 119. Congress has never grappled, over and again, with the extent to which the administrative process adequately compensates individuals for all losses caused by wrongful termination of their disability benefits. The legislature has never deliberated on any form of redress except even: tual reinstatement of payments, coupled with an award of benefits denied in the interim. Provisions to that effect appeared in the legislation creating the disability benef! programs now at issue. They have not occupied Congres sional attention at any subsequent time. They have cer: tainly not attracted continuing debate, demonstrating an affirmative Congressional intent to foreclose any addi- tional redress for the victims of unlawful terminations. Petitioners cite recent amen’ oats to the Socal Se- curity Act affecting operation of agency appeal procedures nl im termination cases, See, eg. 42 U.S.C. (Supp. IIT) § 423 (a). They analogize them to the constant, close regulation Congress has pursued in adjusting relations between the Government and its civil servants. The amendments on which they rely merely seek to minimize the incidence of erroneous terminations. If they succeed in furthering that objective, they will reduce the potential for Biecms actions alleging that agency officials terminated benefits without due process of law. The amendments do not, however, reflect continuing Congressional oversight of the compensation indi vidual should receive in either administrative or judicial forums, if they are nonetheless denied property interests through agency action violating the Fifta Amendment. Bush. by contrast, turned on the fact that Congress had expressly considered and then decided, in comprehensive terms, every specific form of redress the administrative process had te afford victims of unconstitutional acts provable in agen y adjucheations themselves. c. The Federal Government does not maintain jurich. cal or other relationships with disability reeiprents remotely similar to those obtaining between the United States and ite civil servants. It obviously does not depend, for its own functioning, on constant, fine adjustments in its deal: ings with severely disabled citizens. Those transactions are largely matters of bureaucratic routine. (mee the Se: cial Security Administration finds applicants eligible for benefits, it simply sends them periodic payments in pre- scribed amounts dutil they no longer meet the relatively few requirements of substantive law. Reciments do not continuously render serviers or any other performance to the Government, which might lead to the complex disputes reflected in the conveluted admin- istrative and judicial proceedings at issue in Bush, 462 US. at 369-72 The public interest im civil service rege- lations protecting valuable sources of information on na- tienal affairs has no analog in the present context. Hence, Congress need not resort te repeated, intricate adjust- ments among governmental, individual and public inter- ests, which it may deem best served by the fullest possible administrative redress for unconst:(utional acts jeopardis- ing all three. Congress has not in fact done sa, ewen where, as here, the Government pernodieally evaluates the continued med- ical eligibility of SSA recipients and terminates any it then finds unqualified for the program. The legislature has merely established and, occasionally, extended certain safeguards against erroneous cessations, It has never specifically addressed the separate question of the redress due victims of unconstitutional deprivations. They may obtain lest payments through an administrative appeal, but actly the same procedure is open te any terminated recient who was not victimized by unconstitutional acts. Henee, the remedy «amply cannet embedy a Congressional determination of the only redress appropriate im cases such as that at bar. Allowance of a Berens remedy does net upset any bal- ance of interests struck by this scheme: A terminated re- ciprent who fails to re-establish eligibality through its mech- ahis™ms cannot recover more than nominal damages for any deprivation inflicted witheat due process. Carey v. Piphus, supre. Uf it bas any effect im this particular instance, a 13 Bivens remedy actually encourages terminated recipients to pursue the one force of administrative redress Con- gress has considered, before they can assert any substan- tial basis for a damage action. In Bush, by contrast, a Bivens remedy for First Amendment violations appeared an immediate, attractive alternative to lengthy adminis- trative proceedings : The potential recovery on such a claim did not depend upon a prior agency adjudication deter- According to the Government, the SSA administrative scheme also affords Respondents adequate compensatory relief for any deprivations they have suffered. See Bush, 462 U.S. at 388. Indeed, Petitioners imply that their op- ponents lack any real damages precisely because they pre- vailed in the administrative appellate process. In fact, these procedures merely enable a wrongfully-terminated recipient to regain benefits that should never have been denied him in the first place. Their loss certainly does not represent the only harm individuals suffer when govern- ment officials deprive them of property interests without due process. Carey, 435 U.S. at 262-64 and n. 20 (damages for emotional distress, including mental suffering or emo- tional anguish, recoverable when caused by unjustifiable deprivation accomplished without due process). Petitioners do not claim that this principle is inap- plicable in Bivens actions. They do not deny that a bene- fit cut-off represents an objective, quantifiable injury, separate and distinct from subjective distress attributable to the same unconstitutional action. Carey, 435 U.S. a 262-64. Unlike the petitioner in Bush, 462 US « 86, Re- spondents could not present their constitutional claims to 14 agency adjudicators. Hence, Congress has never had oc- casion to determine whether SSA administrative remedies afford the fullest manageabie redress for all injuries flow- ing from the unconstitutional acts of Government officers. The legislature could not possibly have made a judgment, now entitled to judicial deference, that the optimum pos- sible redress is availabie in agency forums. | Petitioners warn that a Bivens remedy will deter federal officials from properly discharging their duties in continuing disability investigations. The Government thus draws another unpersuasive parallel to Bush. Offi- cials responsible for disciplinary action against a civil ser- vant claiming a denial of her constitutional rights must ap- pear and defend their conduct in trial-type administrative proceedings. /d., 462 U.S. at 386-88. If that already sub- stantial obligation were accompanied by a need to defend Bivens suits, the cumulative burden on administrators might well deter them from proper disciplinary action in future cases. /d., 462 U.S. at 388. The administrative process governing adjudication of disability benefit claims is non-adversarial, by design. Agency officials responsible for benefit termination need not appear at any stage to defend, present evidence on or argue in support of their decisions. The first and only occasion on which they might have to do so would arise in a Bivens action itself. This Court has never credited the notion that a Bivens remedy should be denied because the mere obligation to defend the litigation might chill forth- right administrative action in future encounters with the same subject matter. In sum, Petitioners fail to establish any special circum- stances, within a tenable reading of this Court’s prece- 15 dents, counseling against a judicial grant of the Bivens remedy Respondents obtained. d. According to Petitioners, Congress has, how- ever, expressly declared its intent to limit Respondents to the redress afforded by the administrative process. They rely on 42 U.S.C. §§ 405(g) and (h), read against a few decisions of this Court. Petitioners do not invoke either provision to mount a direct, unqualified attack on subject matter jurisdiction over Bivens claims. Rather, they deem the jurisdictional concerns of §§ 405(g) and (h) plainly indicative of a Con- gressional intent to foreclose all damage claims traceable to benefit terminations. Petitioners note that the second sentence of § 405(h) shields the Secretary's findings of fact and decisions from any form of review, except that provided elsewhere in § 405. Section 405(g) sets forth the permissible means of obtaining such review. Since §405(g) merely contem- plates proceedings for restoration of lost benefits, Con- gress must have intended that as the sole, permissible re- dress for terminations, whatever their actual consequences. The second sentence of § 405(h) clearly refers to the first. See Weinberger v. Salfi, 422 U.S. 749, 757-58 (1975). The opening sentence, in turn, restricts the scope of the second to ‘‘findings and decisions of the Secretary after a hearing."” Emphasis supplied. Respondents, however, never disputed the findings or decisions reached in their cases after administrative hearings. Rather, their Bivens claim arose from the initial actions of state officials in summarily terminating their benefits and forcing them to seek Secretarial hearings, subject to the extraordinary de- 16 lays recounted in Day, 467 U.S. at 111-18 and acknowledged as constitutionally significant in Mathews v. Eldridge, 424 U.S. at 341-42. Those actions did not amount to the See- retary’s findings or decisions after any hearing within the contemplation of §405(h). See Weinberger v. Salfi, 422 U.S. at 764-67. This Court need not decide whether Petitioners’ com- bined reading of Bush and § 405(h) might have some color- able appeal in a setting other than that now before it. The argument simply does not demonstrate that Congress in- tended to bar all relief, except benefit restorations, where the Secretary’s state delegates lawlessly* extinguish entitle- ments with the conscious approval of the Secretary and the The Court of Appeals permitted maintenance of a cor- responding Bivens action under 28 U.S.C. $1331. That, Petitioners contend, flouts other provisions of 42 U.S.C. §§ 405(¢) and (h), which must, therefore, be read as a Congressional prohibition against Bivens remedies. In part, they attack the Circuit's allowance of § 1331 jurisdiction as an open invitation to bypass administrative remedies at the core of the adjudicatory scheme. As Re- spondents have shown, a Bivens claim based on due process violations lacks any tangible value unless a disability re- cipient not only exhausts SSA administrative remedies, but prevails at the conclusion of the process, before prose- cuting a damage action. ¢ Eg. by deliberately failing to follow the procedures re- extend ey dae process batare os eral ovidiantiany hansien on on ensuing termination, as set forth in Eldridge, 424 U.S. at 332-47. 17 The Government relies primarily on Heckler v. Ringer, 466 U.S. 602 (1984) to support its reading of the interplay between 42 U.S.C. § 405(h) and 28 U.S.C. $1331. Ringer (466 U.S. at 615-16) construed 42 U.S.C. § 1395ii, the Medi- care provision incorporating the third sentence of 4 405(h). According to Petitioners, Ringer established that litigants cannot evade the strictures of § 405, by pleading constitu- tional infirmities in the methods used to determine benefit claims, and thus invoke federal question jurisdiction. The Government concludes that Respondents have resorted to that very technique in presenting their Bivens claims. Petitioners, however, do not even cite Bowen v. Michs- gan Academy of Family Physicians, — U.S. —, 106 8. Ct. 2133 (1986). There, physicians challenged Medicare regu- lations differentiating the benefit amounts payable for similar professional services. They claimed, in part, that the rules violated the Fifth Amendment. The Sixth Circuit held and, on remand, reaffirmed that 28 U.S.C. § 1331 pro- vided jurisdiction over the subject matter, notwithstand- ing this Court’s decision in Ringer. Id., 106 8. Ct. at 2135. Citing Weinberger v. Salfi, 422 U.S. at 756-62 and Ringer, supra, the Government argued that 42 U.S.C. § 405(h) ‘‘prevents any resort to the grant of general fed- eral question jurisdiction contained in 28 U.S.C. § 1331." Michigan Academy, 106 8. Ct. at 2140; footnote omitted. This Court rejected that absolute view. In creating the Medicare program, Congress hed clearly manifested an in- tent to preclude judicial review of administrative decisions fixing individual benefit amounts. It had not expressed an equally clear intent to bar parties from obtaining review where they presented ‘‘substantial . . . constitutional chal. lenges to the Secretary's administration of Part B of the 18 Medicare program."’ /d., 106 S. Ct. at 2144; footnote omitted. The fact remains that Ringer (466 U.S. at 607-609) also arose from a constitutional challenge to a Secretarial policy prohibiting certain Medicare reimbursements. This Court then held that 42 U.S.C. § 1395ii must be construed and applied in exactly the same manner as 42 U.S.C. §405(h). It followed that § 1331 jurisdiction did not lie over claims indistinguishable from those at issue in Mich:- gan Academy. Ringer, 466 U.S. at 615-16. In Michigan Academy, 106 S. Ct. at 2141, the Court avoided a result Ringer apparently mandated by simply noting that while § 1395ii was modeled on § 405(h), the two provisions are adapted to different statutory schemes. Nothing in Ringer suggested such a ready means of distinguishing the effect each has on § 1331 jurisdiction, especially in the same operative circumstances. The conclusion that ‘Michigan Academy . . . severely restricted the decision in Rimger’’ seems inescapable. Medical Fund-Philadelphia Geriatric Center v. Heckler, 804 F.2d 33, 38 (3rd Cir. 1986). It is even more doubtful that Ringer, a case ultimately dealing with the jurisdiction- al consequences of § 1395ii, remains a leading pronounce- ment on the extent to which § 405(h) forecloses § 1331 jur- isdiction. That is especially true where an action brought under § 1331 challenges routine methods of determining benefit claims. Petitioners’ Bivens claims, like those pre- sented in Michigan Academy, had precisely that founda- tion. In any event, neither Ringer nor such antecedents as Weinberger v. Salfi and Mathews v. Eldridge assist Pe- titioners’ reading of § 405(h) and $1331. As Salfi (422 U.S. at 760-61) observed, the ultimate objective of litiga- tion in this area’ is ordinarily receipt of social security benefits. Since accompanying constitutional claims are merely designed to remove a legal impediment to an award, they “‘arise under” Title II of the Social Security Act, within the meaning of 4 405(h). /d. In cases typified by Eldridge (424 U.S. at 331), continued receipt of benefits or protecting an SSA entitlement, they would never be tendered. /d.; accord, Ringer, 466 US. at 614-15. That is simply ot this case. Respondents lacked any tangible interest in maintaining Biers’ claims based on due process violations until they had re-established their entitlement to continued benefits. At that juncture, all 20 efforts at winning benefits, whether by overcoming some impediment to their receipt, or by eliminating obstacles to adequate protection of uninterrupted payments, were nec- essarily at a complete end. Respondents’ sole objective was an award of damages compensating them for such in- juries as emotional distress, occasioned by a deprivation of benefits they had already reversed. Nothing in Ringer, Salft or Eldridge® supports the notion that corresponding claims arose under Title Il. Rather, those cases analyzed the ‘‘arising under’’ proviso based on a premise—receipt of benefits remains the ultimate unachieved goal of con- stitutional litigation—that could not obtain in this Bivens action. 2. Even if the Court grants the petition in K otarski, the ultimate disposition of the case will have little, if any, significance here. Presumably, the Government thinks otherwise because the Court might not only grant it, but hold that even though a probationary federal employee lacks the administrative remedies discussed in Bush, he is still without a Bivens remedy for unconstitutional in- juries to his employment interests. Petitioners would un- doubtedly analogize his circumstances to those of Respon- dents: They, too, could not seek redress for emotional distress, stemming from deprivations of property without due process, in the only administrative forum open to them. Congress intended that result and no other in both instanc- es, or so Petitioners will apparently argue. ® Sprety acting, in ent, Gus 0 due grees calm con be maintained novo in District Court, even if it was not pre- viously raised in the course of fully exhausting administrative remedies. Eldridge, 424 U.S. at 329 n. 10, citing to Flemming v. Nestor, 363 U.S. 603 (1960). ~ a —— 21 Assuming that this extended line of conjecture is sound, such developments in Kotarski will have little consequence for the instant case. They would merely af- firm that as Bush concluded, Congress has repeatedly con- sidered all conceivable questions touching on the redress due any federai employee claiming unconstitutional mis- treatment at the hands of his superiors. Its decision not to afford particular redress for probationary employees should again enjoy judicial deference. ‘The history of the social security program does not include similar leg- islative attention to the redress properly due terminated disability recipients, especially where they are denied constitutional rights by initial agency action extinguishing longstanding entitlements. Respondents respectfully submit that this Court should rule on the instant petition without regard to any action it may take in Kotarski. CONCLUSION After successfully exhausting administrative remedies, Respondents sought damages under Bivens for unredressed injuries flowing from a threshold denial of continued bene- fits. This Court has never indicated that such a claim runs afoul of either the doctrine enunciated in Bush or proper administration of 42 U.S.C. §§ 405(g) and (h). Nothing in the applicable statutory scheme, as amended, supports Petitioners’ reliance on Bush, nor do its provi- sions otherwise bar a Bivens remedy here. 22 At bottom, the Government is arguing that its repre- sentatives may direct initial benefit terminations, flout the due process requirements Eldridge (424 U.S. at 332-47) contemplated prior to an oral hearing on the deprivations, and still remain unaccountable for every ensuing injury, other than eventual restoration of benefits to those vic- tims who persevere in regaining the very property they should never have lost. It would require far more per- suasive evidence than Petitioners adduce to conclude that Congress affirmatively approved or desired such untoward results, especially in fashioning a program of income main- tenance for dependent, severely-disabled citizens. Respondents request that the Court deny certiorari in the instant case. Respectfully submitted, Sovruern Arizona Lecat An, Inc. /s/ Wiut441,M E. Morris William E. Morris Attorney for Respondents June 1987 PETITIONER’S BRIEF ~ Sees Coot 8 (\\ FILED No. 86-1781 VY DEC 8 987 a Iu the Supreme Court of the United Respondents also attempt (Br. 20) to distinguish Bush v. Lucas on the grounds that Bush could have been demoted or dismissed for such cause as would promote the efficiency of the service. Thus, “Bush's ‘entitlement’ to continued employment was decisively qualified” and “the remedies Congress afforded him * * * were available only because Congress had created” a remedial scheme designed to correct the alleged constitutional violation (ibid. (emphasis in original)). Respondents argue (Br. 20 & n.26) that their own reinstatement, by contrast, was “just a restoration of something to which [they were] entitled regardless of the government’s interests and regardless of any showing of abuse.” Bush, however, had a statutory right to be dismissed only for “cause.” That right is comparable to “the interest of an individual in continued receipt of [disability] benefits [which is also] a statutorily created ‘property’ interest pro- tected by the Fifth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976), citing Arnett v. Kennedy, 416 U.S. 134, 166 (1974) (Powell, J., concur- ring in part), and Board of Regents v. Roth, 408 U.S. $64, 576-578 (1972). Thus, Bush’s entitlement to continued employment provided there was no cause for dismissal was no more “decisively qualified” than respondents’ right to continued benefits provided they were still disabled. Amicus ACLU argues (Br. 6) that the 405(g) review process cannot possibly remedy respondents’ wrongs because “respondents’ alleged injuries flow from the Secretary's corruption” of that process. Since “the essence of respondents’ charge ts that the integrity of the administrative process has been corrupted by imterests external and antithetical to the rule of law,” the ACLU contends that a separate forum and a separate remedy must be provided for that clam. But even setting aside the fact that this supposedly “corrupt{]” process in fact restored respondents’ benefits in full, this argument simply ignores the judicial review provision in Section 405(g) as interpreted by the series of cases dis- cussed in text. Courts can and do consider under 405(g) consti*utional — to the administrative process, including claims of systemwide se. through the ALJ hearing stage. But it provides no support whatsoever for respondents’ contention that restoration of benefits is “no post-deprivation remedy at all for the constitu- tional violations they allege” (Br. 11). Additional injuries prox- imately caused by an alleged wrong do not change the nature of the wro ag alleged, and the fact that a particular remedy corrects only some, but not all of those injuries, does not change the fact that it provides some relief for the wrong in question. Respondents and amici seem to think that by drawing out the chain of causation they have created a new constitutional wrong that is not addressed at all by 405(g). That is plainly incorrect.‘ * Respondents rely in part on a recent decision by this Court under the Tak- ings Clause to support thei assertion that Section 405(g) leaves unreviewable certain claims of constitutional wrongs, and therefore requires recognition of an implied constitutional remedy. Firsi . nglish Evangelical Lutheran Church v. County of Los Angeles, No. 85-1199 (June 9, 1987). We do not read their brief as asserting a claim under the Takings Clause, and any such argument would obviously be untenable since no Takings Clause claim appears in respondents’ complaint and none was ever raised or considered below. Respondents apparently seek to argue by analogy, however, that jusi as Firs/ English recognized a damage remedy under the Takings Clause for a tem- porary taking of property, there should be an implied cause of action of some sort for the temporary deprivation of disability benefits. The government ts not “reheved of paying compensation for having temporarily taken someone's property so long as the property was eventually given back” (Br. 16). But that analogy ts inappropriate as a justification for the present suit. First English involved a claim against a county under the Takings Clause of the Fifth Amendment for the temporary deprivation of a traditional form of property, and this Court concluded that the constitution mandated that just compensation be paid. In this case a violation of the Due Process Clause ts alleged and the remedy sought is damages from government officials im their personal capacity. There is no reason to suppose that the nature and measure of a money judgment under the Takings Clause carry over to all other con- stitutional provisions or translate in other contexts into a Bivens action against individual officials. Futhermore, no “takings” action could even be brought against the United States, much less an individual official, for a temporary loss of benefits where the “property” interest in question ts wholly a creature of statute and the same statute that provides the benefits also sets the procedures that must be followed to recover terminated benefits. See, ¢.g.. Nollan v. California Coastal Comm'n, No. %-133 (lune 26, 1987), slip op. 7-8 n.2; Bowen v. Gilliard, No. 86-509 (June 25, 1987), slip op. 16-21; Richardson v. 7 2. In contesting our argument that Section 405(h) is an ex- press declaration by Congress that the remedies it has provided in 405(g) are the exclusive mode of redress for a wrongful ter- mination of benefits, respondents have simply provided the Court (Br. 27-37) with several additional variations on their contention that Section 405(g)’s denial of consequential damages denies them all redress for unconstitutionally wrongful benefit denials. “[R}jeading § 405(h) to preclude federal question jurisdiction over those claims,” they argue (Br. 33 (emphasis in original)) “denies respondents not only a damages remedy but any judicial forum in which to challenge the petitioners’ alleged- ly unconstitutional conduct.” it is unnecessary to belabor this point further. Several observations are in order, however, con- cerning the specific operation of Section 405(g) and (h). a. Respondents contend that the second sentence of Section 405(h) — providing that “[njo findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or govern- mental agency except as herein provided” — “has no application whatever” to their claims (Br. 29). They base this argument on Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 679 (1986), where this Court construed the phrase “decision of the Secrc!ary” to mean those determinations made by “the Secretary after a hearing.” Respondents argue that they are challenging not the decision of the Secretary after a hearing (which, in fact, restored their benefits) but rather “the initial abuses by state officials, acting under color of federal law, in unconstitutionally terminating their benefits in the first place” (Br. 28). This argument ignores the clear intent of the first two sentences of 405(h) to “assure that administrative exhaustion will be required.” Weinberger v. Saifi, 422 U.S. 749, 757 (1975). In Michigan Academy, there was no administrative mechanism for challenging the regulation in question, and the Court therefore permitted review of the regulation under Section 1331 “because there is no hearing, and thus no administrative remedy Beicher, 404 U.S. 78, 80-81 (1971), Flemming v. Nestor, 63 U.S. 603, 611 (1960). to exhaust” (476 U.S. at 679 0.8). Here, by contrast, there is an admunisirative remedy under Section 405(g) for abuses by state officials, and the only way respondents could challenge those abuses was by obtaining a “decision of the Secretary made after a hearing.”’ Once they have done so, the second sentence of Section 405(h) makes clear that, if still dissatisfied, they may seek judicial review, but only pursuant to 405(g) and only to the extent of the remedies provided by 405(g). Alternatively, respondents contend (Br. 29) that Michigan Academy indicates that Section 405(h) has no application to at- tacks upon “[bjroadly applied policies and practices” of the Secretary. But that is plainly .acorrect. In Michigan Academy, this Court emphasized that there was simply no statutory review procedure by which to present the constitutional challenge to the regulation at issue (476 U.S. at 681 n.12). By allowing such a challenge under general federal question jurisdiction, therefore, the Court “avoidjed] the ‘serious constitutional question’ that would arise if we construed [the revicw provision] to deny a judicial forum for constitutional claims arising under Part B of the Medicare program” (ibid.). No such “serious constitutional question” arises here because respondents’ challenge to the policies and practices of the Secretary are fully cognizable within Section 405(g), either in a class action for injunctive and declaratory relief ( Yamasaki, Heckler v. Day) or through ad- ministrative proceedings followed by judicial review. Those practices and policies only affect respondents to the extent of a * Allegations of sysiematn and unconstitutional abuse of the social sec unt y system might provide a bases for a warver of the exhaustion requirement per matting an ummediate resort to federal court on those clasms. ether im a class action or at the behest of an individual beneficiary. See City of New York, 467 U.S. at 462-486, Mathews +. Eldridge, 424 U.S. at 328-332; Weinberger +. Seffi, 422 US. at 763-767. This Court's cases make clear, however, that such a sult would sil fall waten the broad boundaries of Section 40%g) City of New York, 476 U.S. at 484-485, Mathews v. Eldridge, 424 U.S. at 327; Weinberger v. Seif, 422 U.S. at 757. Thus, although declaratory and injunctive relic! would be avaiable (he sole monetary remedy for an unconstitutional termina thon of Denefity based on allegations of systematx abuse of the system would be restoration Gace Senate ane am nae of Cars Genel demial of their benefits at some stage of the process. Injunctive or declaratory relief reforming this process in general or a rever- sal of a particular decision is therefore a remedy for the alleged wrong, notwithstanding that consequential damages are not provided by the statute.* b. Respondents also contend (Br. 31) that we have advanced an “indefensibly expansive reading” of the third sentence of Sec- tion 405(h), which bars federal question jurisdiction on any claims “arising under” the Social Security Act. Their claims, they assert, do not arise under the Act because they seek a form of relief not provided by the Act. This case, however, “arises under” the Act because Section 405(g) provides a remedy for the wrongful termination of benefits, whether the legal error is statutory or constitutional in nature. Weinberger v. Salfi, 422 U.S. at 760-761. Certainly a claim for restoration of benefits, alleging a violation of due process, would have to proceed under 405(g) because due process claims are fully cognizable within 405(g) (Mathews v. Eldridge). The nature of the relief sought does not change the character of the alleged wrong (cf. Davis v. Passman, 442 U.S. 228, 244 (1979) (the existence of a constitutional clam does not settle the further question of “whether a damages remedy ts an appropriate form of relief"), and i cannot be allowed to determine whether a claim arises under the Act. Consequential damages in a Bivens suit are a form of relief avaiable on some constitu- * Incredibly, respondents argue (Br 32-33) that because they prevasied at the admunistrative level they were somehow cheated out of a sudictal decison that thew constitutional nghts wers violated They contend that this Court should provide an umphed action for additional damages wmply in order to give them Articte II] standing to contenue to pursue thew clams in federal court Respondents have put the cart before the horse, arguing not as most ltrgants do that they have standing because they are entitled to damages but rather that they must be entuled to damages so as to give them standing We need not, however, be m such «a rush to myect the federal courts mito every dispute ( onstrtulnmonal arguments of the sort made by petitioners may be fully awed @ court ether when the “decision of the Secretary” 6 adverse to the clarmant of on Orbumetances in which exhaustion 1» property waived, im a Sec tron 40% g) suet Drought unmediately upon the termination or threatened ter munation of benefits tional claims; but the request for such relief is not without due process, and the third sentence of 405(h) makes clear that such a claim cannot give rise to a suit 1331 but can only proceed [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1230%3A0. Public record. Not legal advice.